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COMPARATIVE ANALYSIS OF JUDICIAL ACTIVISM: INDIA, USA, AND FRANCE BY: SHEETAL NIKAM
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"COMPARATIVE ANALYSIS OF JUDICIAL
ACTIVISM: INDIA, USA, AND FRANCE"
AUTHORED
BY: SHEETAL NIKAM
ROLL NO: 20
(LLM 1st Sem-II)
P.E.S.
Modern Law College, Ganeshkind, Pune
Savitribai
Phule Pune University, Pune-07
ABSTRACT:
Judicial activism, the phenomenon wherein courts actively interpret and
apply the law to shape societal
change, has been a subject of significant scholarly debate and practical
importance. This paper aims to
conduct a comparative study of judicial activism in three prominent legal
systems: India, the USA, and France.
India, as a common law jurisdiction, has witnessed significant judicial interventions in various policy
domains, including environmental protection, social welfare,
and governance. The Supreme Court
of India, through
its expansive interpretation of fundamental rights,
has often played a proactive
role in addressing societal issues
and enforcing governmental accountability.
In contrast, the United States, also a common law system, has a long
history of judicial activism, particularly through
landmark decisions such as Brown v. Board
of Education and Roe v. Wade. The US Supreme
Court's interpretation of the Constitution has led to significant social
and legal changes,
influencing public policy
and societal norms.
France, a civil law jurisdiction, has a different approach to judicial
activism due to its legal traditions and the role of the Conseil
d'État (Council of State).
While French courts
generally exercise restraint
in reviewing legislative acts, the Conseil
d'État has a unique position
in supervising the actions of the administration, which has implications for judicial activism
in the country.
By comparing the approaches of these three legal systems, this paper
seeks to analyze the factors influencing
judicial activism, the role of the judiciary in shaping public policy, and the
impact of judicial decisions on
societal transformation. Through this comparative study, we aim to provide insights into the dynamics of judicial
activism in different legal contexts and its implications for governance and societal change.
This comparative analysis will focus on key aspects of judicial activism,
including the scope of judicial review,
the relationship between
the judiciary and the other branches of government, and the role of public
opinion and legal culture in shaping judicial
behavior.
Keywords: Judicial Activism, Judicial Review, Constitution.
INTRODUCTION:
The theory of judicial activism emerged during the judicial review
process in the United Kingdom. The British Constitution is an example
of an unwritten constitution that allows for judicial activism. During Stuart’s reign (1603-1688), the unwritten constitution
created the possibility of judicial review, and thus judicial
activism was born.
The judicial review principle was established in 1610 by Justice Edward
Coke. In the Thomas Bonham v. College of Physicians case
(1610), he made the decision that any law passed by parliament that is against common law or reason can be reviewed
and declared void by the courts. This
theory of judicial review and, correspondingly, judicial activism was supported
by Sir Henry Hobart, who succeeded Sir Edward Coke as Chief Justice of the Court of Common Pleas in 1615.
The first significant case involving the idea of judicial review was Madbury v. Madison (1803), in which the US Supreme Court explicitly
declared certain provisions of the Judiciary
Act of 1801 unconstitutional. For
the first time in American history, a court declared a piece of legislation to
be unconstitutional. Since the
Supreme Court ruled that federal courts have the authority to invalidate unconstitutional laws, judicial
review has gained popularity in the United
States.
However, the exact phrase “judicial activism” was used by Arthur
Schlesinger Jr. in his article “The Supreme
Court: 1947,” which appeared in the January 1947 issue of Fortune Magazine. He
used the phrase to categorize the American Supreme
Court judges at that time as judicial
activists, champions of self-restraint, and judges positioned in between the two sections.
