INTRODUCTION
The term Judicial Activism from layman’s perspective means judges’ personal and political interpretation of law or policy or any state’s action.
As per Black’s Law Dictionary, the word judicial activism is defined as a philosophy of making judicial decisions by the judges whereby they allow their personal views and other factors to guide their decisions.[1]
Before the concept of judicial activism came into the world picture, there was another concept evolving which is Judicial legislation.[2] After the popularity, debates and controversies it gained, the term ‘Judicial Activism’ was coined by Arthur Schlesinger Jr. in a ‘Fortune Magazine’ article several years later in 1947.[3]
Judicial Activism is the power exercised by the judiciary to interpret the law according to their consciousness, personal opinion and political factors to solve the problem posed by the case in hand thus giving rise to some new form of law or abolishing the existing law.
Why does the process take place? When the judges are unable to find the solution from the existing law when the law is considered to be unclear or when the judges disagree with what exists in the law then this disagreement or to find the solution by equity, justice and good conscience, judges opt for judicial activism.
Because of this nature scholars termed it as legislation by the judges and therefore many argue about its legality. But as India follows the democratic system of governance and follows the Constitution, it is the responsibility entrusted upon the Judiciary to do justice in every scenario. However, the controversies are regarding the extent of this power, encroachment into the legislature, and arbitrary use of power. In this article, the present status quo regarding these controversies in India will be discussed. But first, let us delve into how this concept emerged in the Indian context.
EVOLUTION OF JUDICIAL ACTIVISM IN INDIA
The question before us is how this concept emerged in India and was accepted by the courts of India.
In the initial days of independence, the Indian courts followed the law, the constitution and the British system of judiciary very obediently. It did not interfere in the legislature matters and did what the law stated. Thus, it was more of Judicial Restraint.
Judicial restraint is the antonym of judicial activism. It means the court limits itself to decide according to the law and not go beyond that for interpretation.
During the 1960s, the judiciary finally started taking an interest in activism rather than just being a follower with no proactive role. However, the process was slow and it took years for the Indian judiciary to do justice as an activist.
To start with, in the case of Sakal Newspapers (Private) Ltd. India[4], the Supreme Court upheld the right to freedom of speech and that any law violating the freedom of the press coming under Article 19(1)(a)[5] of the Constitution is ultra vires.
Then comes the famous Golaknath v. State of Punjab[6] where the Parliament’s power to amend the Constitution was challenged. The Supreme Court held that the Constitution does not give power to the parliament to amend the Constitution to interfere with fundamental rights.
And because of this case, the landmark judgement in Keshavanand Bharti v. State of Kerala[7] came. It recognised the basic structure doctrine. The Supreme Court held that it is within the ambit of Parliament’s power to amend the Constitution along with the fundamental rights. But it cannot encroach on the basic structure of the Constitution. If it does so, the Judiciary has all the rights to declare it as unconstitutional.
After this step by the Supreme Court, judicial activism accelerated in the whole country. The Indian courts worked towards social justice and passed a lot of landmark judgements.
The concept of Public Interest Litigation (PIL) originated during the 1980s[8] which facilitated the disadvantaged people treated unfairly by being represented and approaching the court by some other person. This is all about the emergence of Judicial Activism in India after Independence.
THE CHANGING PERSPECTIVE
Whenever we turn the pages of Indian judicial activism, we come to see remarkable changes brought up by the courts and when we say pages, it’s a lot in number. Whether it be Vishaka’s case[9] laying down the law against sexual harassment at the workplace for the first time in India or Hussainara Khatoon case[10] recognising rights of undertrials and prisoners and a must legal aid provision for them or M.C Mehta case[11] where the local bodies were directed to take measures to fight water pollution in the Ganga River, the courts have worked tremendously in different fields for the protection of rights.
Judicial Activism expanded the scope of fundamental rights to include n number of rights the most important one is Article 21[12] which has been the champion of this process. In Bandhua Mukti Morcha v. UOI[13], the right to education was considered to be an integral part of Article 21[14].
But after all these successes and positive outcomes, now the scenario seems to be different. Today people are pointing out the unnecessary decisions and judicial overreach by the court whereas some are praising the good steps taken by them. So let us analyse due to what circumstances such a change of perspective has taken place.
