Judicial Activism

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What is Judicial Activism?
Judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.
Most recent case:
  • SC ordered the creation of a National Disaster Mitigation Fund while national and state disaster response funds already exist
  • Opposition has sought a court-monitored dispute redress mechanism in case of the GST, to which Finance Minister remarked, “Step-by-step, brick-by-brick, the edifice of India’s legislature is being destroyed.”
Why Judicial Activism is good?
  • There are many issues that are sensitive, which need to be handled with a certain amount of care that many laws don’t allow. Judicial activism allows a judge to use his personal judgement in situations where the law fails.
  • Judges have sworn to bring justice to the country. This does not change with judicial activism. It allows them to do what they see fit, within reasonable limits of course. It gives judges a personal voice to fight unjust issues.
  • It also provides a system of checks and balances to the other government branches.
  • It has its own system of checks and balances too. Even if a judge decided and ruled that certain law is unjust, it can still be actually overruled with an appeal to another court, even to the Supreme Court.
Why Judicial Activism is not so good?
  • While delivering any judgement in this regard, courts are often ill-equipped to weigh the economic, environmental and political costs involved.
  • When judicial activism is used, it is like the laws do not apply. The judges can override any law that there is, which technically means there are no laws in the judges’ eyes.
  • Judicial activism becomes a more profound subject for those who serve on the Supreme Court, as their rulings generally stand. With the power to have the final say on matters, their judicial opinions would also become standards for ruling on other cases.
  • It sees the letter of the law and politics as separate issues.
“Today the Supreme Court of India is an active intervener in policy formulation.” In the light of some of recent judgements of the Supreme Court, critically analyse the statement. (200 Words)
Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government. Judicial activism is a way through which relief is provided to the disadvantaged and aggrieved citizens. Judicial activism is pro­viding a base for policy making in competition with the legislature and executive. Judicial activism is the rendering of decisions, which are in tune with the temper and tempo of the times.
Judicial activism has arisen mainly due to the failure of the executive and legislatures to act. Sec­ondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods. Thirdly, it occurs because the entire system has been plagued by ineffec­tiveness and inactiveness.
In Menaka Gandhi case in 1978, apex court substituted the “due process clause” in Article 21 instead of “procedure established by law” and initiated the process of judicial activism.
Instances of judicial Activism in protection of Part 3 of Constitution:
  1. Orders issued on Cases relating to admission to professional colleges
  2. Orders issued to close down factories and to tone up the pollution levels (Taj Trapezium case)
  3. Monitoring the quantum of rainfall and flow of water into irrigation canals
  4. Calling for data on deforestation
  5. Directing CBI to inquire into scandals, crimes, and custodial deaths, setting deadline for compliance
  6. Courts have set aside the decisions of Speakers disqualifying legislators under the anti-defection law
  7. Expanding scope of Article 21 for example: education to children, life with dignity, establishing green benches, etc.
  8. Delhi CNG Case
  9. SIT’s
Judicial activism is not apart from judicial activities. The essence of true judicial activism in the rendering of decisions which are in tune with the temper of the time, so it must not overreach judicial jurisdiction and respect division of powers demarcated in constitution of India.
How is judicial activism related to the protection of fundamental rights? Has it helped in expanding the scope of fundamental rights? Illustrate with suitable examples. (200 Words)
Supreme Court is a protector of Fundamental Rights and guardian of Constitution. It is the duty of government of any day to legislate and formulate policy in line with Fundamental rights and Directive principles of State Policy.
Recent and famous Supreme Court’s interventions:
  1. 2G case – setting up SIT and ordering re-auction licenses
  2. Coalgate – quashing screening committee and ordering re-auction of coal mines
  3. Keeping section 377 of IPC intact, stating social necessity, though against natural rights.
  4. Quashing section 66A from IT Act, stating unconstitutional
  5. Declaring that high courts would not entertain challenges to the orders of the Armed Forces Tribunal (AFT), making Armed forces “lesser citizens”.
Task of Judiciary is not to formulate policy, but, failure of good governance has forced judiciary to widen its limited role in democratic practices of the nation.
In cases like Sahara Group, high profile citizens mock SC jurisprudence, displaying weakness of executive which allows wrongdoers to bypass “rule of law”.
It is not to be proud of that Supreme Court intervenes in policy decisions, it matter of shame for
government of union and states that they don’t adhere to constitutional standards. Its shame for civilians who are responsible for electing lawmakers who had often mocked “due process established by law”.
If government considers recommendation of all stakeholders and experts to enact legislation, Judiciary will not need to intervene. Lastly, such interventions is duty of Supreme Court, from which it can be relieved by apply good governance.
Related Questions:
  1. What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (UPSC Mains 2016)
  2. Is it possible to distinguish between judicial review and judicial activism in India? Does the recent behavior of the Indian judiciary partake more of judicial activism? Argue with suitable examples. (UPSC Mains 2005)

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