Further, the American judiciary used the power of judicial review to
usher in the era of judicial activism
in 1954, with the landmark case of Brown
v. Board of Education (1954), where
the US Supreme Court ruled unanimously (9-0) that racial segregation in public schools
violated the Fourteenth Amendment to
the Constitution, which
forbids states from depriving anyone
within their jurisdictions of equal protection under the law. Furthermore, the Supreme Court in the case of Plessy
v. Ferguson (1896)
not only abolished laws that treated
Black people as a separate
class but also
guaranteed such rights that
were clearly provided in the Constitution.
The term “judicial activism” was later used on numerous occasions, but
the first time a judge used it in a court was in the case of Theriot
v. Mercer in
1959. In a related case,
Judge Joseph C. Hutcheson used it to oppose a dissenting judgment.
He was opposed to judicial activism and the outcomes it sought. The usage also made reference to the shift in connotation that took place in the middle of the 1950s.
Some judges viewed
the term “judicial
activism” as an encroachment.
Furthermore, the ability to engage in judicial activism became a
requirement for the existence of an independent
judiciary in nations that upheld the rule of law, and other modern democracies
quickly followed, giving
rise to the concept of judicial activism.
What is Judicial Activism?
The concept of “judicial activism” is opposed to the idea of “judicial
restraint.” Both of these terms are
frequently used to describe the assertiveness of judicial power, and they are
also used from the perspectives of
personal and professional views, putting the courts in a position to lean
towards one of the views to play the
appropriate role. The terms “judicial activism,” “judicial supremacy,” “judicial absolutism,” “judicial anarchy,” and others are frequently used interchangeably in the United
States. The term “judicial activism” is also regarded as ascriptive.
This implies that the judges’ performance is based on their ideologies, opinions, values, and interests.
The scope of judicial activism
is so broad that no precise definition exists. It does not have a statutory
definition because each jurist or scholar defines
it differently. Supporters of judicial activism
claim it to be a proper form of judicial review. In contrast, Thomas
Jefferson refers to it as the ‘despotic power’ of Federal
Judges. According to V.D. Kulshrestha, judicial activism occurs when the
judiciary is charged with actually participating in the law-making process and subsequently emerges as a significant player in the legal system.
EARLY CASES
OF
JUDICIAL ACTIVISM
IN
INDIA
The following Supreme Court rulings provide insight into the development
of judicial activism in independent India.
During the reign and dominance of British courts, the Supreme Court
functioned as a technocratic court, but it gradually began to take an activist
stance. The first landmark case in this regard was A.K. Gopalan v. the State of Madras (1950), in
which a writ was filed to determine whether detention without trial was a violation of fundamental rights under Article 14, 19, 21, and 22. The Supreme Court opined that the written
Constitution contains the authority for judicial review.
Even though the challenge
was unsuccessful, it did start a new legal trend that became apparent in the
years that followed.
FREEDOM OF PRESS
In the case of Sakal Newspapers
Pvt. Ltd. v. Union of India (1962), the government sought to regulate the number of pages in relation
to the price of the newspaper in accordance with the Newspaper Act of 1956 and order of 1960. The Supreme Court ruled
that newspapers could not be subject
to the same regulations as other businesses because they served as a forum for
the exchange of ideas and information. This decision broadened the protections for free
speech provided by Article 19(1)(a) of the Constitution.
RESERVATION POLICY
In the case of Balaji v. State of
Mysore (1963), the
Supreme Court reasoned
that economic backwardness was
the root cause of social backwardness. The Court distinguished caste from class and ruled that caste should not be used to
assess backwardness. Additionally, it was decided that the reserved
category’s percentage of the total should not exceed 50%. It was decided
that Article 14, as well as the
subsets of Articles 15 and 16, must be complied with. Similar
limitations on the reservation were imposed by the Court in the case
of Chitralekha v. State of Mysore
(1964).
