Abstract
Judicial activism is acquisition eminence in the current scenario. Judicial activism occurs when a judge ruling over a case allows his personal or political views to guide his decision when rendering judgment on a case. Activism is judicial policy making which furthers the cause of social change or speaks concepts such as liberty, equality or justice. The concept of judicial activism, thus the polar opposite of judicial restraint, the Apex Court and other inferior courts become campaigners and compel the authority to act and their strategies and also their administration.
Ideally, of course, the Law court should be like Baby Bear: It should get everything just right, to engaging in activism only when, We the People act in ways that we will later consider regrettable.
But that is impossible, so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more reverent Court and a more activist Court. Both Court will be controversial sometimes, and will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate govt. acts are worse. Only a Court inclined toward activism will strictly avoid such cases. It is significant to mention that through judicial activism courts have deeply impacted the govt policies and have forced them to take immediate actions .
In recent years, the law making has assumed new dimensions through judicial activism of the courts. The Judiciary has adopted a healthy trend of interpreting the law in social context. Judicial review is not judicial authority. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, even then only because they act last in time, not because their will is supreme.
Introduction
The judicial activism is use of judicial power to articulate and execute what is valuable for the society in general and people at large. Supreme Court despite its constitutional limitation has come up with winged colors as a champion of justice in the true sense of the word. “JUSTICE” these seven letter word is one of the most argued ones in the entire English dictionary. With the entire world people being linked it, there is no doubt about the fact that with changing tongues the definition does change. The judicial activism has touched almost every aspects of the life in India to do positive justice and in the process has gone beyond, what is prescribed by law or written in white and black. The thing is that the bench keep in mind that while going overboard to do fairness to common man must not overstep the limitation given by superior that is ‘Our Constitution’ is ‘supreme law of the land.’
Its rise can be traced back to 1893, when Justice Mahmood of Allahabad High Court delivered a dissenting judgement. It was a case of an under trial who could not afford to engage a lawyer, So the question was whether the court could decide his case by merely looking his papers, Justice Mahmood held that the pre-condition of the case being “heard” would be fulfilled only when somebody speaks.[1]
Judicial Activism suggests going beyond the usual constraints applied to bench and the Constitution, which gives judiciary the right to strike down any legislation or rule against the precedent if it goes against the Constitution. Thus, ruling against common opinion or judicial precedent is not necessarily judicial activism unless it is active. In the words of Justice J.S Verma, Judicial Activism must essentially mean “ the active process of implementation of the rule of law, essential for the preservation of a functional democracy”.
Judicial Activism is the view that the Supreme Court and other benches can and should artistically (re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of current society. [2]Judicial Activism believes that judges assume a role as self-governing policy creators or sovereign "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The idea of Judicial Activism is the polar contrary of judicial restraint.
Judicial Activism is the opinion that the apex Court and other juries can and should creatively (re)interpret the hands of the Constitution and the laws in order to serve the judges' own visions regarding the desires of contemporary society. [3]Judicial Activism trusts that benchesadopt a role as independent policy creators or independent "trustees" on behalf of humanity that goes beyond their traditional role as interpreters of the Constitution and laws. The idea of judicial activism is the polar opposite of judicial restraint.[4
Judicial Activism At Indian Scenario
The Indian Constitution, declared in 1950, generally gained its standards from Western models – parliamentary vote based structure and a free legal from England, the Fundamental Rights from the Bill of Rights, and federalism from the government structure in the U.S. Constitution, the Directive Principles from Irish Constitution. These innovative standards and fundamentals were acquired from the West and after that forced from above on a semi-medieval, semi-in reverse society in India. The Indian legal, being a wing of the State, has accordingly assumed a more revolutionary part than its U.S. partner in trying to change Indian culture into a present day one, by applying the cutting edge standards and thoughts in the Constitution through Court decisions. In early time of its construction the Indian Supreme Court was to a great extent preservationist and not extremist. In that period, which can extensively be said to be up to the time Justice Gajendragadkar wound up noticeably Chief Justice of India in 1964, the Indian Supreme Court took after the conventional British approach of Courts being lazy and not radical. [5]There was not very many law making judgments in that period. Equity Gajendragadkar, who