This Article is written by Anurag Choudhary student of Delhi University.
The doctrine of judicial activism was introduced in the USA in 1947 by Arthur Schlesinger Jr. However, the foundation of the same was laid in India in the 1970s by the Justice V.R Krishna Reddy, Justice P.N Bhagwati among many others. It is a philosophy which encourages the judges and the judiciary to move from conventional judicial practices to promoting welfare in the society by supervising and rather directing the social policies effectuated by the legislature. It mandates a sort of social engineering whereby judiciary assume a proactive role and intrude the law-making process. There have been several instances till now where the Supreme Court (SC) and the High Court’s (HC) have become an activist and suggested/instructed the government and authorities on various issues in keeping with the above doctrine. For instance, the recent suspension of the farm laws by the SC, taking steps to reform the administration of the Board for the control of cricket in India (BCCI), extending the relief on NPAs in the loan moratorium case are some cases of judicial activism. Furthermore, the very famous concept of Public Interest Litigation (PIL) which relaxed the traditional rule of ‘locus stand’ (only the aggrieved person can move to the court) is an evolute of judicial activism.
Often, judicial activism is confused with judicial review; though they seem similar but there exists a difference between the two. The former is that mode of the latter wherein the judges not just check the constitutional validity of the laws effectuated but also include their personal preferences in choosing one over the other. Thus, the concept of judicial activism is immanent in judicial review.
RATIONALE FOR JUDICIAL ACTIVISM
Several justifications and explanations have been posited in favour of the invocation of this doctrine, most of which is aimed towards the lethargy and laxity of the other organs of the government.
- Since the executive and the legislature are functioning irresponsibly and failing to fulfil their duties, it has become important for the judiciary to step in to restore and maintain peoples’ faith in law and the Constitution.
- The citizens also look up to the judiciary for the settlement of their dispute, restoration of their legal and fundamental rights, redressal of their grievances especially against the government and/or its agencies. Thus, it becomes important to bring in such cases under its purview.
- Also, there are certain areas where the legislature has not constituted any law. Thus, it becomes incumbent upon the judiciary to legislate and cater to the needs of the people. Thus, judicial activism compensates for the legislative vacuum. For instance, in 1997, SC instituted the ‘Vishakha Guidelines’ which aimed to protect women from sexual harassment at their workplace. It was an outcome of the legislatures’ inability to deal with the issue.
- The partisan approach and high handedness of the administration make it necessary for the judiciary to intervene upon a PIL and give directions to ensuring the cent percent compliance of constitutional and other legal provisions.
- At times, judges too feel obliged to participate in the social reformation process by making changes in the policy according to what they deem fit. Thus, judicial enthusiasm catalyses judicial activism.
- Some ancillary reasons include the growing consciousness among the laity for their social, legal, constitutional rights, well-being, establishment of various civil rights group etc. which also accounts for judicial activism.
SLIPPERY SLOPE: JUDICIAL OVERREACH
It is often argued that judicial activism has brought about several positive changes in the society and has protected the rights of the individual and promoted social justice. However, one slippery slope which has concerned the experts is judicial overreach. It is an extreme form of judicial activism whereby the judiciary oversteps its jurisdiction and makes arbitrary and impractical intrusion in the executive or the legislative domain, thereby usurping its power; as such it is undesirable for democracy as it disrupts the finely balanced sharing of power structure enjoined by the constitution. There have been many such instances of judicial overreach in the past which have raised eyebrows. This includes:
- The banning of firecrackers by the SC, was called an act of judicial overreach by the vice-president of India at a conference in 2020.
- National green tribunal ordering a ban on plying of 15-year-old petrol and 10-year-old diesel vehicle in Delhi and the Supreme court ordering to impound such vehicles, though neither of the two have legislative powers, is an act of judicial overreach.
- In 2015, Allahabad High Court passed an order stating that the children of public servants should only be enrolled in government schools.
- Denying the executive to participate in the appointment process of judges by instituting collegiums (some call it as extra-constitutional).