DOCTRINE OF PROSPECTIVE OVERRULING
DOCTRINE OF BASIC STRUCTURE
HABEAS CORPUS
CASE
The case of ADM Jabalpur
v. Shivkant Shukla (1976),
in which Article
21 was brought up, resulted
in the most contentious Supreme Court decision regarding judicial
activism. The majority of the Bench
hearing the case of ADM Jabalpur held that in cases of dire emergencies, such
as those that existed between
1975 and 1977, a legal procedure could be established, following which even human life could be taken
away. Although Justice
Chandrachud, who wrote the decision, faced criticism
for penning a pro-government
opinion, the legal theory he advanced was an excellent illustration of judicial activism. Justice Chandrachud has
interpreted Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to
maintain the country’s sovereignty if it is threatened by either internal
or external aggression.
COMPARISON OF LEGAL SYSTEMS:
COMMON LAW VS. CIVIL LAW
India, the USA, and France represent different legal traditions: India
follows a common law system, the USA has a common
law system at the federal level and a mix of common law and civil
law at the state level,
and France follows
a civil law system.
·
In common law systems, judicial decisions are binding
precedents that guide future cases, leading to a more flexible and evolving legal system.
·
In civil law systems, laws are codified and judges are
expected to apply the law rather than create new law through
their decisions.
CONSTITUTIONAL PROVISIONS RELATED
TO JUDICIAL REVIEW AND JUDICIAL INDEPENDENCE
·
India: The
Indian Constitution provides for judicial review under Articles 32 and 226, allowing the Supreme Court and High Courts
to review the constitutionality of laws and government
actions. The Constitution also guarantees judicial independence under Articles 124-147, ensuring the judiciary's autonomy and impartiality.
·
USA: The US Constitution establishes the Supreme Court as the highest court
with the power of
judicial review. The principle of judicial independence is enshrined in the
Constitution, ensuring that judges
are free from political influence and can make decisions based on the law.
·
France: The French Constitution provides for judicial
review by the Constitutional Council
and the Conseil d'État. The Constitution also guarantees judicial
independence, ensuring that judges are independent and impartial in their decision-making.
FACTORS INFLUENCING JUDICIAL ACTIVISM
1. Role of the Judiciary within the Separation of Powers India:
In India, the judiciary, particularly the Supreme Court, plays a crucial
role in interpreting and enforcing the Constitution. The principle of separation of powers, though
not explicitly mentioned in the Indian
Constitution, is inherent
in its structure. The judiciary
acts as a check on the powers of the legislative and executive branches, ensuring
that their actions
are in line with constitutional principles.
The Indian Supreme Court has often used judicial activism to protect
fundamental rights and uphold the
rule of law. For example, in Maneka Gandhi v. Union of India (1978), the Court
expanded the scope of the right to life and personal liberty under Article 21
of the Constitution to include the right to
travel abroad. This decision demonstrated the Court's willingness to interpret
the Constitution broadly to protect individual rights.
USA:
In the United States, the judiciary, especially the Supreme Court, is
tasked with interpreting the Constitution
and reviewing the actions of the other branches of government. The principle of
checks and balances ensures that each branch of government has some measure
of influence over the others,
preventing any one branch from becoming too powerful.
The US Supreme Court has used judicial activism to uphold the
Constitution and protect individual rights. For example,
in Brown v. Board of Education (1954),
the Court struck down racial segregation in public schools, overturning the
"separate but equal" doctrine established in Plessy v. Ferguson (1896). This decision was a landmark
moment in the civil rights movement and demonstrated the Court's role in promoting equality
and justice.
France:
In France, the judiciary, particularly the Conseil d'État,
plays a crucial role in reviewing administrative actions and ensuring
the legality of government actions.
The principle of separation
of powers is enshrined in the French Constitution, with each branch of
government having distinct powers and responsibilities.
The French legal system allows for a certain degree of judicial activism
to protect individual rights and
ensure the proper functioning of the government. For example, in Conseil
d'État, Ass., 30 Oct. 1998, Syndicat
national des journalistes v. Minister of the Interior, the Conseil d'État
reviewed an administrative decision
to ban a journalist from entering France, highlighting its role in protecting freedom
of the press.
