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ARTICLE ON: JUDICIAL ACTIVISM IN INDIA
1. INTRODUCTION:
Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and High Courts under Article 226 of the Constitution particularly in Public Interest Litigation. The formulation of the new rules by the then courts to settle the conflicting positions that had arisen in certain cases was denoted as 'Judicial Activism'. To define broadly, it is the assumption of an active role on the part of the Judiciary. In the words of Justice J.S Verma, Judicial Activism must necessarily mean “the active process of implementation of the rule of law, essential for the preservation of a functional democracy”.^1 Judicial activism generally has two consequences. It, at times, works in our favor to save from the wrong decision to take place but at times it also backfires on us. There are some very important cases that are available when we talk about Judicial Activism in India. Bhopal gas tragedy and the Jessica Lal Murder case are among the top two
2. ORIGIN OF JUDICIAL ACTIVISM:
The term “Judicial Activism” was first introduced by Arthur Meier Schlesinger Jr. in January 1947 in an article titled “The Supreme Court: 1947”. The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad." 2 As far as the origin and evolution of judicial activism go, there are two theories behind the whole concept. They are: (1) Theory of Vacuum Filling and (2) Theory of Social Want. 1.Theory of Vacuum Filling: As per the Indian democratic republican scenario, the whole power is categorised into three wings or organs, these are, - (i) Legislature, (ii) Executive, (iii) Judiciary. These three wings have their own powers and (^1) Judicial activism and its development , Article 1000, (25 May, 2020, 04:00PM), https://article1000.com/judicial-activism development/ (^2) Keenan D. Kmiec, The Origin and Current Meanings of 'Judicial Activism , 92. CAL. L. REV 1441, 1447(2004)
separated works so as to regulate beautifully the democracy. But when or at the certain point of time, between these two wings, Legislature and Executive, one of them is become passive or inactive to deploy or to continue its part, then the rest wing, Judiciary has no another choice except come into scenario. Here the inactiveness or imbecility should be imposed or fulfilled only by the two wings, i.e., Legislature and Executive, but not Judiciary. Because, for a democratic state (especially for India), an independent judiciary is considered as the heart and soul by which the democratic or republican situation shall be maintained. Hence, if the judiciary becomes inactive, the whole process of democracy and republic should be broken. So, it is very much sensitive organ as the remaining of a state which “is left with no other alternative but to expand its horizons and fill up the vacuum created by the Legislature and the Executive”^3 2.Theory of Social Want: We see in the before column that when at the certain point of time, any organ of these two organs, Legislature and Executive, is become inactive or passive due to incompetence, disregard of law, negligence, corruption, utter indiscipline, then the rest organ, Judiciary comes into scenario with the choice of amplification its determined horizons by the Constitution to solve the disputes. But now the question is that: “why the Judiciary does so?” The simple answer is that only for the social want Dr. Vandana, in her book, “Dimensions of Judicial Activism in India” says, - “the judicial activism emerged due to the failure of the existing legislations to cope up with the existing situations and problems in the country. When the existing legislations fail to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. Hence the only way left is to provide non- conventional interpretations to the existing legislations for the greater good. Hence emerged judicial activism.”
3. JUDICIAL ACTIVISM IN INDIAN SCENARIO:
Today Indian Constitution itself provides scope or space in order to ordain the philosophy of judicial activism by virtue of Articles 13, 32, 141, 142 and 226 mainly. Article 13^4 of the Constitution of India conferred wide power of judicial review to the Apex court. Under this power it can examine the constitutionality of executive or legislative act. The high courts also enjoy the same power in this regard. Article 32^5 of the Constitution of India makes the Supreme Court as the protector and guarantor of the fundamental rights. (^3) Merriam-Webster’s Dictionary of Law, (Springfield, Massachusetts: Merriam-Webster, 1999) (^4) INDIA CONST. art. 13. (^5) INDIA CONST. art. 32.
condition of “procedure established by law” in order to avoid the absolutism of the Executive as well as the Legislature and it’s interference to the individual’s freedom. Prior to 1970, the view that existed among the common mass was that the Legislature is the sovereign, supreme and the independent authority for the making law vis-a-vis the Judiciary. But in the case of Kesavananda Bharati v. State of Kerala^10 this view was changed. In this case, the Apex Court held that it is not likely that the Legislature is the only authority to make a law. Besides that, in such case, the Supreme Court also enunciated the “Doctrine of Basic Structure”, which formed an impenetrable structure against all the despotic and whimsical actions of the Executive or for that matter, the Legislature also indeed, this is a designedly created plan by which development shall be come in the annals of the Indian Judiciary for meeting the challenges of troubling times and issues confronting our democratic republican status. This effort of the Judiciary is also enlightened by applying the concept of Public Interest Litigations (PILs). The concept of Public Interest Litigations is carried on by the judiciary with the task of unearthing many scheme through providing justice to the citizens and also to enhance their rights. Actually, the concept of PIL is nothing but the product of time and circumstances, i.e., on the other hand, to capture the changeable motion of our society alone with its complexity, the Judiciary have to convey the ideology of PIL. So, in this regard, these are the cases where the Parliament as well as the State Legislature has failed to notice or address problems affecting the quality of life of the community or identifiable segments of society, or the Executive is alleged to have been guilty of non-use or misuse of its power touching the fundamental rights of the individual. By applying this concept in the real situation, the judiciary gradually enriches the heart and soul of the Constitution as well. Following are considered as the important as well as landmark judgment in the area of PIL, that is, Public Interest Litigation,
- In Hussainara Khatoon v. State of Bihar^11 the Court held that speedy trial was an integral and an essential part of “Right to Life and Liberty” contained in Article 21 of the Indian Constitution.
- In Nilabati Behara v. State of Orissa ,^12 the Court evolved the principles of public law doctrine of compensation for the violation of human rights according to which liability of the state for violation of human rights is absolute and admits no exception such as sovereign immunity.
- In M.C. Mehta v. Union of India ,^13 the petitioner prayed for direction for giving whole publicity to the messages and directions issued by the Courts from time to time to protect the environment and ecology. In such case, the Chief Justice P.N. Bhagwati originated the “Rule of Absolute Liability” unlike the “Rule of Strict Liability”. (^10) Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India). (^11) Hussainara Khatoon v. State of Bihar, (1980) S.C.C. (1) 98 (India). (^12) Nilabati Behara v. State of Orissa, (1993) S.C.C. (2) 746 (India). (^13) M.C. Mehta v. Union of India, (1987) S.C.C. (1) 395 (India).
4. CONCLUSION
To deny judicial activism to the Judges would be to deny justice to the people since it is the most powerful weapon in the hands of the Judiciary to deliver justice, when the other organs fail to do the needful. Following Tagore, who said that if we shut our doors to prevent entry of untruths, truths would also be shut out thereby, it is said that if the Judges shut the doors against judicial activism and judicial law- making on the apprehension that these might on occasions cause injustice, then they would also shut out thereby the ushering in of a new order of justice. Conscious of the primordial fact the Constitution is the Supreme document, the mechanism under which laws must be made and governance of the country carried on, the judiciary must play its activist role. It should be seen that in the name of doing justice and taking shelter under institutional self-righteousness, the judiciary also cannot act in a manner disturbing the delicate balance between the three wings of the State. Needless to emphasize that the strategy of PIL should be employed by the courts rigorously, providentially and without discrimination as a result of any discriminate use of it might bring it into contempt each from the general public and also the government. Therefore, the correct approach of the court in PIL cases should be a judicious mix of restraint and activism determined by the dictates of existing realities. Any misuse of this strategy must be strongly discouraged by the courts.
