Daily News Analysis

JUDICIAL ACTIVISM

15th July, 2021 Security and Defence

Context

  • Honorable judge of the Supreme Court opines the importance of judicial activism.

 Background

  • The concept of judicial activism originated , coined and developed in the
  • Judicial activism denotes the proactive role or assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties and protect rights of the citizens
  • Judicial activism can be defined as the process of lawmaking by judges.
  • It means an active interpretation of existing legislation by a judge.
  • Its a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions
  • Concept of judicial activism is closely related to the concept of Public Interest Litigation (PIL).
  • Judicial activism of the Supreme Court and high courts is the major factor for the rise of PIL i.e., PIL is an outcome of judicial activism.
  • In fact, PIL is the most popular form (or manifestation) of judicial activism.
  • Judicial activism is not backed by the Constitution; it is a product devised solely by the judiciaries

Role of Judicial Activism

  • If the government isn't able to fulfill its duty then it results in erosion of the confidence in the Constitution and democracy amongst the citizens.
  • There is a tremendous pressure on judiciary to step in aid for the su ering masses as citizens of the country look up to the judiciary for the protection of their rights and freedoms
  • Judicial legislation fills the judicial vacuum in certain areas

Initiators or catalyst of Judicial Activism

  • Judicial activism more often doesn’t occur from the side of courts but there are certain activists who activate judicial activism
  • Eg - Civil Rights Activists, Civil Rights Activists, Environmental groups etc.

Views against Judicial Activism

  • Democratic fears- How can judiciary overplay the democratic elected government which is the voice of the people
  • Epistemic fears- Do judges have enough knowledge in economic matters which led to cancellation of allocation of coal block (2G Scam) , environment matters which led to cancellation of translocation of Cheetah

 Supreme Court Observations on Judicial Activism

  • The remedy is not in the judiciary taking over the legislative or the executive functions, because that will violate the delicate balance of power enshrined in the Constitution ( Article 50 of DPSP )
  • Judiciary has neither the expertise nor the resources to perform these functions of executive and legislature
  • If that, the other two ( Executive and legislature) organs are not doing their jobs properly. Even assuming this is so, the same allegations can be made against the judiciary too because there are cases pending in courts for half-a-century
  • If the legislature or the executive was not functioning properly, it was for the people to correct the defects by exercising universal adult franchise and peaceful demonstrations

Recent instances of Judicial Activism

  • Prashanth bhushan and kunal kamran contempt case - Indiscriminate exercise of contempt power
  • Arun Gopal v. Union of India : The Supreme Court fixed timings for bursting of crackers on diwali and prohibited the use of non-green fireworks, although there are no laws to that e ect.
  • Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not
  • Kesavananda Bharati case: This judgement defined the basic structure of the Constitution.
  • C. Mehta vs Union of India case- Where SC directed that no BS-IV vehicle should be sold after March 31, 2020 and only BS-VI vehicles should be sold after that.
  • Subhash kashinath vs state of maharashtra case- SC amended the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989
  • A Judge mandated that every student in Tamil Nadu must study
  • Justice SR Sen of Meghalaya High Court said India should have declared itself a Hindu country, like Pakistan declared itself an Islamic nation.
  • The Supreme Court has directed the most complex engineering of interlinking rivers in India when water disputes are not in the original jurisdiction of the Supreme Court.
  • The court has passed orders banning the pasting of black film on automobile
  • The court has ordered the exclusion of tourists in the core area of Tiger reserve.