Open Access Research Article
ACKNOWLEDGING THE TRENDS OF JUDICIAL ACTIVISM IN INDIAN FRAMEWORK
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Article Details
ACKNOWLEDGING
THE TRENDS OF JUDICIAL ACTIVISM IN INDIAN FRAMEWORK
Author:
1.
Swarnika Tirkey
Faculty of
Law, Pt. Ravishankar Shukla University, Raipur-492010, Chhattisgarh
Email: swarnikaa.9@gmail.com
2.
Hiten Joshi
Faculty of
Law, B.M. Law college, Jodhpur-342008, Rajasthan
Email: joshi.hiten60@gmail.com
3.
Rahul Sharma
B.A.LLB
(HONS.), LLM
Email: rsshubham.sharma6@gmail.com
Abstract
"Judicial Activism implies legal
propensity or tendency be it conscious or unconscious to accomplish appropriate
harmony between clashing social values through change in existing laws and
regulation or through making new laws and regulation that did not previously
exists"
Judicial activism is known as the
political role played by the judiciary it is related to the problems and
processes of political development of a country. It is a way of exercising
judicial powers which seek fundamental re-codification of power relations among
dominant institutions of the state manned by members of the ruling class. The
justification of judicial activism is sought in the degenerating acts of the
responsible government.
In the radiance of the given
statement, the article attempts to make sense of the importance and meaning of
Judicial Activism and its part in safeguarding the privileges of common man.
Keywords
Judiciary, Public Interest
Litigation, checks and balances, overreach, arbitrary powers, constitutional
amendments
Introduction
Arthur Schlesinger Jr. introduced the
term "Judicial Activism" in a January 1947 Fortune magazine article
titled "The Supreme Court: 1947"[1].
The Black law dictionary[2]
described it as “the judicial philosophy which motivate charges to depart from
traditional precedents in favour of progressive and new social policies”. Judicial
activism are the court's decisions based on judges' personal wisdom which does
not go well rigidly within the text of the state you passed by the legislative
body and use the powers bestowed as the judicial power broadly to facilitate
remedies to the white social injustices and for ensuring proper justice in the
society.
India has a recent history of
judicial activism, beginning after the Emergency in India which saw endeavors
by the public authority to control the judiciary. "Suo moto"
cognizance permits the courts to take up such cases all alone on its own. The
pattern has been upheld as well as reprimanded. The introduction of public
interest litigation by Equity V. R. Krishna Iyer and then its gradual
development, further extended its scope. Ongoing examples cited can incorporate
the order to Delhi Government to switch the Auto rikshaw over completely to
CNG, a move accepted to have decreased Delhi's past intense exhaust smog cloud
issue.
Origin and
development
There are two theories associated
with the origin of judicial activism: they are the theory of vacuum filling and
the theory of social want.
The theory of vacuum filling
A vacuum suction is created due to
in-activeness of one organ of the government. This may disturb the democratic
setup of the democracy. Hence other organs should expand their horizons and
cover up the vacuum. Therefore, hyper activism of the judiciary is a result of
filling up the vacuum or void created by non-activism of executive and the
legislature. In-activity may be in the form of incompetence, negligence,
corruption, indiscipline, or lack of character.
The theory of social want
The legislation was incapable to cope
up with the existing situations and problems in the country which give rise to
a social want or need in the country. Legislation failed to pay a pathway;
therefore, the judiciary had to step in forward and took on its own shoulders
the problems of the oppressed and paved a way to solve them. The existing
legislations were of little help in this. So, the only way left was to give
progressive and non-conventional interpretations of the existing laws for the
greater good.
The roots of origin and development
of judicial activism can be traced back in the English as well as the American
concept. As per the English concepts it arises its roots from equity and
natural just natural rights principles. And as per the American concept it
derives its origin from the concept of judicial review.
