Judicial Activism is a very broad and vast concept, one which is not exactly easy to define. It is accepted or rather interpreted in different views and understanding by different people. According to my understanding in simple terms Judicial Activism is a requirement to defend or guard a common man’s interest in today’s society by the judiciary. It is the use of judicial powers to understand, express and enforce what is beneficial for the people in general and also in the best interest of the country. In short, it means that the Supreme Court and other lower courts become activists and make the authorities to act and sometimes also direct the government regarding policies and matters of administration. It is the rendering of decisions at times, which are in tune with the temper and tempo of the times where judges act like independent trustees or guardians to protect and safeguard interests of the society and the “aam aadmi” (Common Man).
So, how has Judicial Activism come into existence and when is the need or to be precise when does it emerge? The three pillars of democracy; Legislative, Executive and Judiciary have been given different roles by our founding fathers in the Constitution. So when one pillar becomes dysfunctional the other should do the needful and guide or lay down the laws as per the constitution. Origin of Judicial activism was to reach out and help the weaker sections, silent sufferers, the forgotten and disadvantaged citizens. Mainly it arises when the Executive fails to implement the Fundamental Rights and defend the liberties of its citizens. The judiciary emerges as a Knight when there has been a failure of the Executive and Legislature or wrong action or even inaction. There is a very urgent need of Judicial Activism as the whole system has been plagued by ineffectiveness and inactiveness and there are doubts at some of their actions. There is a theory of Vacuum filling that says that there would be no judicial activism or “interference” if there is no vacuum to be filled. This implies that the Executive or the Legislature is lacking interest and will and the Judiciary would need to step in and fill the vacuum for the overall welfare of the people. Also at times when there is a “social want “ due to the ever-changing dynamic society, there are certain demands of the people which are not met by the Executive or the Legislature the Judiciary takes the matter on his own hands and provide the people what they want.
• CRITICISM : "Power corrupts and absolute power corrupts absolutely"
A very main aspect is the interpretation of the constitution and separation of power which is time and time again brought up by the critics of Judicial activism saying that the Constitution’s basic fundamentals do not instruct the judiciary to intervene or exercise in the matter of the Executive or Legislative. There has been lot of questions over the authority and extent of Judiciary to intervene or exercise in certain cases. Some people think that this is against the constitution and hence a possible threat to Democracy. Allegations are made on some Judges that there is an abuse of PILs (public interest Litigation) in most cases and these are just to grab the spotlight and get some attention of the media. Questions are asked by the guilty parties as a counter attack over the credibility and transparency of the judiciary when they are directly under threat. The most repeated argument by the critics has been that the lines shouldn’t be crossed by the judiciary as it strikes down the basis of democracy. Following are some of the concerns which actually makes one think of the negative side of judicial activism no matter how big a fan you are of it. Firstly Clarity, it is actually true that limits of judicial activism are not really defined by the constitution. People against Judicial Activism say that judiciary has the right to express its concerns and take action in cases where Fundamental rights of the people have been violated but when it comes to deciding policies it should only advise only at times but not direct the Executive how to go further and force to change the policy. Secondly, the most valid point to be honest is of Consistency. There is a lack of Consistency, as in one bench or judge may feel that this is a case where judiciary should do something whereas other would label it as not a matter of judiciary and choose to be ignorant. This great quote against judicial activism which is worth sharing was said by Associate Justice of United States Supreme Court, Felix Frankfurter who is very famous till now for his witty and bold quotes. By this quote he wanted to express what are the judges are supposed to do keeping the constitution in mind and that there should be self control in the exercise of their powers. He said “If judges want to be preachers, they should dedicate themselves to the pulpit; if judges want to be primary shapers of policy, the legislature is their place.”
