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What is Judicial Activism? Explained

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Content

  1. Introduction
  2. Evolution of judicial activism
  3. Definitions of judicial activism
  4. Indian perspective on Judicial Activism
  5. Judicial Activism and Public Interest Litigation
  6. Beginning of PIL
  7. Recent development in PIL and few dilemmas
  8. Criticisms
  9. Conclusion

Introduction

In light of the unchecked actions of the legislative and executive branches of the government, the idea of public action and judicial activism expanded quickly over time and gained enormous legitimacy among Indians. A core requirement of democratic ideals is for citizens to participate in shaping government policies and initiatives in the sake of good governance. By inventing judicial activism, the Indian court acts as an activist to advance the interests of underrepresented groups in society, guaranteeing that dominant and powerful forces cannot silence their voices.

Evolution of judicial activism

Arthur Schlesinger Jr. first used the term "judicial activism" in 1947. In a piece he wrote for Fortune, Schlesinger explored the judiciary's function in the democratic political system of the United States. Schlesinger wrote down a negative connotation for the word "judicial activism," although using it in a thought-provoking way to describe nine Supreme Court decisions from that era. He viewed judicial activism as a judge abusing their position and described it as a threat to democracy, which depends on the equal division of powers between the executive, legislature, and judiciary (Kmiec, 2004). Schlesinger, however, was unable to precisely define the phrase "judicial activism" at the time because it was not acknowledged.

Justice activism had a good impact prior to 1950. Judicial activism was considered a crucial component of protecting citizens' democratic rights. Scholars like Albon P. Man and Afred L. Scanlan praised Justice Murphy's efforts as a judicial activist on the Court to safeguard civil rights (Kmiec, 2004) In contrast to "judge misusing authority," judicial activists were better known as civil rights campaigners (Kmiec, 2004). Midway through the 1950s, renowned law professor Edward McWhinney at the University of Toronto considered the ineffectiveness of judicial review as a serious policy-making process, giving rise to the term's negative meaning. He contends that there are two problems with judicial activism. First, he claims that judges who were properly trained in law lacked the administrative prowess necessary to translate ideas of the community into sound laws. On the other hand, judicial activism was significantly hindered by a protracted public debate and conflicting viewpoints. Schlesinger and McWhinny made significant contributions to the public and academic discourse on the subject of "judicial activism," respectively.

Definitions of judicial activism

It might be challenging to describe judicial activism in the context of legal academia. Although the term has recently gained widespread popularity among the general public, a number of experts have proposed several interpretations for it, distorting the true meaning of the phrase in the process. According to several academics, judicial activism refers to the practise of judges using their authority to overturn laws enacted by other parts of the government. Prof. Suntein claims that "judicial activism" is the practise of judges preventing other institutions or government officials from making decisions about policy that the Constitution does not expressly forbid. "Judicial review, the power of the courts to measure legislative and executive actions against the constitution and render them nugatory if they violate it, is a necessary but insufficient condition of judicial activism, which involves the further step of policymaking," wrote Kennath M. Holland in his book "Judicial Activism in Comparative Perspective" (Holland, 1991). This notion of judicial activism is highly debatable because all other arms of the government should have equal weight in the interpretation of the constitution, not just the court.

Indian perspective on Judicial Activism

The legislative, executive, and judicial branches of government coexist peacefully on the basis of the rule of law under India's democratic system, which is based on the separation of powers. The role of the judiciary is to mediate disputes, to check the unrestrained behaviour of the other two organs of government, to protect and safeguard the rights and liberties of the people, and to check the executive, which is composed of the council of ministers, which is responsible for administrative functions of the country within constitutional confines. The Indian judicial system plays a crucial role in determining the legality of laws, as well as how they should be interpreted and put into practise after being created by the government. In addition, the judiciary has jurisdiction over the resolution of disputes between parties and those resulting from conflicts between the Center and the States and among the States. Additionally, it defends citizens' freedoms and rights, and is seen as an active tool in ensuring that everyone receives justice. However, the Indian judiciary has been asked to play the role of a protector in recent times due to the legislature and executive branch's failure to carry out their responsibilities of law enforcement, which has resulted in violations of peoples' autonomy and safety. As the socioeconomic and political climate has changed, the Indian court has evolved into a social and economic transformer.