In America; initially only the
doctrine of due processes was applied to the substantive laws but gradually
procedural laws were also included in its purview. 1898 to 1937 American
Supreme Court declared 400 state laws and 50 Congressional enactments as
unconstitutional.
The first landmark judgment was of Brown
vs. Board Of Education of Topeka[3]
through which all laws segregating the negroes from American were ruled out in
America.
In India; judicial activism is
considered to be a product devised by the judiciary. The judiciary begins to
nullify the separation of power specified in the constitution when acting under
the scope of judicial activism. Judicial activism is not backed by the
constitution when it tries to step over the line of power given to it.
Dissolved separation of power would result in uncertainty of the law and create
chaos in the society. A clear balance has to be maintained by the judicial disciplines
in order to maintain proper functioning of the society.
In The
Constitution
Though the text clearly expressing
the concept of judicial activism is not present in the constitution of India
but the same derived its power from several articles of the constitution. Article
13 describes the power of judicial review under the power of judicial review it
can examine the constitutionality of the legislative and the executive bodies
of the country. Article 32 describes the remedies for ends enforcement of
rights conferred under part 3 of the constitution.
Article 141 suggests that the power
of the Supreme Court is to declare and not enact the law but however, in the
course of interpretation they are allowed to modify the law.
Article 142 gives the liberty to the
Supreme Court to pass any necessary judgments required to do complete justice
in any case.
Judicial Developments
In 1893 justice Mahmood of Allahabad
High court sowed the seeds of judicial activism in India. The main question
that arose in this case was whether the court could decide the case of an under
trial who cannot afford a lawyer to decide his case by nearly looking at his
papers?
Justice Mahmood in his dissenting
judgment held that what is more important is being heard and not being read.
The case will be heard only when someone speaks.[4]
This was the widest possible interpretation of the relevant applicable law and
laid the foundation stone of activism in India.
The case of Indira Gandhi vs. Raj
Narain[5]
is another example of defining moments of judicial activism in the country.
MS Gandhi changed the laws relating
to election and amended the constitution in favour of protecting her seat of
the prime minister. Clause 4 was added in article 329A by 39th amendment
preventing judicial review of election to the post of prime minister. This was
later struck down by the Supreme Court. Looking at the access of emergency of
1975 and its aftermath constituted to be the defining moments in the sphere of
judicial activism in India.
Before 1980 only aggrieved could
personally approach the courts and seek remedy for their grievances.
S.P. Gupta vs. Union of India[6] (also known as the judges’ transfer
case). According to justice Bhagwati the traditional rule was of ancient
vintage and arose during an era when private law dominated. He observed that
there is an urgent need to innovate new methods and devise new strategies for
the purpose of providing access to the judiciary for large masses of people,
who are devised of their human rights and to whom freedom and liberty have no
meaning.
There are several other instances
where the judiciary took on its role to safeguard the essence of the
constitution and acted actively.
Pro environmental
Union Carbide Corporation vs Union Of
India[7] (Bhopal gas tragedy)
It was decided by the Supreme Court
that the right to a healthy environment is a fundamental right under article
21. It helped in the inclusion of pro-environmental steps in the constitution.
Gender jurisprudence
Delhi democratic working women's
forum vs. union of India[8] (1995).
The guidelines to prevent sexual
harassment of women at workplace were given in this case.
Gaurav Jain vs. union of India[9]
The guidelines for protection of
women prostitutes and rehabilitation of their children were awarded in this
case.
Upliftment of lower classes
State of Kerala vs. N.M. Thomas[10]
The Supreme Court conceded a liberal
implementation of article 46 in relation to article 15 and 16, particularly in
respect of the special provisions for Scheduled Caste and Scheduled Tribes.
Recent judgments where the judges
have encroached the legislation are:
Rajesh Sharma vs. State of Uttar
Pradesh (2017)[11]
In this case section 498 of IPC was
amended. It was made necessary that the complaints under this provision will
need to be sent to a family welfare committee constituted by district legal
service authority.
