Judicial Activism in India UPSC

Judicial Activism in India

In the United States, the concept of judicial activism was born and evolved. Arthur Schlesinger Jr., an American historian and educator, created the word in 1947.

The notion of judicial activism was first presented in India in the mid-1970s. The foundations of judicial activism in the country were laid by Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai.

What Does Judicial Activism Mean?

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Judicial activism refers to the judiciary’s proactive role in the preservation of citizens’ rights and the advancement of justice in society. In other words, it refers to the judiciary’s proactive role in pressuring the government’s other two organs (legislature and executive) to fulfill their constitutional obligations.

“Judicial dynamism” is another term for judicial activism. It is the polar opposite of “judicial restraint,” which refers to the judiciary’s self-control.

Judicial activism in Indian Constitution

1. “Judicial activism” is a form of court activism that encourages judges to deviate from their usual strict respect to judicial precedent in favor of progressive and novel social policies. Decisions requiring social engineering are widespread, and these decisions occasionally represent incursion into legislative and executive concerns.”

2. “Judicial activism” is defined as “the practice in the judiciary of safeguarding or increasing individual rights through judgements that deviate from established precedent, are independent of, or are in opposition to, ostensibly constitutional or legislative intent.”

3. “Judicial activism” is described as “the process of judges making laws.” It refers to a judge’s active interpretation of current laws with the goal of improving the law’s utility for societal good. Judicial activism differs from judicial pessimism, which is defined as “the interpretation of current legal provisions with no endeavor to improve its favorable elements.” a

4. “Judicial activism is a judicial decision-making ideology in which judges let their personal views on public policy, among other things, shape their decisions.”b

5. “Judicial activism is a technique for developing new principles, notions, maxims, formulae, and relief to do justice or to enlarge the litigant’s standing and open the door of courts to the needy or to entertain litigation impacting the entire society or a segment of it.”c

The concept of judicial activism is intertwined with that of Public Interest Litigation (PIL). The Supreme Court’s judicial activism has been a crucial influence in the emergence of PIL. To put it another way, PIL is the result of judicial activism. In fact, public interest litigation (PIL) is the most common form (or symptom) of judicial activism.

Judicial Activism And Judicial Restraint

The terms judicial restraint and judicial activism are often used interchangeably. However, there is a distinction between them. The following considerations highlight this distinction:

1. In the United States, a form of judicial review has been dubbed “judicial activism” from the mid-twentieth century. Participants in the discussion in India conflate judicial activism with judicial review. The former is a type of latter in which judges participate in law-making policies, i.e., they sustain or invalidate legislation based on constitutional principles while simultaneously exercising their policy preferences.d

2. Judicial activism is inherent in the principle of judicial review, which allows the court to enforce the constitution and declare laws and actions that are in conflict with it void. Judicial activism is required to ensure that other organs carry out their responsibilities properly. e

3. In the twentieth century, the phrase “judicial activism” was coined to denote the act of judicial legislation, or judges establishing positive law. However, there is no universally accepted definition of “judicial activism.” Overall, judicial activism emphasizes the importance of judicial review and a strong judiciary in the protection and advancement of certain fundamental rights.f

4. By judicial interpretation, the extended idea of locus standi in connection with PIL has expanded the jurisdictional limitations of courts exercising judicial review from time to time. Those who are critical of the judiciary’s expanding role have labeled it as “judicial activism.”

5. Judicial activism in constitutional situations is referred to as judicial review, and it refers to any instance in which a court intervenes and overturns lawfully enacted legislation.h

 Justification of Judicial Activism

The following are the reasons for judicial activism, according to Dr. B.L. Wadehra:

(I) When the Legislature and Executive fail to carry out their respective tasks, the responsible government is on the verge of collapsing. The public’ faith in the Constitution and democracy is eroded as a result of this.

(ii) For the protection of their rights and liberties, the citizens of the country look to the court. This puts enormous pressure on the judiciary to intervene in the suffering of the people.

(iii) Judicial Enthusiasm, which refers to judges’ desire to participate in societal improvements as they occur in different eras. It promotes Public Interest Litigation and loosens the ‘Locus Standi’ principle.

(iv) Legislative Vacuum, i.e., there may be some areas that have not been addressed by legislation. As a result, it is up to the courts to enact judicial law and respond to changing social requirements.

(v) Certain clauses in India’s Constitution have been approved, allowing the court to legislate or play an active role.

