Judiciary at the time of constitution framing was an institution that aimed at resolving disputes, interpreting the constitution, protecting rights, and conducting judicial review. When it comes out of this sphere of traditional role and ensures the accomplishment of the ideals of a welfare state, then it is termed as ‘Judicial Activism’. When human rights are violated and the legislature is not responding, or the executive becomes indifferent, the courts must intervene. They act in their capacity and fill in the legislative void or lacuna.
Although the term Judicial Activism is not explicitly mentioned in our Constitution, the Supreme Court in many landmark cases has exercised this power. In the famous landmark judgement of the Kesavananda Bharti case and the Minerva Mill case, the Supreme Court emphasized the importance of the Basic Structure and put limits on Parliament’s ability to modify the constitution.
There have been many debates and discussions on judicial activism. The proponents argue that it is needed due to the dynamic nature of society. It also helps in maintaining transparency, accountability, keeping checks and balances on the other two organs, and ultimately strengthening democracy. Meanwhile, the opponents assert that it erodes the trust of society in the government, the judiciary may act in a biased manner, and abuse their power.
IMPACT ON DOCTRINE OF CHECKS AND BALANCES & SEPARATION OF POWERS
There are three branches of government, i.e. legislative, the executive, and the judiciary. Different roles and functions have been assigned to them to ensure the smooth functioning of the government. These three branches are independent and interdependent. To ensure that these branches do not encroach upon the functions or powers of each other, the Doctrine of Checks and Balances came into light. This doctrine is the fundamental principle that ensures equitable distribution of powers. This prevents any one branch from becoming too powerful, and maintains accountability. Thereby removing tyranny and encourages deliberation and careful decision-making.
Judicial activism is the function of a judicial organ wherein it fills in the legislative lacuna. Judges play an active role in shaping the law and policy. They go beyond their traditional role of resolving disputes and interpreting the law.
It is a controversial topic with proponents arguing that it is necessary for the better development and smooth functioning of society. Meanwhile, the opponents claim it as a threat to democracy. They assert that judicial activism is the result of the ineffectiveness or inaction of the executive. By indulging in this process, the judiciary is encroaching upon the powers and functioning of the executive, and also deciding a question of political thicket. Resulting in infringement of the right to exercise the powers. This results in political polarization. It worsens the political conditions of the nation.
Judicial activism erodes the trust of society in the legislative and executive institutions. The idea is set that the legislature is failing in making the progressive laws that the societal conditions compel them to. This act is done by the judicial institution. The chances of this ‘policy making’ being prejudiced are fairly high. On the contrary, the proponents believe that since society is dynamic, different issues may arise that need to be urgently addressed. And since law-making is a lengthy process, the judiciary does the right thing by filling in the lacunae. They address issues that the other branches have missed or failed to address.
JUDICIAL ACTIVISM- ITS EVOLUTION & JUSTIFICATION
Being an interpreter of the legislations, the constitution empowers the judiciary to interpret its role in the changing socio-economic scenarios of the society. It has interpreted its active role as an activist known as judicial activism. It is inspired by the value-laden visions of the Constitution.
In society, there are two types of people. The haves and have-nots. The people with sufficient means can secure justice, but the have-nots are somehow left behind. To ensure that even the socially and economically disadvantaged class can access justice, the judiciary performs judicial activism. It promotes justice, ensures that the rights and liberties of the person are protected. It contributes to social movements and inspires public debate on important issues.
In the Kesavananda Bharti case, the Supreme Court laid down the doctrine of basic structure. The concepts of independence of the judiciary, federal system, rule of law, and secularism cannot be amended by the legislature. If the legislature does so, then the courts can strike down the said provision, which violates these principles. It is nothing but Judicial Activism.
The end of the seventies was a turning point in the history of judicial activism when the Supreme Court started conceding the vibrant growth of Article 21. The wide interpretations of Article 21 have received legislative approval. The right to education, right to go abroad, right to privacy, right to legal aid, right to speedy justice, right against custodial violence, right of the citizen to food, access to roads, etc., are the landmark decisions of the Supreme Court interpreted in Article 21.
