Table of Contents
- According to Doctrine of Separation of Power , the Judiciary cannot formulate policies or make laws. It’s function is just to ensure that the laws and executive actions do not violate the Constitution
- Judicial Activism implies going beyond the normal constraints applied to jurists & jurists start to make any legislation or policies
Reasons of Judicial Activism
- Near collapse of responsible government when the Legislature and Executive fail to discharge their functions => judiciary has to become savior of last resort.
- Judicial Enthusiasm : judges like to participate in the social reforms
- Legislative Vacuum – There may be certain areas which have not been legislated upon.
- Constitution of India has itself adopted certain provisions which gives judiciary enough scope to legislate or play active role.
Arguments against Judicial Activism
- Accountability : Judges evolve policies but they are not accountable to people
- Ideological : Goes against the Doctrine of Separation of Power.
- Epistemic : Judges don’t have enough knowledge on specialized matters.
- Management : By increasing Locus Standi , they are increasing Litigation work load
- It can hurt the Federal Structure, when Judges do not adhere to Constitutional Principles while adjudicating complex issues.
Supreme Court itself observed in the Aravali Gold Club Case, if the two organs of the State fail to perform their functions properly, it is for the people to provide a corrective. The remedy is not in the judiciary taking over the legislative or executive functions.
History of Judicial Activism
|1950s & 60s
|– Courts were conservative except for few cases on Right to Property
– On personal liberty, court was highly conservative . Eg in AK Gopalan case (1950) , Supreme Court ruled that personal liberties can be taken away by enacting law .
|– Maneka Gandhi case => if we read Article 21 in conjugation with Article 14 & 19, it is as good as Due Process of Law
– Coming to due process clause through the judicial interpretation is creating the problem of Judicial Activism
Judgments of the Supreme Court showing Judicial Activism
1 . Right to life (Maneka Gandhi case) ,1978
- Right to Life under Article 21 is not merely right to physical existence, but to a life of some quality and dignity.
2. Hussainara Khatoon vs State of Bihar (1979)
- Article 21 includes Right to Speedy Trial
- Under-trials must be freed by following certain process
3. SP Gupta Case (1982)
- Supreme Court expanded the Locus Standii
- Note – In Anglo-Saxon Legal system, only aggrieved person can come to court of law but third person can’t approach (with certain exceptions)
- In this case, Supreme Court expanded the Locus Standii. Supreme Court declared that any citizen has standing if
- He approach court in case where rights of all citizens are getting violated
- Can become representative of poor & disadvantaged persons who can’t approach Court of law (this is known as Public Interest Litigation Jurisprudence)
4. In case of CBI’s autonomy / Vineet Narayan Case
- It asked the Government, to inform it about the steps it was going to take to enact a law for ensuring CBI’s autonomy.
5. In Vishaka (1997) case
- Supreme Court was dealing with a Writ Petition for enforcement of fundamental rights of working women under Articles 14, 19(1)(g) (the right to practice any profession etc) and Article 21. There was no national legislation, so Supreme Court laid down norms & guidelines, giving them binding force.
6. In Prakash Singh (2007)
- Court felt compelled to give seven directions with regard to Police Reforms
- Above are the cases , where Judicial Activism can be justified. But in garb of Judicial Activism , sometimes Higher Courts have gone too far resulting in Judicial Overreach .
- Judicial Overreach refers to an extreme form of judicial activism where Judiciary forays into domain of legislature & executive with intention of disrupting the balance of powers between executive, legislature and judiciary in its favour.
- Examples of Judicial Overreach
- Supreme Court judgement regarding ban of Alcohol Sale within 500 m radius from National & State Highways.
- Madras High Court imposing a dress code in temples in Tamil Nadu
- Banning on traditional practices like Jalikattu,
- Total ban on diesel taxis in Delhi at the cost of affecting the livelihood of certain section of the population.
- Chandigarh High Court ordered, What Rate of tolls should be charged at a toll plaza in Gurgaon.
- Iron ore mining has been banned in Karnataka and Goa.
- Judicial Activism and Judicial Restraint are two alternative judicial philosophies in United States.
- Those who subscribe to Judicial Restraint argue that the role of Judges should be scrupulously limited. Their job is merely to say what the law is .
Examples of self restraint & not curtailing other’s power
- Madhu Holmagi v. Union of India : one Advocate filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty . Petitioner contended that court must have to scrutinize the all documents . Court dismissed the petition because question raised by the petitioner is a question of policy decision, which is to be decided by Executive