Similarly, Subhash Kashyap points out that there may be times when the court must go beyond its customary authority and intervene in areas that are normally the province of the legislature and the executive:

(I) When the legislature fails to fulfill its obligations.

(ii) In the event of a ‘hung’ legislature, when the government it supplies is weak, insecure, and focused solely on surviving, and hence unable to make decisions that are unpopular with any caste, community, or other group.

(iii) Those in power may be scared of losing power if they make honest and difficult judgments; as a result, public concerns may be presented to courts as legal issues in order to buy time and delay decisions, or to pass on the odium of strong decision-making to the courts.

(iv) When the legislative and the executive fail to defend citizens’ basic rights, such as the right to a decent life and a healthy environment, or to create an honest, efficient, and just legal and administrative system.

(v) When a strong authoritarian parliamentary party government abuses the judiciary system for political gain, as was attempted during the emergency aberration.

(vi) Sometimes, consciously or unknowingly, the courts become victims of human, all-too-human flaws such as populism, publicity, pandering to the media, and hogging the headlines.

The concept of judicial activism, according to Dr. Vandana, can be viewed to be reflecting the following trends:a

(I) In the administrative procedure, the right to a hearing is being expanded.

(ii) Unrestricted delegation of authority.

(iii) Increased judicial oversight of discretionary powers.

(iv) Increased judicial oversight of the government.

(v) Encouragement of open governance.

(vi) Use of contempt authority indiscriminately.

(vii) Exercising jurisdiction in the absence of a legal entity.

(viii) Extending the traditional principles of interpretation in the pursuit of economic, social, and educational goals.

(ix) Issuing commands that are inherently impracticable.

 Activators of Judicial Activism

An distinguished jurist, Upendra Baxi, has defined the following typology of social and human rights advocates who engaged in judicial activism:

1. Civil Rights Activists: These organizations are primarily concerned with civil and political rights.

2. Activists for People’s Rights: These organizations focus on social and economic rights in the backdrop of state suppression of popular movements.

3. Consumer Rights Organizations: These organizations address consumer rights issues within the context of political and economic accountability.

4. Bonded Labour Groups: These organizations demand that wage slavery in India be abolished by judicial activism.

5. Citizens for Environmental Action: These organizations mobilize an activist judiciary to oppose rising pollution and environmental deterioration.

6. Citizen Groups Against Large Irrigation Projects: These activist groups are pleading with the Indian judiciary to do the unthinkable, which is to stop and desist from issuing orders against mega irrigation projects.

7. Child Rights Organizations: These organizations focus on issues such as child labor, literacy, juveniles in correctional facilities, and the rights of children born to sex workers.

8. Custodial Rights Organizations: These organizations include social action by prisoners’ rights organizations, women held in ‘protective’ custody by the state, and people held in preventative detention.

9. Poverty Rights Organizations: These organizations litigate topics such as draught and famine relief, as well as urban poverty.

10. Indigenous Peoples’ Rights Organizations: These organizations advocate for forest dwellers, citizens of the Indian Constitution’s Fifth and Sixth Schedules, and identity rights.

Women’s Rights Organizations: These organizations campaign for topics like as gender equality, gender-based violence and harassment, rape, and dowry murders.

  1. Bar-based organizations: These organizations advocate for the independence and accountability of the Indian judiciary.
  2. Media Autonomy Groups: These organizations focus on the press’s autonomy and accountability, as well as state-owned media instruments.
  3. Assorted Lawyer-Based Groups: This category contains the most powerful lawyers’ organizations that advocate for a variety of topics.
  4. Assorted Individual Petitioners: This group includes self-employed activists.

Apprehension of Judicial Activism

Upendra Baxi, the same judge, has offered a typology of concerns engendered by judicial activism. “The facts necessitate invocation of a wide variety of fears,” he observes. The invocation is intended to push India’s most conscientious justices into a tense rationality.” The following are examples of anxieties that he described:

  1. Ideological fears: (Do they usurp the legislative, executive, or other autonomous institutions of a civil society?)
  2. Epistemic fears: (Do they have adequate understanding in economic concerns of a Manmohan Singh, in scientific subjects of atomic energy Czars, leaders of the Council of Scientific and Industrial Research, and so on?)
  3. Management concerns: (Are they doing justice by adding this much litigation work to a scenario where arrears are growing at an alarming rate?)
  4. Fears of legitimization: (Aren’t they eroding their symbolic and instrumental authority by issuing orders in public interest litigation that the executive can disregard or bypass? Wouldn’t this weaken people’s faith in the judiciary, which is a democratic remedy?)
  5. Democratic fears: (Does a plethora of public-interest litigation foster democracy or suffocate its future potential?)
  6. Biographic fears: (If I overdo this kind of litigation, what will be my place in national affairs after I retire?)