wound up noticeably Chief Justice in 1964, was known to be star work. A significant part of the Labor Law which he created was judge made law e.g. that if a laborer in an industry was looked to be rejected for offense there must be an enquiry held in which he should be given a chance to protect himself. In 1967 the Supreme Court in Golakh Nath v. Condition of Punjab[6]held that the important rights in Part III of the Indian Constitution couldn't be revised, despite the fact that there was no such confinement in Article 368 which just required a determination of two third greater parts in both Houses of Parliament. Consequently, in KeshavanandBharti v. Condition of Kerala[7],13 Judge Bench of the Supreme Court overruled the Golakh Nath choice yet held that the essential structure of the Constitution couldn't be changed. [8]With reference to what finally is implied by `basic structure' is as yet not clear, however some later decisions have attempted to clarify it . The point to note, notwithstanding, is that Article 368 no place says that the fundamental structure couldn't be changed. The choice has in this way for all objectives and purposes altered Article 368. General number of choices of the Indian Supreme Court where it has assumed a activist part identifies with Art.21 of the Indian Constitution, and subsequently we are managing it independently. The apex court reflect in the keshavanandabharti case where court prevented the legislature to damage the basic structure of the constitution. For the first time a court held that a constitutional amendment passed by the legislature is invalid. It held that ‘LAW’ in Art.13 means rules and regulation made under ordinary legislative powers and not amendment under constitutional power. The best part of the decision was that it cannot be made invalid by any amendment by the legislature as the doctrine of basic structure of constitution was vague and amorphous[9].Another good case of judicial activism is bandhuamuktimorcha vs bihar[10]where the court claim that the right to oversee the implementation of a legislation that sought to abolish bonded labor,a practice totally forbidden by the Art.23 of the constitution that had survived because of the inaction on the part of parliament and the government.
Judicial activism might sound, for a lay man, a heavy-duty term but in the simpler manner is quite easy to know. We can say in that judicial activism is a practice by the judges that does not contain the balance of law, instead it hampers it. In judicial activism, the judge places his final conclusion with his heart and mind, which is emotionally handled. It, at times, works in our favor to save from the wrong decision to take place but at times it also backfires on us.
In other words we can easily say that judicial activism is exercise going beyond the normal law for the jury. There are some very significant cases which come in the talk whenever we discuss about judicial activism in India. Bhopal gas tragedy and the Jessica Lal Murder case are mid the top two. The latter was an exposed and shut case for all. Currency and muscle power tried to success over the good. But lately, with the help of judicial activism that the case came to at tiniest one decision. The two most prominent figures in the Bar Council of India whose names are the most inter related with judicial activism are Justice P.N. Bhagwati and Justice Krishna Ayer.
The one case, which stands apart from other cases, in the matter of judicial activism inI.C. Golak Nath v. State of Punjab[11], 11 judges Special Bench of the Supreme Court, was called upon to determine the Constitutional validity of the Constitution (Seventeenth Amendment), Act, 1964 in the instant case. The court by a majority of 6:5 gave a very bold decision which had far reaching consequences in the coming years. Before discussing the ratio of the judgment, it would be necessary to advert to the facts of the case briefly. The Constitution (seventeenth Amendment) Act, 1964 had amended Art.31-A of the constitution and included two enactments viz the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act 1962, in the 9th schedule to the Constitution and had placed them beyond attack. Article 31- A deals with saving of laws providing for acquisition of estates etc. even though they are inconsistent with or take away any of the rights conferred by Art.14, Art.19 or Art.31.[12]
Causes and Courses of Judicial Activism:
The following trends were the source for the rise of judicial activism — expansion of rights of hearing in the administrative process, excessive delegation without limitation, expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard rules of interpretation in its search to reach economic, social and educational purposes; and passing of orders which are unworkable.
The first core case of judicial activism through social action litigation was the Bihar under trials case. In 1980 it came in the form of a writ petition under Art.21, by some professors of law revealing the barbaric conditions of confinement in the Agra Protective Home, tracked by a case against Delhi Women’s Home filed by a Delhi law faculty student and a social worker. Then three journalists filed a petition for the prohibiting of the prostitution trade in which women were bought and sold as cattle.[13]
The Supreme Court giving directions to the CBI and summoning the head of the CBI to report on the hawala case reveals the breakdown of other machineries of the government. The court interference with the CBI working became unavoidable in the wake of the tactics of delay and technical evasion that was undertaken by the investigative agencies.