The political parties obviously have never failed to express their feelings towards it. Though they are cautious about how they say it, it is nice for a change to see that these people who act like the boss of the people rather their representatives at least think twice about what they say. In January 2001 conference of judges headed by the country's chief justice our own Prime Minister MM Singh was very much concerned over the limits of the Judiciary said “The dividing line between judicial activism and judicial overreach is a thin one." And said that the judges are going “too far” but this isn’t the only time where Legislature and executive have tried their best to curb or stop this concept of Judicial Activism. In the 42nd amendment, 1976 which inserted clause 4 & 5 to article 368 stated that the Parliament has unlimited power to amend the constitution according to article 368 and that the Judiciary has no power whatsoever to test the validity of these amendments. Though the Supreme Court did hit back in the Keshwananada Bharti case of 1976 by saying that parliament can amend the constitution but without disturbing the “basic structure of the constitution” and also that it can’t take away the power of judicial review. But this cold war hasn’t ended yet, in recent times there has been war of words between the judiciary and the political class. According to them it is Judicial Adventurism or Overreach which can lead to tyranny and can be harmful to our nation due to the lack of restraint of Judiciary powers.
Judicial Activism: Urgent need of the Hour
As we all know that recently the Judiciary has been the centre of controversy because of the sudden rise in the level of judicial intervention, majorly due to the expansion of Public Interest Litigation, I for one don’t actually understand how harmful can it be. I mean to be honest we aren’t having the time of our lives right now and right now we need a change, a will by these institutions to help the country tackle the problems that we are facing (social, economical, political). There is a sense of injustice right now overall the country; this feeling of helplessness mixed with angst and rage is coming over the country, sections of the public sought redress through democratic means projected via huge protests all over the nation. The volume of public anger could burst out into violent outbursts and we certainly don’t want to end up like the Middle Eastern countries were hundreds of people are dying every day. Judicial Activism has given the people a glimmer of hope in today’s situation where there is a weak and unstable government, feeble opposition and a hung up or paralytic parliament.
Supreme Court despite of all the criticism and the constitutional limits has emerged as a Messiah of Justice in the true sense of the world. The only thing the judiciary must keep in mind is that while going overboard to do justice to common man must not overstep the limitations prescribed by the constitution. The political class forget that they are the representatives, servant of the public and not the dictator. In our democratic set up the people are supreme. Our Preamble clearly states in the first line “WE THE PEOPLE OF INDIA” which emphasises on the source of authority that the Constitution derives its authorities from the people of India. If referring to the constitution I clearly see that why our founding fathers wanted an Independent judiciary. What critics of Judicial Activism forget that the power of the courts is inherent i.e. given by the Constitution. Judiciary has been given the responsibility as the final interpreter of the Constitution by the constitution itself
I say that the "judicial overreach" that the prime minister spoke about is the direct result of legislative and executive neglect or "under-reach". That entails poor performance, not so much in the making of laws, but in their implementation. Parliamentarians, politicians must act and show a better record of performance. And, this Judicial “interference” with legislative or executive functions will hopefully stop. The question which arises: "Which is supreme under our constitution—Parliament or the Supreme Court?" is a mischievous one. The answer is "neither". It is the constitution and the laws that are supreme. And it is the constitution that declares that the final interpreter of the law is the Supreme Court. Under our constitution, that arbiter is the country's highest court.
Having heard certain politicians referring it as a Lakshman Rekha which in no case should be crossed or breached, I think that that this “Lakshamn Rekha should not be just flexible but also selectively Permeable so that in certain cases there can be exceptions made in the best interest of the people and of the society and country at large. Last thing I wanted to point out is that because Sita crossed the Lakshman Rekha, Ravan (evil) was killed.
It has been said that our courts should not interfere; instead, they should leave it to the elected representatives of the people. That is right but in practice it’s not. Well after 60 years since Independence, after 14 general elections and all the publicity that is given to proceedings in Parliament, the people are disgusted by the behaviour of the members of the parliament and are dissatisfied with how the legislative body functions—that is, if and when it functions at all. In the past several years, almost every session of Parliament has been disturbed by some dispute or political fight of the moment between parties, but the issues of national importance are just not cared for. But there is a lack of political wills here, the bills which don’t threaten the political parties are passed in minutes amidst din and shouting the. Throwing chairs and shoes and shouting and use of abusive language is itself a reason why people don’t trust the legislature anymore.
Disharmony between the government and the courts is a different matter—if there was complete harmony between them, this country would not be worth living in. As that great democrat, Edmund Burke, used to say “The fire-alarm at midnight may disturb your sleep, but it keeps you from being burned at night."
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