In conclusion, the role of the judiciary within the separation of powers
varies across India, the USA, and
France, but in each country, the judiciary plays a crucial role in upholding
the Constitution and protecting individual rights.
2. Influence of Public
Opinion, Legal Culture,
and Institutional Dynamics
India:
In India, public opinion and legal culture have played a significant role
in shaping judicial activism. The
judiciary, particularly the Supreme Court, has often responded to public
concerns and societal changes,
leading to a proactive approach in addressing social and legal issues. For
example, in the case of Vishaka v.
State of Rajasthan (1997), the Supreme Court laid down guidelines to prevent sexual
harassment of women
at the workplace, responding to a pressing
social issue.
Legal culture in India, with its emphasis on justice and equity, has also
influenced judicial activism. The
concept of public interest litigation (PIL), which allows citizens to seek
judicial intervention in matters of public interest, has been instrumental in promoting judicial activism in India. Institutional dynamics, such as the independence of the judiciary and the
availability of PIL, further contribute to judicial activism
by providing the judiciary with the
necessary tools to intervene in public matters.
USA:
In the United States, public opinion and legal culture have influenced
judicial activism, particularly in
cases involving civil rights, social justice, and individual liberties. While
the Supreme Court is intended to be a politically insulated
institution, public sentiment can still indirectly influence its decisions. For example, in cases like Obergefell v. Hodges (2015),
which legalized same-sex
marriage nationwide,
changing societal attitudes towards LGBTQ+ rights played a significant role in
shaping the Court's decision.
Legal culture in the USA, with its emphasis on the rule of law and
individual rights, has also influenced judicial activism. The living Constitution theory, which allows
for the interpretation of the Constitution in light of changing
societal values, has been used to justify judicial activism in cases involving
evolving legal principles.
France:
In France, public
opinion and legal
culture have a more limited
impact on judicial
activism compared to India and the USA. The French legal
system, with its emphasis on legal positivism and adherence to the letter of the law, places less
emphasis on public opinion and more on legal principles and precedent. However, public opinion can
still influence judicial decisions indirectly through political pressure and media scrutiny.
Legal culture in France, with its emphasis
on legal formalism
and the primacy of written
law, has also influenced
judicial activism. The principle of legal certainty, which requires judges to
apply the law as written,
limits the extent
to which judges
can engage in activism. However,
the role of the Conseil
d'État in reviewing administrative actions and ensuring legality
demonstrates a form of judicial activism
within the French legal system, albeit within the confines of legal positivism.
Institutional dynamics, such as the
role of the Conseil d'État, also shape judicial activism in France. The Conseil d'État acts as both an administrative
court and an advisory body to the government, giving it significant influence over administrative decisions.
COMPARATIVE ANALYSIS
Examination of Judicial Activism
in India, the USA, and France
India:
Judicial activism in India is a prominent
feature of the legal landscape, particularly demonstrated by the
Supreme Court's proactive approach in interpreting and enforcing the
Constitution. The Indian judiciary, and especially the Supreme Court,
has played a significant role in protecting fundamental rights
and promoting social justice. This activism is evident in the Court's
willingness to intervene in matters
of public interest through mechanisms like public interest litigation (PIL).
The Indian Supreme Court has often taken a broad and expansive view of its powers, using judicial activism
to fill gaps in legislation
and address systemic issues. For example, in the case of Vishaka v. State of Rajasthan
(1997), the Supreme
Court laid down guidelines to prevent sexual
harassment of women
at the workplace, demonstrating its commitment to addressing pressing
social issues.
USA:
In the USA, judicial activism is characterized by the Supreme Court's
active role in interpreting the Constitution
and reviewing the actions of the other branches of government. The Court has
used judicial activism to expand
civil liberties and address societal
issues, often reflecting changing values and norms in American society.
The US Supreme Court has been involved in landmark decisions that have
significantly shaped American
society, such as Brown v. Board of Education
(1954), which desegregated schools, and Roe
v. Wade (1973), which legalized abortion. These decisions demonstrate the
Court's willingness to engage in judicial activism
to protect individual rights and promote
social progress.
