JUDICIARY AS AN INSTRUMENT OF CHANGE
The judiciary is a crucial institution in India, able to examine the constitutionality, implementation, and interpretation of laws and interpret and uphold the Constitution. The judicial system aims to preserve the rights of individuals and ensure fairness and equality of justice.[1] When a demand arises for a shift in the performance and obligations of the judiciary in line with changing viewpoints in the continuously evolving Indian socioeconomic-political landscape, difficulty in providing justice arises. The principles of judicial activism and judicial restraint enter the picture here.[2] These opposing principles are used to understand the philosophy utilized by judges to justify a court ruling. The approach of Indian courts to constitutional interpretation has long been a source of contention, with some arguing for judicial activism and others emphasizing judicial restraint. It thus becomes all the more difficult to strike an effective balance between the two concepts.
JUDICIAL ACTIVISM IN INDIA
In India, ‘Judicial Activism’ refers to the judiciary’s proactive engagement in addressing societal concerns and achieving change that goes beyond the customary interpretation of legislation. It entails the courts actively defining public policy and enforcing basic rights, even when the legislative and administration are hesitant or inept.[3] Essentially, the court becomes a social change agent by dynamically interpreting the Constitution. The Supreme Court of India has interpreted the Constitution to recognise new rights, frequently derived from existing rights, to satisfy citizens’ increasing socioeconomic requirements. For example, the right to a clean environment, the right to privacy, the right to a living, and the right to education have been recognized as part of the right to life under Article 21 of the Constitution.[4] Judicial activism has taken the shape of numerous instruments of social such as those seen in environmental protection and social welfare.
Judicial activism in India has proven critical in safeguarding the environment and encouraging sustainable development. The Supreme Court has delivered several historic decisions to conserve natural resources, reduce pollution and protect animals. Social welfare issues have been a subject of judicial activism. The court has given orders to ensure that food is distributed to those in need, to broaden the application of social security plans, and to oversee the execution of different assistance initiatives.[5] This strategy aims to narrow access gaps to essential services and improve the general well-being of society’s most vulnerable groups. Public Interest Litigation (PIL) is another potent instrument that encourages judicial activism.[6]
The landmark case of Maneka Gandhi v. Union of India[7] is a magnificent example of judicial activism as it significantly increased the extent of Article 21 of the Indian Constitution’s right to personal liberty. [8]Maneka Gandhi had her passport illegally confiscated by the government without a hearing, reportedly in the “interest of the general public”. The Supreme Court acknowledged that the right to personal liberty protected by Article 21 went beyond the right to exist physically and included the right to have a meaningful life. The court emphasized the importance of a fair trial and the right to be heard as fundamental elements of Article 21 when it found that the freedom to go abroad was a component of human liberty that could not be denied arbitrarily without due process of law. Vishaka v. State of Rajasthan[9], another notable case of judicial activism addressed workplace sexual harassment of women and established ground-breaking standards for dealing with and preventing such harassment. The lawsuit arose from the gang rape of Bhanwari Devi, a social worker in Rajasthan, and her employers’ failure to protect her and make restitution. In its decision, the Supreme Court held that sexual harassment at work infringed on the rights of women as guaranteed by Articles 14[10], 19[11] and 21[12] of the Constitution.[13] Before the legislature established relevant laws, the court issued recommendations known as the ‘Vishaka Guidelines’[14] to combat sexual harassment in the workplace, which laid the foundation for later proper legislation in this regard.[15]
JUDICIAL RESTRAINT IN INDIA
In India, judicial restraint refers to the courts’ practice of applying restraint while interpreting laws and regulations, particularly concerning policy decisions and legislative discretion. It implies respect for the legislative and the executive, with the judiciary abstaining from intervening in areas regarded as within the purview of the other governmental branches. Acknowledgement of the separation of powers between the judiciary, legislative, and executive is a fundamental premise of judicial restraint. [16]Courts exhibit restraint by recognising the limits of their jurisdiction and delegating policy choices to elected authorities. Unless the law or action is arbitrary, discriminatory, or violates fundamental rights, they will do so. Critics of judicial restraint say that giving an excessive amount of consideration to the legislative and executive branches may lead to the courts failing to defend individuals’ basic rights. When the other branches of government fail to protect constitutional rights or are swayed by political agendas, judicial restraint can be perceived as a barrier to justice and accountability. Furthermore, opponents argue that in some cases, judicial restraint may defend laws and practices that perpetuate prejudice and inequality. It may impede the judiciary from taking proactive steps to address systemic challenges and empower marginalised populations.
In S.R. Bommai v Union of India[17], the Supreme Court of India held that because the case included a political investigation, the courts shouldn’t get involved, exercising judicial restraint. According to Justice Ahmadi, who emphasised that it was challenging to develop judicially acceptable criteria to evaluate political choices, the court must refrain from getting involved in politics and examining the political landscape. The Supreme Court ruled in another case, Almitra H. Patel v. Union of India[18], that until there has been a flagrant violation, it is not the court’s place to tell the Municipality how to do its obligations. The court can only direct the government to do its duty in compliance with the law.
