Justice Krishna has said once, “every judge is an activist either on the forward gear or reverse.” But, the question of judicial activism has been a bone of contention for decades. Naysayers argue that the judiciary transcends its powers and encroaches upon the power of the legislature and the executive. On the other hand, some argue that this is done under the power given to the judiciary. Through the years, there have been many instances of the judiciary reading into the Constitution and these instances have been thoroughly criticized.
Judicial Activism – Myth or Reality?
The term ‘judicial activism’ is an ignoramus term – for it is not possible for the judiciary to be inactive, as the judiciary must always continue active. It can be observed in some cases that it is imperative for the judge to take upon the role of an activist to validate the rule of law. In some case this ‘activism’ can turn into judicial overreach, when the limits of ‘judicial activism’ are crossed.
Since the Constitution was confined over half a century ago, it is only natural that certain aspects of it must be looked into again with a new and fresh perspective, without disturbing the basic elements of the Constitution itself. Judicial activism advocates the use of interpretation of judges as combated to strictly sticking to words of the law. Often, this is seen as judges using their personal policy preferences as a way to reach decisions that are meant to be not biased. However, the political circumstance within the country has a big role to play while deciding how the power should truly be divided.
The Need for ‘Judicial Activism’
It is an accepted notion that separation of power between the three organs (Legislature, Executive & Judiciary) should be endorsed at any costs. However, the nature and structure of current society relies upon the judiciary to ensure justice. In a Utopian world, the power of lawmaking would lie simply in the hands of the legislature, and such a process would be just, fair and reasonable. But unfortunately, the reality of today’s government system is closer to being dystopian than Utopian. The idealistic circumstances under which such a division of power was anticipated hold no ground in today’s world as corruption runs uncontrolled, vested interests are given priority, and deprivation of masses is ignored. In such a situation, the proactive role of the judiciary is only natural and must be so accepted.
The criticism of judicial activism has to be looked into taking into account the Indian Political System. The belief of the Indian public in the political system is at an all time low. In a situation such as the present one, the courts need to step in and preserve the quality of law, in order to take care of ‘justice’ to have the same meaning. It might even be aforesaid that the policy of the court is caused by the shortage of policy of different branches of the government. If we glance at it this way, the acts of the judiciary in this case are merely compensatory in nature.
It has been pinned out that judges should not create a new law and seek to enforce it. However, there are certain scenarios wherein such an act is carried out due to judicial compulsion. An instance of this is the Vishakha case, where it could be said that the apex court has created a law and sought to enforce it, however they clarified that those guidelines would only be treated as a law until the legislature would enact appropriate legislation on molestation.
In the landmark judgment of Maneka Gandhi vs Union of India, the court scan the “due process” doctrine into Article 21 of the Indian Constitution. This was done despite the actual fact that the legislature had decided on the words “procedure established by law”. The Supreme Court, thus, modified the entire meaning of the article and restricted the scope of what kind of law would be permissible under Article 21, that may be ‘just, fair and reasonable’ one. However, this was a necessary action dispensed out by the judiciary for the protection of the rights of the citizens of India. By restricting the scope of what a law would mean under Article 21, they have provided for a further system of checking whether such a law should have standing in the first place. This action, thus, cannot be seen as wrong.
Further, the judiciary has an extra responsibility besides application of law – they are additionally the guardians of justice. Article 38 of Indian Constitution provides that the state to strive to promote the welfare of the people by securing as well as promoting a social order that upholds the mandate of justice in all spheres whether it social, political or economic. For instance, Article 142 states that the Supreme Court have the full power to pass any decree or order which are necessary for doing complete ‘justice’. Further, the article even gives power to the court to ignore existing legal provisions for this purpose. This is a transparent indication of the fact that the Constitution framers intended for a certain amount of power to be incline to the judiciary, and saw them to be the true flag bearers of justice within the 3 organs.
Separation of power has been mandated under our constitution. However, the basic need for economic, social and political justice, as stated in the preamble overrules this strict separation of power. Often, the judiciary has to take matters into its own hands in order to ensure that justice is gained. In a case where the judiciary had not done the same, rights such as right to privacy would not exist in today’s scenario. A bold and active judiciary is the sign of a strong democracy. It has proved time and again that it deserves the recognition it achieves, and continues to work towards the collective goal of justice for all citizens.
However, this is not to say that the judiciary is perfect – like every other organization, it comes with its own set of flaws. Judicial accountability still remains debatable; nevertheless, the question of judicial overreach unarguably stands unnecessarily.
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