France:
In France, judicial activism is more limited compared to India and the
USA, reflecting the country's legal positivist tradition and emphasis
on adherence to written law. The French
legal system places
a strong emphasis on the
primacy of legislation, limiting the scope for judicial interpretation and activism.
However, the Conseil d'État plays a crucial role in reviewing
administrative actions, ensuring the legality of government actions.
While judicial activism
in France is more restrained compared to common
law jurisdictions, the Conseil d'État has been involved in significant
decisions that have protected individual rights and promoted
administrative justice.
While the nature and extent of judicial activism vary between India, the
USA, and France, all three countries'
judiciaries play a vital role in interpreting and applying the law to protect
rights and promote justice.
ANALYSIS OF KEY JUDICIAL TRENDS AND PATTERNS ACROSS JURISDICTIONS
India:
In India, key judicial trends include the expansion of fundamental
rights, the use of public interest litigation
(PIL) to address social issues, and the assertion of judicial independence. The
Indian judiciary, particularly the
Supreme Court, has played a significant role in expanding the scope of fundamental rights guaranteed by the
Constitution. The Court has also used PIL as a tool to address systemic
issues and ensure government accountability.
Additionally, the judiciary in India has asserted
its independence, often taking a proactive approach in interpreting and enforcing the Constitution.
USA:
In the USA, key judicial trends include the protection of civil
liberties, the interpretation of the Constitution in light of changing societal
values, and the role of the Supreme
Court as a check on the other
branches of government. The US Supreme
Court has been involved in landmark decisions
that have expanded civil
liberties and addressed pressing social issues. The Court's interpretation of
the Constitution has evolved over
time to reflect changing societal values, and it has served as a check on the legislative and executive branches
of government.
France:
In France, key judicial
trends include the emphasis on legality
and adherence to written law, the
role of the Conseil d'État in
reviewing administrative actions, and the balance between individual rights and government authority. The French legal system places
a strong emphasis
on legal positivism and adherence to the
letter of the law. The Conseil d'État plays a crucial role in reviewing
administrative actions
for legality, ensuring that government actions comply
with the law. Judicial activism
in France is more restrained compared to common law jurisdictions, reflecting the country's legal
tradition and institutional framework.
Overall, these key judicial trends and patterns highlight the diverse approaches
to judicial activism and
interpretation of the law across India, the USA, and France. Each
jurisdiction's legal tradition, societal
values, and institutional framework shape the role of the judiciary and influence the outcomes of judicial decisions.
CHALLENGES AND
CRITICISMS OF JUDICIAL ACTIVISM
1. Overstepping Constitutional Role: One of the primary
criticisms of judicial
activism is that it can lead to judges overstepping their constitutional role and encroaching on the powers
of the legislative and executive
branches of government. Critics
argue that judges,
who are unelected, should not have the power to make or influence policy decisions, as this is the prerogative of elected representatives. This criticism is based on the idea that judicial activism can
undermine the principle of separation of powers,
which is essential for a functioning democracy.
2. Judicial Overreach: Another criticism of
judicial activism is that it can lead to judicial overreach, where courts make decisions that are not
based on the law or the Constitution but on personal or political beliefs. Critics argue that this can undermine the
rule of law and democratic principles, as it
allows judges to impose their own values and preferences on society. Judicial
overreach can also lead to
uncertainty in the law, as decisions may not be based on established legal
principles but on the subjective views of judges.
3. Undermining Democratic Principles: Critics of
judicial activism argue that it can undermine
democratic principles by allowing unelected
judges to make decisions that should be made by elected representatives. They argue that decisions on
important policy issues should be made through
the democratic process,
where elected representatives are accountable to the people.
Judicial activism, they argue, bypasses
this process and allows judges to impose
their own views on society.