In Vishaka v. State of Rajasthan[14], Supreme Court held that in the “absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more chiefly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other organizations, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art.32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be preserved as the law declared by this Court under Article 141 of the Constitution.”
Considering the importance of Art.32 read with Art.142, it becomes necessary for the judiciary that it should perform its constitutional obligation where there is no legislation on the certain field and implement the rule of law[15]. Again, the Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan[16], acknowledged the importance of Art.142 of the Indian Constitution and said that the court has power under Art.142 to issue directions and guidelines for implementing and protecting the fundamental rights in the absence of any enactment. The court reiterated that any such direction, filling up the vacuum of legislation, is the law of the land. However, the Parliament has power to replace such directions e.g. the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 replaced the VishakhaStrategies for prevention of sexual harassment issued by the Hon’ble Supreme Court of India in the year of 1997.
Therefore, judicial activism is an attempt to realize hope and aspirations of the people and to strengthen the foundations of rule of law which is the bedrock of democracy. Secondly, judicial activism has been able to fill the vacuum made by legislation, executive and even the constitution in many ways. Take for instance, the apex court in Vishaka v. State of Rajasthan, even laid down proper guidelines in the absence of any statutory legislation. In the era of falling social values, judiciary, especially Supreme Court of India, has been able to maintain its dignity. But question arises whether this so called ‘weakest organ of democracy’ which is growing powerful day by day be left unchecked?
No doubt, we have the doctrine of checks and balances in our country, but it will not be wrong to say that it has totally failed to check the powers of the apex court. Reason for this is simple, both executive and legislature indulge in corrupt practices and are not in a position of checking powers of courts. We can take most recent instance of the reservation for backward classes’ case, the apex court came very close to declare that legislature cannot pass the bill until it is not scrutinized by the apex body. If this type of attitude will prevail, undoubtedly, it will create problem for the democratic set- up of our country. The apex court will have to know that rule of law does not mean rule of judges. Parliamentarians are elected by the people to frame laws to govern the country and they are accountable to the public at least once in five years.
CONCLUSION
The Bench cannot take over the functions of Executive. The Courts themselves must show prudence and restraint and be conscious of the need for comity of instrumentalities as basic to good governance. Judicial activism has to be saluted and its implications assimilated in letter and spirit. An activist Court is absolutely far more active than a legal positivist conservative Court to protect the society against legislative adventurism and executive tyranny.
The activist role of the Judiciary is implicit in the said supremacy. Judicial activism is a sine qua non of democracy because without an aware and enlightened judiciary, the democracy will be reduced to an empty shell. Judicial activism in its entirety cannot be banned. It is clear that under a constitution, a fundamental feature of which is the rule of law, there cannot be any control upon judicial activism in matters in which the legality of executive commands and administrative actions is questioned. The courts are the only forum for those aggrieved by structural excesses and executive arbitrariness.
Judicial activism is not an deviation. It is an essential feature of the dynamics of a constitutional court.[17] It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the bench. Judicial activism must also role within the limits of the judicial process.The bench is the weakest figure of the state. It becomes strong only when people calm faith in it.[18] Such trust constitutes the legitimacy of the Court and of judicial activism. Courts must continuously strive to sustain their legitimacy. Courts do not have to bow to public burden, but rather they should stand firm against public pressure. What bears legitimacy of judicial activism is not its submission to populism, but its capacity to withstand such pressure without sacrificing impartiality and objectivity. Courts must not only be fair, they must look to be fair. Such inarticulate and diffused consensus about the impartiality and integrity of the bench is the source of the Court’s legitimacy.
Indian Supreme court should also decide the cases on the basis of its own philosophy to declare laws as unenforceable. Indian Supreme court should expand its limits from constitution to its own philosophy. So judiciary will not be affected with the change in ruling party and balance of powers would be maintained among all three organs. All these reforms can enforce the real practice of judicial activism India.
-SHIVANI MODI