The judiciary is under intense pressure to ensure fair justice for all as a result of the rising rates of illiteracy and poverty. The judiciary's responsibility to hear public complaints has long been recognised because both the legislature and the executive branch are frequently accused of being apathetic to the difficult issues that affect the people. A brand-new phenomena known as judicial activism has emerged, which the Indian judiciary has adopted from the American model to start the role of the courts in social welfare. The Supreme Court was thought to be the weakest body of government, despite the fact that the Indian Constitution, the cornerstone of India's democratic principles, granted it the authority to be the last arbiter of the constitution and the defender of legal rights and fundamental liberties.

The Indian judiciary's involvement in state policy has only recently increased, and creative judicial activism is the primary driver of this. The judiciary's importance grew as a result of judicial activism. From 1950 to 1960, the Supreme Court's primary function was interpretation. The Supreme Court started to speak out against delay and inefficiency on the part of the legislative and executive branches in the 1970s. In order to restrain the authoritarian inclinations of the legislative and executive branches of the government, the Indian court began to take action under the guise of judicial activism. Cases like Maneka Gandhi v. Union of India and Bandhua Mukhti Morcha v. Union of India reflect a significant turning point in the development of the Indian judicial system. The Supreme Court now has a new function as a result of all these events. By the end of the 1970s, the Supreme Court's interpretation of Article 21 marked a turning point in the development of judicial activism in India's democracy.

The Maneka Gandhi v. Union of India ruling by the Supreme Court restored the Indian public's lost faith in the judicial system. By passing constitutional revisions during the emergency period, the Congress administration led by Indira Gandhi seriously harmed Indian citizens' fundamental rights. The Supreme Court transformed itself into a "institutional ombudsman of human rights" with its decision in the Maneka Gandhi case (Mody 2013: 32). Several rights, including the right to an education, the right to privacy, the right to travel abroad, the right to legal representation, the right to prompt justice, the right against incarceration abuse, the right to safe working conditions and medical care for employees, the right to clean water and air, the right of citizens to food, clothing, and shelter, the right of every child to reach their full potential, the right to access to roads, etc., the right of prisoners, the right to a humane and healthy environment, the With this ruling, the Article 21 right to life and personal liberty has gradually taken the place of depository in the field of human rights and freedom. In addition, Articles 32 and 226 of the Constitution give the Indian court system the authority to issue writs and orders for purposes other than just upholding fundamental rights. Justice activism advances welfare state objectives. Through judicial activism, the judiciary has endorsed a proactive strategy in which the courts go beyond their traditional roles of law interpretation and dispute resolution to defend the rights and liberties of the populace, which would otherwise fall under the purview of the executive and legislative branches. In addition to promoting socio-economic rights under the Directive Principles of State Policy envisioned in Part IV of the Indian Constitution, which are not recognised by the law, the judiciary's activist role includes defending fundamental rights specified in Part III of the Constitution.

The Supreme Court and High Courts started using the tactic of judicial activism more frequently starting in 1980. Today's court now protects individual liberty and social cohesion from excessive institutional involvement in addition to settling conflicts and punishing lawbreakers. The Indian Constitution makes no reference to the concept of judicial activism. The founding fathers granted the judiciary an independent position while establishing the constitution with the hope that it would play an active and fearless role alongside the legislative and executive and be free from their interference. As a result, the public now demands that the court take an active role in areas where the executive has failed due to the changing socioeconomic climate. Instead of limiting its duty to that of an interpreter and process monitor, the court has evolved into a constitutional policy-making body. The courts are supposed to actively participate in shaping society in our democratic system.

