According to black’s law dictionary judicial activism is defined as a philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors to guide their decisions usually with the suggestion that adherents of this philosophy tend to find constitutional violation and are willing to ignore precedent.
Judicial activism means the proactive role played by the judiciary in the protection of the rights of citizens and in promotion of justice in the society. In other words it the role played by the judiciary to force the other two organs of the government (legislative and executive) to discharge their constitutional duties.
The power of judicial activism or the same concept is said to be present under article 142 of Indian constitution which provide a unique power to supreme court, to do “complete justice” between the parties, i.e; where at times law or statute may nor provide a remedy, the court can extend itself to put a quietus to the dispute in a manner which would be fit the facts of the case.
A brief in glace on journey of judicial activism
The supreme court of its vast power under article 142 has done tremendous good to many deprived sections and to the society as a whole.
Judicial activism has help in protecting or expanding individual rights. Where the legislative and executive fail to protect the basic rights of citizens, like the right to live with dignity, in such times, judicial activism has played a great role.
PIL (Public Interest Litigation)
PIL has played very major role of judicial activism in our country. Judicial activism and shift from locus standi to public interest litigation played an important role to ensure access to justice which is a fundamental aspect of rule of law. The shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
Various landmark judgements are request of it- People’s union for democratic rights V. Union of india, MC Mehta v. VOI and many more.
Indian judiciary has played an active role in ensuring access to justice for the indigent persons, members belonging to socially and educationally backward classes, victims of human trafficking or victims of beggar, transgender etc. through this eminent concept.
An insight on judicial activism during pandemic
No doubt, judiciary is playing an obvious rule through judicial activism since a long time and in accordance with the need of time. But there is very slight line between judicial activism and judicial overreach.
Moreover, the aspect could be understand in today’s time from two point of views now-a-days in judiciary where :
1. judiciary is not active where it should be,
2. judiciary also seems sometimes to act as what is called “judicial overreach”.
Contradiction between response of supreme court during first wave and second wave
It seems a huge contradiction in responses of supreme court between 1st wave and 2nd wave of pandemic.
The plight of migrants are quite miserable during 1st wave but when petition was moved to supreme court on non functioning of executive on the matter, supreme court regarded it as an interference in then executive matter and pull itself out of the matter and did not take any necessary steps for the migrants.
The supreme court attitude on farmer’s laws is also being criticised on the ground that SC failed to look on the constitutional validity and procedure of passing firstly.
Oxygen and bed supply crisis during 2nd wave of pandemic It is said that judicial activism came when government fails to perform its functions well, then court has to ensure fundamental rights of people.
when court became active on crisis of oxygen and bed availability and give directions to the government to ensure bed and oxygen supply, that is really appreciable. This shows judiciary working on its functions to protect article 21 i.e; right to life and personal liberty. This was necessary for well functioning of judiciary.
Judicial activism, however liberally interpreted, would be counter productive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform, it is another to say, “if you don’t do, we will do it overselves”.
This statement however proves to be in existence during the pandemic but to a small extent it have to say that the judiciary did not take the stand as matters related to migrant workers while in question.
During the pandemic, both scenerios could be seen- judicial non activism as well as judicial overreach but at the same time the positive approach of supreme court also can’t be ignored.
This need of hour is collaboration between centre-states, constitutional bodies as well to maintain the integrity of Indian judicial system.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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