- Striking down the National Judicial Appointments Commission Act 2014 (NJAC).
- Ordering for censorship of certain scenes in the Jolly LLB 2 movie which falls outside the judicial purview.
- The recent moratorium on the farm bills 2020 has been called by some experts as an unwarranted intrusion in the functioning of the executive.
Although the views are subjective and are open to refutation/criticism, but it undeniably raises concern in the minds of the laity. Thus, there is a very thin line between judicial activism as a boon and judicial overreach as a bane for democracy.
CONCERNS OVER JUDICIAL ACTIVISM AND ITS OVERREACH:
The indiscriminate exercise of judicial activism (a privilege) and the judicial overreach which is its obvious fallout has given rise to trepidations and concerns regarding several facets of the working of the judiciary. The way judiciary has wielded its powers in certain cases cannot be treated as the normal judicial adjudication and is in no way within the bounds of the aforesaid doctrine. Some of the major concerns/trepidations are:
- Affecting the separation of power – the constitution has categorically laid down the division of power among various organs of the government and have demarcated their boundary. Also, the power given to the SC under article 142 is extraordinary and a regular and indiscriminate usage of effectuating judicial decrees in the wake of judicial activism would diminish its value and disrupt the balance of power.
- Unaware of the working of the other organs – it is often said that judiciary does not keep in mind the hurdles faced by the legislature and the executive before passing any order, as the latter are answerable to public while the former is not. Rather conversely, they have the power of ‘contempt of court’ which immunes them from public criticism and scrutiny, unlike the latter. Thus, lack of accountability of judiciary is another major concern.
- Losing credibility and legitimation – frequent intrusion in the name of judicial activism would reduce the sanctity of the verdict and the decrees of the court. Moreover, if the executive bypasses/ignores certain orders it would be deteriorate the symbolic authority of the court of law.
- Lack of expertise – many a times orders issues pertain to those areas where the judges do not have enough expertise. Such as decrees about economy, health, public administration etc.
- Additionally, the courts are already overburdened by civil and criminal suits. Thus, the cases through PIL and other modes of judicial activism would only aggravate the crisis.
JUDICIAL RESTRAINT: AN ALTERNATIVE PHILOSOPHY
Judicial restraint, as opposed to judicial activism, advocate that the role of the judges and judiciary should be strictly demarcated to only the interpretation of existing laws and adjudication of cases thereby. It believes that policy and law-making should be left to executive and legislature as they are the democratically elected body.
In keeping with this, the Supreme Court has also enjoined on various occasions that the courts should exercise judicial restraint and refrain from leading/dictating the legislature. Moreover, they should not harbour the aspirations of becoming a ‘super-legislature.’ The court said that “the judges must know their limits and not try to run the government”. In the name of judicial activism, “judicial adventurism” cannot be justified.
Also, in order to uphold the symbolic authority and independence of the court judicial restraint must necessarily be exercised. Thus, through its dictum the Supreme court has clearly highlighted the importance of practising judicial restraint and the caveats of judicial over-activism.
Judicial activism is certainly a boon for the society in so far as it protects the rights of the citizens and promotes well-being. Additionally, judicial review, a form of the same, keeps the legislature in check. However, it should not be a regular phenomenon and should not result in judicial overreach as it would be counter-productive and destructive for other organs of the government and autonomous institutions of democracy. Transcending the line of power would nullify the concept of power sharing. Thus, judicial discipline and abstention from over-activism is necessary to maintain the equilibrium.
- “Don’t cross limits, apex court asks judges” THE HINDU, December 11, 2007.
- Subhash C. Kashyap, “Judiciary Legislature Interface”, in POLITICS INDIA, pg 22.
- Upendra Baxi, “Judicial Activism: Legal Education and Research in Global in India” pg 16.
- “When judges legislate” DRISHTI IAS,https://www.drishtiias.com/daily-updates/daily-news-editorials/when-judges-legislate