Judicial Activism and Public Interest Litigation

The Indian judiciary increased access to the courts for the underprivileged and needy through public interest litigation (PIL). As of 1979, the Supreme Court actively participated in bringing social justice to those societal groups that were denied access to their fundamental rights. There was a strong consensus that the judiciary solely favoured the upper class of society. The judiciary's function was characterised as regressive between the 1950s and 1960s. The Indian judiciary frequently exercised a supervisory function through PILs to correct incorrect policies and actions of the government and governmental agencies. The Supreme Court's decision to hear complaints from social activists on behalf of individuals and certain groups in society who could not afford legal representation marked the commencement of PIL jurisdiction. With the advent of PIL, the Indian court was given the chance to balance out bad legislative legislation. The Supreme Court and high courts focus on poor and underprivileged groups in the rapidly evolving modern social structure since the legislative was unable to meet their expectations, and the judiciary must step up to meet the requirements of the people by providing equal justice and free legal aid.

During the emergency period, Justice V.R. Krishna Iyer and P.N. Bhagwati's writings laid the seeds of judicial activism. Public Interest Litigation (PIL), a brand-new phenomenon, expanded the reach of the judiciary's role in public affairs. Law is a social auditor, and only someone with the public interest can ignite this, in the words of Justice Iyer ( Semwal and Khosla, 2008). On the other hand, Justice Bhagwati believed that courts should use innovative methods and strategies to give free legal assistance to those groups in society who are denied fundamental human rights. Areas where the general public's personal rights are violated as a result of governmental institutions' disregard fall under the purview of PILs. PILs guarantee that justice will be served to the vast majority of people who are denied prompt access to the legal system. Many social activists actively work to bring oppressed and underprivileged classes justice in the Indian context. The judiciary has established itself as a reformer, looking into the suffering of the society's marginal and weaker groups, including women, children, bonded labourers, people with mental and physical disabilities, and convicts, and attempting to act in their welfare. In keeping with the principles of the welfare state, public interest litigation is a distinctive form of judicial activism that supports both individual and collective rights.

Beginning of PIL

The Supreme Court was interested in a number of instances in the late 1970s. It has been observed that most of the time, a small number of charitable individuals and social and volunteer groups filed petitions on behalf of others who were unable to seek legal recompense because of their disadvantage and financial constraints. In a series of essays that were published in a newspaper in 1979, Supreme Court attorney Kapila Hingorani described the challenging circumstances facing Bihar convicts who were awaiting trial. After a prisoner wrote to Supreme Court Justice Krishna Iyer regarding the inhumane conditions that inmates endure in jail, the Supreme Court took prompt action and issued an order for a more humane environment in jails. This was the first instance in which the Supreme Court used a PIL to intervene.

A writ petition filed in 1980 by two professors detailing the horrendous conditions of detention in the Agra Protective House for Women was the first instance of judicial activism. The two academics with legal backgrounds disclosed that the protective home's demeaning and harsh conditions violated Article 21 of the Constitution, and that inmates' lower socioeconomic standing made it difficult for them to seek judicial recourse. A socialist organisation then exposed the slave-like conditions of the workers at the building site in a letter to the Supreme Court. The same year, a journalist who had been terrified by Bombay's expulsion of pavement dwellers brought this matter to the Court's attention. In a similar way, a journalist complained in writing to the Supreme Court about the treatment of female inmates while they were in custody, and the court accepted the letter as a writ petition. In these situations, the introduction of PIL allowed the impoverished and marginalised strata of society to easily reach the courts with the aid of social activists.

Recent development in PIL and few dilemmas

In recent years, a brand-new category of litigation known as "Public Cause Litigation" has emerged in which the court can correct the actions of governmental agencies as well as examine the suffering of marginalised groups (Andhyarujina, 2012). Public-spirited individuals are now allowed by the court to speak out against government actions that are hurtful to the feelings of the populace. The Supreme Court has ordered numerous interventions for current public affairs, including "control over automobile emissions, air, noise, and traffic pollution; gave orders for parking fees; wearing helmets in cities; cleanliness in housing colonies; disposal of garbage; control of traffic in New Delhi; made the use of seat belts mandatory; ordered action plans to control and prevent the monkey menace in cities and towns; and ordered measures to prevent accidents" ( Andhyarujina, 2012)