Judicial Restraint vs. Judicial Activism

The Definition of Judicial Restraint
In the United States, there are two different judicial philosophies: judicial activism and judicial restraint. Those who support judicial restraint argue that judges’ roles should be strictly circumscribed; their goal should be to simply state what the law is, leaving the business of lawmaking to lawmakers and executive branch officials. Judges should not, under any circumstances, let their personal political ideals and policy goals to influence their judicial decisions. The ‘original intent’ of the writers of the constitution and its amendments is known, and the courts must follow it.

Assumptions of Judicial Restraint
The idea of judicial restraint in the United States is based on six assumptions:

  1. The Court is fundamentally undemocratic because it is non-elective and ostensibly unresponsive to public opinion. Because of its supposed oligarchic makeup, the court should defer to the’more’ democratic arms of government whenever possible.
  2. The dubious roots of the vast authority of judicial review, which the Constitution does not expressly give.
  3. The separation of powers idea.
  4. The principle of federalism, which divides powers between the federal government and the states, requires the Court to give state governments and officials deference.
  5. The non-ideological but pragmatic notion that, because the Court’s jurisdiction and resources are derived from Congress, and its efficacy is based on public acceptability, it should not overstep its bounds without first assessing the dangers.
  6. The aristocratic belief that, as a court of law and inheritor and custodian of the Anglo-American legal system, it should not stray too far into politics–law being the process of reason and judgment, whereas politics is simply concerned with force and influence.

All of the assumptions (save the second, which deals with judicial review) are valid in the Indian context, as shown above.

Observations from the Supreme Court
In a December 2007 judgment, the Supreme Court of India called for judicial restraint and asked courts not to take over the functions of the legislature or the executive, stating that the Constitution provides for a broad separation of powers and that each organ of the state must respect and not encroach on the domain of others. In this regard, the court’s relevant Bench made the following observations:
“We frequently come across cases where judges are unjustifiably attempting to assume executive or legislative tasks,” the Bench added. Clearly, this is unconstitutional. Judges cannot overstep their bounds in the guise of judicial activism and attempt to take over functions that belong to another state entity.”
“Judges must know their bounds and not try to control the government,” the Bench stated. They must be modest and humble, and they must not act like rulers.”

  1. Citing Montesquieu’s book “The Spirit of Laws” on the consequences of failing to maintain separation of powers among the three organs, the Bench said the French political philosopher’s “warning is particularly apt and timely for the Indian judiciary today, since it is frequently rightly criticised for “overreach” and encroachment on the domain of the other two organs.”
  2. The Bench admonished the courts that judicial activism must not devolve into judicial adventurism. Judges’ preferences must be minimized and restraints must be applied within a framework of historically validated restraints.
  3. “Courts must not humiliate administrative authorities and must recognize that administrative authorities have administrative experience that the court does not.”
    “The argument typically given for judicial incursion on the executive or legislative realm is that the other two organs are not executing their tasks correctly,” the Bench remarked. Even if this is true, the same charges can be leveled on the judiciary because cases have been languishing in courts for more than a half-century.”
  4. If the legislature or the administration were not operating effectively, it was up to the people to fix the flaws by properly exercising their franchise in future elections and voting for persons who would meet their expectations, or by using other legal means, such as peaceful demonstrations.
  5. “The answer is not for the court to take over legislative or executive tasks, because that would not only violate the Constitution’s delicate balance of power, but also (because) the judiciary lacks the knowledge and resources to carry out these functions.”
    “Judicial restraint is consistent with and complementary to the balance of power among the three separate arms of the state,” the Bench stated. It accomplishes this in two ways: first, judicial restraint recognizes and supports the equality of the other two departments with the judiciary by limiting the court’s inter-branch involvement. Second, judicial restraint tends to maintain the judiciary’s independence. When courts enter the legislative or administrative realms, voters, lawmakers, and other elected officials will nearly always conclude that judges’ actions should be rigorously scrutinized.

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