JUDICIAL INTERVENTION: THE BALANCE SOUGHT
It is important to comprehend in this context that judges and the judiciary frequently serve only as its interpreters, not as legislators or policymakers. [19]To give meaning to what the legislature has said is the judge’s work, even though it is true that the judge’s role is to interpret as per the words used by the legislature. According to Justice P.N. Bhagwati, this process of interpretation is what makes being a judge the most exciting and creative job in the world. [20]Therefore, it is their responsibility to intervene when needed. Numerous considerations must be made to strike a meaningful equilibrium. However, judicial activism should be restrained to prevent intrusion into policymaking that belongs in the purview of the legislature and executive branch. Judicial activism can advance constitutional ideals and defend basic rights.[21] When making policy decisions, courts should respect legislative purposes and give elected officials the benefit of the doubt. Courts must express their conclusions clearly, justify their choices, and base judgements on the law to preserve the public’s faith. To guarantee that government acts do not violate basic rights or constitutional principles, judges must use restraint when dealing with complicated policy problems like economic policies or national security concerns. PILs (Public Interest Litigation) should only be used sparingly to prevent abuse or pointless petitions. Considering minor adjustments in response to changing societal requirements and taking precedents into account are key to striking a balance between activity and moderation.
Judicial intervention must be institutionalized, it cannot be personalised. It is a fundamental tenet that the law must be unambiguous and invulnerable to the preferences of certain judges, no matter how well-intentioned they may be.[22] For this, the judgement must be based on accepted legal standards that can be applied in various circumstances. This lends the Court’s decision credibility and compels respect for and adherence to the law. The contrast between judicial activity and restraint illustrates how complicated and constantly changing constitutional interpretation is. The Indian judiciary must strike this balance to defend the principles of democracy, justice, and fairness while continuing to serve as the Constitution’s protector.
Author(s) Name: Gowri Bipin (Symbiosis Law School, Hyderabad)
Reference(s):
[1] M. Jain, Indian Constitutional Law (7th edn, LexisNexis) <https://advance-lexis-com.eu1.proxy.openathens.net/api/permalink/86c38e41-c637-43a4-b07c-561a0ffb58b1/?context=1523890> accessed 26 July 2023
[2] PN Bhagwati, ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial Restraint’ (1992) 18 Commonwealth Law Bulletin 1262 <https://doi.org/10.1080/03050718.1992.9986224> accessed 26 July 2023
[3] Gautam Jayasurya, ‘Indian Judiciary: From Activism to Restraint’ (2010) SSRN 1601843 <https://ssrn.com/abstract=1601843> accessed 26 July 2023
[4] Constitution of India 1950, art 21
[5] ‘Judicial Activism, Restraint & Overreach’ (Drishti IAS, 27 May 2022) <https://www.drishtiias.com/to-the-points/Paper2/judicial-activism-restraint-overreach#:~:text=Judicial%20activism%20has%20a%20great,judiciary%2C%20executive%2C%20and%20legislative.> accessed 9 August 2023
[6] Jain (n 1)
[7] Maneka Gandhi v Union of India (1978) 1 SCC 248
[8] Constitution of India 1950, art 21
[9] Vishaka & Ors v State of Rajasthan & Ors (1997) 6 SCC 241
[10] Constitution of India 1950, art 14
[11] Constitution of India 1950, art 19
[12] Constitution of India 1950, art 21
[13] Constitution of India 1950
[14] Vishaka Guidelines 2017
[15] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013
[16] Jayasurya (n 3)
[17] S.R. Bommai & Ors v Union of India & Ors (1994) 3 SCC 1
[18] Almitra H. Patel & Anr v Union of India & Ors (2000) 2 SCC 689
[19] ‘One Has to Maintain Balance between Judicial Activism and Judicial Restraint: Delhi HC Chief Justice on Retirement’ (The Indian Express, 2022) <https://indianexpress.com/article/cities/delhi/one-has-to-maintain-balance-between-judicial-activism-and-judicial-restraint-delhi-hc-chief-justice-on-retirement-7815711/> accessed 26 July 2023
[20] Bhagwati (n 6)
[21] ‘Judicial Activism, Restraint & Overreach’ (Drishti IAS, 2022) <https://www.drishtiias.com/to-the-points/Paper2/judicial-activism-restraint overreach#:~:text=Judicial%20activism%20has%20a%20great,judiciary%2C%20executive%2C%20and%20legislative.> accessed 9 August 2023
[22] V Sudhish Pai, ‘JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT’ (2020) National Judicial Academy <https://nja.gov.in/Concluded_Programmes/2019-20/P-1187_PPTs/1.JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT.pdf> accessed 26 July 2023