In recent years, the Supreme Court has indulged itself a lot in Delhi pollution control. Since the 1980s the apex court has issued several guidelines and orders to the government such as switching from diesel-run vehicles to CNG, deciding what type of vehicles should run, installation of smog control towers. Many environmental experts say that this was not helpful in pollution control. The court has tried to clean the city’s air but some of its decisions are controversial as it has stepped forcibly into the administrative matters. However, many positive impacts have also been seen and also the court is only following its duty to protect the citizen’s right to a clean environment when the government is failing to do the same.[15]
Another recent example is the case of same-sex marriage. A five-judge bench was formed headed by the CJI D.Y. Chandrachud to hear the matter on legalising same-sex marriages. In this case, the CJI has shown a very balanced approach between judicial activism and legislature. He stated some opinions in favour of the LGBTQ+ community but at the same time, he asserted that it is the task of the legislature to decide whether legal status should be given to same-sex marriage or not.[16]
One year back, a drastic violence took place in Manipur Following a decision of the Manipur High Court which directed the state government for inclusion of the Meitei community in the Scheduled Tribe (ST) category. This judgement was criticised as this was a matter of policy and not law. It raised questions that up to which areas the courts can delve into for interpretation.[17]
From these instances, we see a mix of decisions from the courts but mostly today’s courts are unable to draw a line. The former CJI Ranjan Gogoi said that it is the responsibility of the courts to decide when to act as a catalyst for change and when to uphold the status quo. When judicial activism becomes more like an adventure then the path brings risk. Though the decisions are given with good intentions sometimes it can lead to disaster.[18]
CONCLUSION
After all these analyses the following remarks can be drawn –
- The judges are trained in law, they are not experts in other fields so they shouldn’t try to involve those that are not their expertise.
- The judges should interpret the law and not form policies.
- The High Courts should follow the hierarchy and precedents set.
- Judicial restraint has to be given importance in this political era as equal as judicial activism is receiving.
- The courts have to come up with a solution to identify to what extent the judiciary has legitimate power of interpretation.
Surpassing anyone’s power in a democratic country is not acceptable as it undermines the accountability of such an institution and threatens the trust of the people. Therefore, it is high time that the Indian judiciary should not go for adventurous judicial activism but instead accommodate the changing needs of society and do social justice while protecting the fundamental rights of the citizens but with a balanced approach of not interfering in the administrative and policy-making process.
The courts of India hold great significance for its people; therefore, it should avoid any criticisms and controversies. It should always protect the integrity, equality and liberty of the citizens.
Author(s) Name: Ankita Sah (Siksha ‘O’ Anusandhan University, Bhubaneswar)
References:
[1] Nitu Mittal and Tarang Aggarwal, ‘JUDICIAL ACTIVISM IN INDIA’ (2014) 1.1 IJLPP <http://docs.manupatra.in/newsline/articles/Upload/3D22F96F-B1FF-4D03-B90E-B0B2690BD83E.1-g__constitution.pdf > accessed 11 June 2024
[2] Keenan D Kmiec, ‘The Origin and Current Meanings of “Judicial Activism”’ (2004) 92 California law review 1441
[3] ibid
[4] Sakal Newspapers (Private) Ltd. India v Union of India AIR 1962 SC 305
[5] Constitution of India 1950, art 19(1)(a)
[6] Golaknath v. State of Punjab A.I.R. 1967 S.C. 1643
[7] Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461, 1973 4 SCC 225
[8] ‘When was PIL introduced in India’ (Byju’s) < https://byjus.com/ias-questions/when-was-pil-introduced-in-india/#:~:text=In%20India%2C%20the%20PIL%20is,full%20bloom%20in%20the%201980s.> accessed 11 June 2024
[9] Vishaka v. State of Rajasthan A.I.R. 1997 S.C. 3011.
[10] Hussainara Khatoon v. State of Bihar (1980) 1 S.C.C. 81.
[11] M.C Mehta v. Union of India A.I.R. 1988 S.C. 1115.
[12] Constitution of India 1950, art 21
[13] Bandhua Mukti Morcha v. UOI A.I.R 1984 S.C. 802.
[14] Constitution of India 1950, art 21
[15] Umang Poddar, ‘Delhi pollution: Indian Supreme Court’s 40-year quest to clean foul air’ BBC, (27th November 2023) < https://www.bbc.com/news/world-asia-india-67411826> accessed 10th June 2024
[16] The Hindu Bureau, ‘Same-sex marriage verdict updates | Activists, petitioners call for legislative action in same-sex marriage matter after SC ruling’ The Hindu (17th October 2023) <https://www.thehindu.com/news/national/same-sex-marriage-case-in-supreme-court-verdict-live-updates/article67429301.ece> accessed 9th June 2024
[17] ‘Manipur violence: Who are Meiteis and Kukis? What are they fighting over?’ The Economic Times (6th May 2023) <https://economictimes.indiatimes.com/news/how-to/manipur-violence-who-are-meiteis-and-kukis-what-are-they-fighting-over/articleshow/100038719.cms> accessed June 11 2024
[18] “Judicial Activism Peacemaker, Overreach A Trespasser”: Ex-Chief Justice Ranjan Gogoi, India News, Press Trust of India, <https://www.ndtv.com/india-news/judicial-activism-peacemaker-overreach-a-trespasser-ex-chief-justice-ranjan-gogoi-5383356> accessed June 11, 2024
