Judicial Activism in India : The Emerging Trend

Introduction

The Indian Judiciary is an autonomous body and it is one of the three main organs of the government that serves as a sentinel on the qui vivo when it comes to protecting the fundamental rights of the people and promoting social harmony among the citizens. In our constitutional scheme, the judiciary alone has been entrusted with the power and duty to test the constitutional validity of legislative provisions and the validity of administrative actions.[i]

The Legislature comes into play while formulating laws and the task of implementing these laws is upon the Executive.Article 32 of the Indian Constitution gives the right to every individual to move directly to the Supreme Court of India for the enforcement of his or her fundamental right[ii].It interprets the best and sometimes necessary constitutions and upholds the rule of law and the standards set out in the constitution. India’s judicial activity means the power of the Supreme Court and the High Court to declare unconstitutional and invalid if it violates regulations or if the law contradicts one or more provisions of the Constitution.

Origin & Definition of Judicial Activism

The term “Judicial Activism” was first conceived by Sir Arthur Schlesinger in his article published in the Fortune Magazine titled “The Supreme Court: in January 1947.Earlier this term was not acknowledged in the legal system but how Judicial activism was pursued i.e., Judicial Review was well in practice and got recognized first by the Supreme Court of United States in Marbury v Madison, Judicial Review in India can be defined as the power given to the Judicial System to review the laws passed by the legislature and to test their validity, whether they contrast with the Indian Constitution or not, and decide accordingly. Black`s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies.” In other words, it is the process by which the judges of the court fill the gap created by the legislature or executive`s inactivity

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Indian judiciary

Judicial Activites: Judicial Intervention?

The judiciary itself has been repeatedly criticized for judicial intervention by parliament. Swaraj Abhiyan (I) v. In the case of  UOI&Ors[iii], the Supreme Court ruled Ministry of Agriculture establishes National Disaster Relief Fund at the right time 3 months. However, the then Finance Minister Arun Jaitley expressed his concern over the judicial overreach and creation of a third fund other than NDRF and SDRF while keeping in mind the appropriation bill is being passed and there is also a budget constraint in setting up such a fund. Even after its own decision that BCCI (Board for the Control of Cricket in India) is a private body another surprising opinion of the apex court was when it propounded that the court is trying its best to improve the BCCI. Another example is of NJAC judgment in which the Supreme Court by 4:1 held the 99th Constitutional Amendment void as violating judicial independence.

In the case of IR Coelho vs. Tamil Nadu[iv], the court emphasized this again. Separation of powers is essential to prevent tyranny and maintain freedom. However, it should be noted that the Supreme Court has suggested the need to update the current university system. And welcomed the widespread discussion about it. There is no objection to the self-control of the judiciary.

Pros & Cons of Judicial Activism in India

For all its purpose, Judicial Activism is a double-edged sword, which has both its benefits and drawbacks. However, until now, the benefits of Judicial Activism outweigh its drawbacks. The pros and cons are listed below –

Pros related to Judicial Activism

  • It establishes a system of checks and balances on the activities of other organs of government. The aggrieved person can approach the court under Articles 32 and 226 to seek remedies if his fundamental rights are breached by the government.
  • If the constitution or the laws passed by the legislature fails to provide balance in the matter, then the judges can use their acumen and wisdom, to provide fair and equitable justice.

Cons Related to Judicial Activism.

  • If the judiciary repeatedly tries to interfere in the functioning of the legislature & the executive, then it dilutes the principle of separation of power, which is called judicial overreach or judicial adventurism, and also the faith of citizens in the government diminishes.

The following are relevant case laws

  • C. Golaknath and ors. v. Punjab, (1967)[v] The facts of the case were about the power of  Parliament under Article 368 of the Constitution of India, which empowers Parliament to amend the Constitution and procedures. The Supreme Court stated that although there were no such restrictions mentioned in Article 368, Parliament could not abolish the basic rights of those enshrined in Part III by amending the Constitution.
  • Kesavananda Bharativ. the Stateof Kerala, (1973)[vi] was one of the most famous groundbreaking cases ever recorded in the judiciary and consisted of the largest Constitutional Chamber with 1434 judges. .. In this case, the doctrine of “the basic structure of the Constitution of” was developed, but it was not mentioned anywhere in the Constitution. Up to courts ruled that Congress cannot change the basic structure of the Constitution. The verdict turned out to be a microcosm of judicial activity.
  • S. Puttaswamy v. Union of India, (2017)[vii]this case dealt with the constitutionality of the Aadhar Scheme of biometrics launched by the incumbent government, which violated the right to privacy, though not fully incorporated by the Supreme Court but decided in several previous judgments, was in question. Though it was not explicitly mentioned in the Indian Constitution the Supreme Court upheld that the right to privacy should be recognized under Article 21 – life & liberty.

The above-mentioned case laws show how the concept of Judicial Activism in India evolved from the late 1960s and it still plays an imperative role in the legal system.

Conclusion

In short, the concept of judicial activism is a vested interest given to a court that needs to be endorsed only to support the rights of the general public and the superiority of the Constitution, but this activity should be done in a blink of an eye. The adventure of the eyes becomes an adventure when the judge’s political beliefs and prejudices flow out of the verdict. For the proper functioning of democracy, courts need to consider and respect the legislative and administrative branches and uphold the principles of separation of powers set out in the Constitution.

To emphasize other aspects, the court must not exceed the authority given in such a way that it would be futile. However, the benefits of the judicial activity outweigh its shortcomings, exceptfor some rulings that have damaged the reputation of the Court.

Author: Ipsita Sinha, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] R Shunmugasundaram, More at Core UK, Judicial activism and overreach in India Issue 72 (Winter 2007) https://core.ac.uk/download/pdf/112282.pdf

[ii] Prof. Dr. Nishtha Jaswal and Dr. Lakhwinder Singh, More at Bharati Law Review/ Manupatra.in (March, 2017) http://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-2B84EFE0ABCA.pdf

[iii] AIR 2016 SC 2929

[iv] AIR 2007 SC 81.

[v]AIR 1643, 1967

[vi]4 SCC 225; AIR 1973

[vii] 10 SCC 1, AIR 2017

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