Arjun Gopal vs union of India (2017)[12]
The Supreme Court ordered that the
use of non green crackers were prohibited and the timings were fixed for
bursting of Diwali fireworks.
MC Mehta vs. union of India (2018)[13]
The rule under article 115 (21) of
Central motor vehicle rules 1989 was annulled by the courts. It declared that
only B6 vehicles can be sold after 30th March 2020 and complete ban on the B4
vehicles order to curb the pollution rates.
Subhash Kashinath Mahajan vs. state
of Maharashtra (2018)[14]
Section 18 of the Scheduled caste and
Scheduled tribe prevention of atrocities act 1989 was annulled. Hence the law
declared that section 438 of the code can be applied to a person committing
offence under the act.
Merits and
Demerits of judicial activism
Talking about the merits and demerits
of the judicial activism following could be termed as the positive points of
the same. Judicial activism shows a system of check and balance to the other
branches of the government. Judges can use their personal wisdom to provide a
balance and stability to the society. Legislature may get struck for majority
reasons and order being passed in respected houses hence they take time to make
the loss but judiciary can provide a speedy process in making laws. Public
power can many a times cause more harm to society so judiciary helps in
checking the misuse of public power.
However, this system of judicial
activism clearly has its own draw-backs. Such as, it violates the line drawn by
the constitution as judges can override any existing loss. Judgment may be influenced
by personal or selfish motives which can further harm the public at large. The
trust of the common man upon the quality, integrity and efficiency of other two
government institutions which are the legislature and executive will erode due
to repeated influence of the coats. The courts limit the functioning of other
organs of the government.
Conclusion
Arun Jaitley and eminent lawyer of
the country and the former finance minister of India made his remark in wake of
some recent judgments such as the court's verdict on section 66A of the IT act
and the national anthem issue.
In his opinion the Supreme Court
first struck down section 66A of the IT act. But later when people wrote
comments or roadblocks against the judges the court started discussing measures
to restrain the social media.
Initially courts allowed the Jehovah
community not to sing the national anthem in 1986. Later a letter by the former
chief justice of India was treated as a petition and singing the National
anthem was considered a part of fundamental duties of the citizens of India.
To such issues, he remarked that “I
think there is something which is needed. Parliament needs a vision for a
long-term, governance needs that vision, politicians need an element of
statesmanship; and the judiciary needs an unusual level of statesmanship, which
is not influenced by the events of the day”[15]
[1] "The Origin and Current
Meanings of 'Judicial Activism'". Cal. L. Rev. 92 (5): 1441–1477.
[2] as quoted in "Takings Clause
Jurisprudence: Muddled, Perhaps; Judicial Activism, No", Geo. JL &
Pub. Pol'y, 2002
[3] 347 U.S. 483 (1954)
[4]
Ref. to the Article, When seed for Judicial
Activism was sowed, ?The Hindustan Times? (New Delhi ) dated 01-04-96, p.9
[5] 1975 AIR 2299; 1976 (2) SCR
347
[6] AIR 1982 SC 149
[7] 1990 AIR 273, 1989 SCC (2)
540
[8] 1995 SCC (1) 14, JT 1994 (7)
183
[9] AIR 1997 SC 3021
[10] AIR1976SC 490
[11] 2017 SCC 821
[12] 2018 SCC OnLine SC 2118
[13] Writ Petition (Civil) No.
13381/1984 | 28-08-2018
[14] AIR 2018 SC 1498
[15]
Ref. to the Article, National Law Day: Judicial
activism based on flawed premise, says Arun Jaitley
,
?The Indian Express dated 26-11-17
Article Information
ACKNOWLEDGING THE TRENDS OF JUDICIAL ACTIVISM IN INDIAN FRAMEWORK
Authors: Swarnika Tirkey, Hiten Joshi, Rahul Sharma
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/11
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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