The Indian judiciary started supervising inquiry proceedings against the wealthy and powerful layers of society in the middle of the 1990s. As a result of the public's lack of confidence in national investigative agencies like the CBI, the Supreme Court has taken on a supervisory role in numerous corruption cases involving individuals who believe they are beyond the law. A significant turning point in this regard has been the Supreme Court's ruling in the Jain hawala case. Some of the nation's top lawmakers were accused of accepting bribes from the money laundering agent who operated out of a dairy farm in the Jain hawala case. The Supreme Court subsequently instructed CBI not to provide any case-related material to the PMO office, which was then run by Prime Minister P.V. Narashimha Rao. Only after the Supreme Court intervened in 2009 did the CBI swiftly go forward with its probe into the 2G telecom scandal, where the Telecom Minister and other government officials were charged by the Supreme Court.

Because of the judiciary's activist role, the Supreme Court made a significant contribution to the creation of progressive laws such the rights to food, education, and information. Judicial activism has given social action in India a new dimension. Instances where the Indian judiciary departed from its traditional role of interpreting laws and stood against injustices include the Supreme Court's involvement in the 2G spectrum and coal block allocation scams, as well as its directive to states to provide midday meals to schoolchildren under the historic National Food Security Act of 2013. 2015 (Rajagopal) The Supreme Court is the most effective branch of the government when it comes to social policy, according to Harsh Mander, the Commissioner to the Supreme Court on the right to food. In a letter to the Supreme Court, Harsh Mander described the appalling conditions in which homeless persons were perishing on Delhi's streets in the dead of winter. As a result, the Supreme Court ordered in 2011 to build a homeless shelter in Delhi that could house 100,000 people ( Green, 2012)

Criticisms

Despite all of its positive contributions, the Indian judiciary has occasionally come under fire for acting as an activist. It has been suggested that there are a few instances where the judiciary's activist function has stepped into roles and responsibilities that belong to the other two governmental branches.

The Supreme Court also got involved in the military conflict in Hazratbal, Kashmir, in 1993, ordering the Indian forces to provide more food to the hostages. In addition to interfering with military activities, the Supreme Court also managed Jharkhand Legislative Assembly proceedings, despite the fact that Article 212 of the Constitution forbids courts from looking into legislative processes. The Chief Justice of India and a panel of four judges were given the authority to appoint judges by the Supreme Court under the judicial activism jurisdiction. As a result, the Indian President no longer had the power to name justices after consulting with the Chief Justice. Since no other nation in the world has granted judges the authority to appoint themselves, this element of the Indian judiciary is distinctive.

As a result, there were several debates in 2015 regarding the Judicial Standards and Accountability Bill and the National Judicial Appointments Commission Law between the judiciary, legislative, and executive. The court's oversight of government programmes and policies has not pleased the Indian government. Even more, Prime Minister Narendra Modi emphasised how the Court's inspection of the distribution of food to those living below the poverty line was interfering with the government's social welfare programme and violating the separation of powers established by the Indian Constitution. Few academics even believed that certain judges' rise to fame through judicial activism was unrelated to their function in conventional legal proceedings. Additionally, it has been contended that public interest litigants frequently used arbitrary tactics and techniques that endangered the direction of policy.

Conclusion

In India, judicial activism has sparked a discussion among the general public. The general public reacted favourably and negatively to the idea. According to one school of thinking, judicial activism is essential because it upholds Indian society's democratic principles and restores the public's lost faith in the judiciary, which was previously solely accessible to the wealthy and elites. However, those who oppose judicial activism contend that it gives judges undue power, upsetting the delicate balance of authority between the legislative, executive branch, and judiciary that is a cornerstone of India's democratic system founded on the principle of separation of powers. One cannot, however, deny the reality that judicial activism deepened and expanded the role of the Indian judiciary in the political system. By launching judicial activism, the Indian judiciary overcame a number of obstacles that the government and legislature had put in place. The judiciary now bears the executive's responsibility for ensuring good governance in society. The judiciary has been asked to carry out tasks and functions outside of its purview because of corruption cases. The judiciary must take on an activist role to counteract the executive branch's inefficiencies.
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