Further, articles 32 and 226 provide for the writ jurisdiction of the High Court and the Supreme Court, respectively. When a person feels that their fundamental rights or legal rights have been violated, they can file a case under this writ jurisdiction. It largely contributes to the interest of the poor and disadvantaged sections of society. It also gives a new meaning to justice in the socio-economic sense, in the form of equal justice and free legal aid. The sapling of legal aid in society has been planted by Justice P.N. Bhagwati and Justice Krishna Iyer.
The advent of public interest litigation (PIL) in India has been a significant catalyst for judicial activism. It allows individuals and groups to seek judicial redress for public wrongs, even if they are not directly aggrieved. This has opened avenues for the judiciary to address issues like environmental protection, human rights, and good governance.
There have been many cases in Indian history where the judiciary has performed judicial activism. And it has changed the views of the people on the judiciary. They feel that their rights are protected, and the needs and necessities of the underprivileged are not ignored.
JUDICIAL ACTIVISM AND JUDICIAL OVERREACH
Judicial overreach occurs when the judiciary exceeds its constitutional mandate and encroaches upon the functions traditionally belonging to the legislative or executive branches. It suggests that courts are making laws or directing executive functions, thereby violating the principle of separation of powers. The distinction between judicial activism and judicial overreach is often a ‘razor-thin’ line and can be subjective. What one perceives as legitimate activism to uphold constitutional values, another might see as an illegitimate intrusion into the domain of other branches.
The key line is judicial self-restraint and adherence to its core function of interpreting and upholding the constitution, rather than assuming the roles of lawmaker or administrator. While judicial activism is crucial for safeguarding rights and ensuring justice in a dynamic society, overreach poses a threat to the foundational principle of the separation of powers and the democratic framework.
For instance, in 2007, the Supreme Court gave directives to ban liquor sales near highways. This approach was seen by many as an administrative matter that encroached on state policy and economic decisions. Another example of such overreach is mandating the playing of the National Anthem in cinema halls in 2016, which was viewed as the judiciary stepping into the domain of social conduct and patriotism, traditionally outside its scope.
A balanced approach requires the judiciary to be vigilant in protecting constitutional principles and rights, but also to exercise caution and respect the constitutional boundaries of the legislative and executive branches. The ultimate goal is to ensure a robust system of checks and balances that strengthens democracy and upholds the rule of law.
CONCLUSION
When the Constitution was written, the judiciary was intended to resolve disputes, interpret the Constitution, defend rights, and undertake judicial reviews. Judicial activism occurs when the judiciary goes beyond its usual functions and actively promotes the ideas of a welfare state. This occurs when human rights are infringed and the legislature or government fails to act; in such circumstances, the courts step in to fill the legislative vacuum. Though “judicial activism” is not officially defined in the Constitution, the Supreme Court has played a key role in major decisions.
The issue about judicial activism revolves around the judiciary’s role in shaping policy through its interpretations of the law, which goes beyond simple adjudication. Proponents claim that judicial activism is an important catalyst for social change by filling gaps in laws or regulations, particularly when the legislative and executive branches are hesitant or unable to act. This technique aids in the resolution of disputes and ensures justice for marginalized communities. Furthermore, judicial activism supports the notion of checks and balances by ensuring that the legislative and executive branches follow constitutional norms and do not overstep their jurisdiction. It can also persuade lawmakers to address concerns directly, resulting in new or updated legislation and defending individual rights by overturning laws that contradict constitutional principles.
Critics claim that judicial activism goes beyond the judiciary’s conventional duty, interferes with legislative and executive powers, and may result in biased rulings affected by judges’ personal beliefs. This intrusion can erode public trust in the legislative and executive branches by revealing their inaction or failure. Furthermore, controversial judicial decisions can spark political backlash, resulting in conflict and instability. The checks and balances philosophy seeks to distribute power evenly across the three departments of government in order to prevent any of them from becoming overly dominant, to preserve individual rights, and to foster accountability. However, judicial activism, which is limited by the courts’ reactive nature and reliance on presented cases, raises concerns about the influence on democratic governance and the potential erosion of trust in democratic institutions.
REFERENCES
https://www.jstor.org/stable/41856396
https://www.jstor.org/stable/42761429
https://www.jstor.org/stable/41854244