JUDICIAL ACTIVISM: A NECESSARY EVIL OR A THREAT TO SEPARATION OF POWERS? BY - SHREYA SHARMA
JUDICIAL ACTIVISM: A NECESSARY EVIL OR A THREAT TO
SEPARATION OF POWERS?
AUTHORED
BY - SHREYA
SHARMA
INTRODUCTION
"Courts have been
proactive and remedial in numerous instances. This is why, the sentiments of
our people are very much in favor to them. However, the very concept of
judicial overreach and judicial activism should be clearly delineated.”
This is in line with Lord
Hewart, CJ[1]:
“It is of fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done.” This phenomenon, which
has been dubbed by some ‘judicial activism’ is the one which finds expression
in decisions of certain class of the judgement – the “activist” judges.
Democracy has deepened in recent years, with the judiciary stepping in to
situations, where clear executive discretion is being abused or the corruption
and other vices have been casually approached by law makers, where the letter
of the law is somewhat bent but the spirit is followed.
The only thing which one
can say in the outside sounds of judicial activism[2]
is just the temporal necessity of overcoming the excessive progressive obstacles
of retarded order. Courts are convinced that through judicial activism,
democracy is undermined since it places non-elected judges in a position to
exercise judgement in matters that should be left for the decision of elected
officials.[3]
They opine that this
approach holds the risk of court overreaching, where courts not only apply the
law as it is supposed to be done, but also hand down judgment of their own. ‘Hussainara
Khatoon v. State of Bihar[4]’
emerged as the first case to extensively use social action litigation to target
the courts. The phenomenon of judicial activism is often focally retargeted to
have commenced with public interest litigations and followed up with amendment
of the narrows definition of standing or locus standi.
A
Necessary Evil or a Threat to Separation of Powers?
Institutional delay or
injustice is often what prevents people from administering justice and hence
judicial activism is regarded as an evil for good. For example, Indian courts
have played a pioneering role in the areas of social justice and public
interest litigation by taking action when the state could not, especially on
issues like human rights, corruption and environmental degradation. Case which
highlights Judicial Activism is “Maneka Gandhi v. Union of India”[5]
where the Court regarded the right to personal liberty as contained in the
Indian Constitution which was also citizenship should include the right to
settle outside the country. Such Energy prevents any branch of the government
from running unchecked and serves as a pressure release system for democracy.
The intervention of the court in this case immediately helps to maintain the
public faith in the constitutional governance whenever the political bodies fail
to help the people’s cause. Judicial activism has its benefits which includes
the protection of underrepresented minorities against possible excesses of
people rule or populist legislation in young democracies. The “Kesavananda
Bharati case”[6]
has been the foundation to check the excesses of the Parliament’s power of
amendment. The decision retained the essential values of democracy, secularism
and rule of law principles by preventing the parliament from having carte
blanche over any amended provisions of the constitution.
To my mind, the decision
can be categorized as a form of judicial activism that is crucial in the
preservation of democracy through the rule of law. Here the rationales were to
safeguard the principles of constitutionalism allowing no government to power
as to change its fundamental constituent for any material convenience. It
illustrated the self-activating judicial style, for instance rather than
bettering coordinator of case specific solutions. Such kind of action ensures
that the equilibrium of power within the democratic structure is maintained,
and people feel confident that their basic freedoms are safe from excesses of
short-term political sentiments.
A notable example of this
is the “NALSA case[7]”
which accorded transgender status the right to self identification as a
gender. In meeting the gap left by the legislature and executive branches, the
court recognized legal gender for transgendered people and affirmed the need
for the protection of what were once considered marginal groups. In this
regard, the NALSA judgment, in my view, is an instance of the engaging of the
legal authority in the process of change in society. In this instance, judicial
activism centered on the historical evolution of the existing legal order and
acquiring legislation in regard to equality and dignity rather than the
introduction of new laws.
This lack of
representation explains why this type of judicial intervention is sometimes
necessary as reforms or legislative measures progress slowly or the minority
stands to be sidelined. The directive also proved instrumental in facilitating
cultural inclusion and the fight for rights by transgender individuals in
Indian society.
There are reasons that may
warrant the use of judicial activism but it is clear that when in excess, the
concept of the checks and balances on the three branches of government is at
risk.
Judicial activism has its
share of opinions towards waging war on the democratic controlled principles of
accountability. Courts, in contrast to legislatures, are not representational
bodies. Where a court makes new laws or pursues policy solutions without a
parliamentary endorsement it is likely to go beyond the Judiciary’s territory.