4. Lack of Accountability: Another
criticism of judicial activism is that it can lead to a lack of accountability, as judges are not directly
accountable to the people. Unlike elected representatives, who can be voted out of office if their
decisions are unpopular, judges serve for life and cannot be easily removed. This lack of
accountability, critics argue, can lead to decisions that are out of step with the wishes
of the majority of the population.
RECOMMENDATIONS FOR ENHANCING JUDICIAL
INDEPENDENCE AND STRENGTHENING DEMOCRATIC GOVERNANCE
1. Transparent and Merit-Based Appointment Process: Ensure that judges
are appointed through
a transparent and merit-based process. This can help prevent
political interference in the
judiciary and ensure that judges
are selected based on their qualifications and experience.
2. Adequate Resources and Support: Provide
judges with the necessary resources and support to carry out their duties
effectively. This includes adequate funding
for the judiciary, training programs
for judges, and support staff to assist
them in their work.
3. Maintaining Checks and Balances: Maintain a system of checks and balances to prevent any one branch of government from becoming too
powerful. This can help ensure that the judiciary, the legislature, and the executive all play their respective roles in a democratic society.
4. Respect for Judicial Independence: Uphold the
principle of judicial independence and respect
the decisions of the judiciary. This can help ensure that judges are able to make decisions based on the law and the Constitution without fear of reprisal.
5. Promoting Accountability: Ensure that
judges are held accountable for their decisions through appropriate mechanisms. This can help maintain public
trust in the judiciary and ensure that judges act in the best interests
of society.
6. Continued Professional Development: Provide judges with opportunities for continued professional development to keep them abreast of legal developments and best practices. This can help ensure that judges
are able to perform their duties effectively and impartially.
CONCLUSION:
This study has explored the phenomenon of judicial activism in the legal
systems of India, the USA, and France,
shedding light on its implications for public policy,
legislative debates, and social change.
Judicial activism, characterized by the proactive role of the judiciary in interpreting laws and shaping
policies, has been instrumental in advancing justice and safeguarding
rights in these countries. However, it has also sparked debates
and criticisms regarding
its limits and implications for democratic
governance.
Key Findings:
•
India: The Supreme Court's proactive approach,
particularly through public interest litigation, has led to significant reforms in areas such as environmental
protection, human rights, and government accountability.
However, criticisms of judicial overreach and the judiciary's role in
policymaking persist.
•
USA: The US Supreme Court has played a pivotal role in
shaping civil rights, privacy laws, and social policies
through landmark decisions. While judicial activism
has been instrumental in advancing civil
liberties, it has also sparked debates over the Court's legitimacy and its
impact on democratic processes.
• France: Judicial
activism in France,
though more limited,
has influenced administrative actions and legal principles. The Conseil d'État's
role in reviewing administrative decisions has contributed to legal developments, albeit
within the framework
of legal positivism and adherence to written law.
BIBLIOGRAPHY:
BOOKS
1. Dr. D.D. Basu – Comparative constitutional law 3rd Edition
WEBSITE
1.
1.https://www.researchgate.net/profile/Nishtha- Jaswal/publication/345576264_Judicial_Activism_in_India/links/5fa8d611a6fdcc06242019
e6/Judicial-Activism-in-India.pdf
2.
https://constitution.org/2-LawRev/kmiec/judicial_activism.htm
3.
Keenan D. Kmiec,
The Origin and Current Meanings
of “Judicial Activism,” 92 CALIFORNIA LAW REVIEW 1441 (2004).
4.
Marbury v. Madison
| Background, Summary,
& Significance | Britannica, (2024),
https://www.britannica.com/event/Marbury-v-Madison (last visited Mar 3, 2024).
6.
HAZEL GENN, JUDGING CIVIL JUSTICE (1 ed. 2009),
https://www.cambridge.org/core/product/identifier/9781139192378/type/book.
Article Information
COMPARATIVE ANALYSIS OF JUDICIAL ACTIVISM: INDIA, USA, AND FRANCE BY: SHEETAL NIKAM
Authors: SHEETAL NIKAM
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/24
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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