An example of this is the “National Judicial nominations Commission[8]”
case of judicial overreaching when the judiciary overruled constitutional
amendment passed by the Indian Parliament aiming to bring about reform in
Judicial appointments. It is argued that these rulings not only break the
system of checks and balances but also tend to support judicial dictatorship.
Judicial overreach has
been documented in a few notable cases, apart from other instances of judicial
overreach – which cases include “Liquor Ban[9],”
“Arun Gopal v. Union of India[10]”
and “M.C. Mehta v. Union of India[11].”
With this line of thought, it is suggested that there have been instances where
the emias has seeped into what can be regarded as political decision making
which is the prerogative of other arms of government. Although the aim of the “liquor
ban” was aimed at reducing the number of vehicle accidents related with
drunk driving, such an order advanced unreasonable restrictions on the business
of state owned enterprises which many thought should rather be left to the
control of the state level where issues regarding alcohol are usually dealt
with. People were also concerned with the movement in the “Arun Gopal”
case that restrained fireworks on Diwali as doing so would violate customs and
would not be backed by legal requirements. In the same vein, the “M.C.
Mehta” case showcased how the court was directly involved in economic
regulation and industrial policy practices, which are by far the domain of the
administratiors.
In relation to my own
experiences, even if the stated opinions of the court were noble in those
instances, I sometimes wondered about the role of the courts and what the
control mechanisms are. When performing such acts, such undertakings are likely
to compromise the independence of the executive and the encroaching of
democratic governance.
Because judicial activism
has often been needed in bridging the shortcomings of either the legislature or
the executive, excess and overreach in reach may cause the courts to issue
decisions which are detached from the practical, contextual and social
reasonable man. This court has to be scrupulous enough not to overstep its
constitutional mandate while preserving the human rights envisioned by that
Constitution.
CONCLUSION
Judicial activism, as I
have stated, has been without a doubt important when it comes to justice;
especially in cases when other branches of government have failed to perform
their duties. Numerous rulings demonstrate how the court has moved outside the
box of legal interpretation to fulfil even political goals and the ideals of
democracy and fundamental rights. Judicial activism in these cases preserves
the rights embodied in the Constitution even under political apathy and remains
a positive force in the pursuit of social equality.
I do appreciate the risks
taken by the judges but in relation to judicial tyranny, that is assuming too
much control over the legislative and governance processes. Although in many
instances the judicial system was aimed at addressing major social and
ecological concerns, some of its decisions raised relevant issues concerning
the division of powers. It is these decisions that remind the other branches of
government that although they can and will defend the Constitution.
To me, this very thin
margin between political tolerance and judicial activism, is of utmost
importance. It is particularly so in order not to make the courts another
politically neutral and non-elected body which makes decisions that are the
province of popular elected politicians.
Striking this balance
contributes to sustenance of the public confidence and belief in the judicial
independence while still honoring the ideals of separation of powers.
[1] “Simon James & Chantal Stebbings, Tax:
A Multidisciplinary Approach (1997).”
[2] “K.D. Kmiec, The
Origin and Current Meanings of “Judicial Activism”, 92 Calif. L. Rev.
1441, 1441–77 (2004), https://doi.org/10.2307/3481421”
[3]“ M.M. Semwal & S.
Khosla, Judicial Activism, 69 Indian J. Pol. Sci. 113, 113–126
(2008), http://www.jstor.org/stable/41856396”
[4] “Hussainara Khatoon v.
State of Bihar A.I.R. 1979 S.C. 1369.”
[5] “Maneka Gandhi v. Union
of India, A.I.R. 1978 S.C. 597”
[6] “Kesavananda Bharati v.
State of Kerala, A.I.R. 1973 S.C. 1461”
[7] “Nat’l Legal Servs.
Auth. v. Union of India, (2014) 5 S.C.C. 438”
[8] “Supreme Court
Advocates-on-Record Ass’n v. Union of India, (2016) 5 S.C.C. 1”
[9] “State of Tamil Nadu v.
K. Balu, (2017) 2 S.C.C. 281”
[10] “Arun Gopal v. Union of India,
W.P. (C) No. 728/2015, Supreme Court of India (Oct. 9, 2017).”
[11] “M.C. Mehta v. Union of India,
(2018) 3 S.C.C. 199”