Judicial Activism

Introduction



In the words of former C.J.I. Justice J.S. Verma, Judicial Activism means an active process of implementation of rule of law essential for the preservation of a fundamental democracy. Judicial Activism to define broadly is in the assumption of an active role by the judiciary. Theoretically the judiciary is expected to adjudicate matters comes before it or to evaluate the policies promulgated by legislative or executive wing of the government. It has been argued that Judicial Activism would shift the power from the Executive and Legislative to the judges.
But it is equally important to check the excess committed by the other two branches of the State by the judiciary using its power of judicial review.

Active and an activist Judge -
   All judges and courts must have to be active, because they cannot refuse to decide a properly presented case. An active Judge is regarded as it were as a trustee of State power and Judicial Authority. In the words of Upendra Baxi – an activist judge regards himself as holding Judicial Power in fiduciary capacity for civil and democratic right of all peoples, especially the disadvantaged, dispossessed, and deprived. He does not regard adjudicatory power as repository of the reason of the State.

Basic Structure Theory
The Supreme Court in Kesavanand Bharti v. State of Kerala, 1973 AIR SC 1461, it was held that it can struck down even Constitutional amendment if it destruct the basic structure of the Constitution.

Court not to run Government
Nani Palkiwala said that function of the court is not to run the Government. Justice V. R. Krishna Iyer is also of the opinion that court can not and should not run the Government.


Direction to Make Law
The Apex Court has ruled repeatedly that “no Court can direct a legislature to enact a particular law, but assuming Activist role, on Sept. 6, 2005, it asked the Union to report on the Lok Pal Bill’s status. Judiciary has not shown much hesitation in asking the Executive as to what laws should be enacted and when? Calling status report on Lok pal Bill and Sarla Mudgal case on uniform civil code may be recalled in this respect.

Encroachment
Criticizing Judicial Activism, Former Lok Sabha speaker, Som Nath chatarjee commented that the issue of Judicial Activism is attracting the attention of Constitutional experts, legal luminaries and others. Many eminent personalities have expressed the view that Judiciary has, at times, been found transgressing its jurisdiction and entering in to the domain of executive and legislature. By way of Judicial Activism if judiciary is making other two wings of the government defunct and weakening them, it would not be in favour of the good health of the democracy.
Excessive Judicial intervention
It was felt in some quarters that there was excessive judicial intervention in the functioning of the executive wing, but it was necessitated entirely by the lethargy of the executive branch of the Government. Legislature showed a chronic lack of political will to act on many occasions, which compelled the Supreme Court to step-in and make laws by judicial decisions in order to protect the rights of the citizens. Vishaka judgment [AIR 1997 SC 3011] is an example in this regard.

Failure of other wings
The increase of administrative power is generally thought with the danger of its abuse. Failure of use or abuse of its power by the Executive is sure to disturb the heartbeats of social aspiration. Judicial Activism is a potent pacemaker to correct the malfunctioning in violation of the Constitutional mandates. Balanced Judicial Activism is, therefore, indispensable for improving the needed vitality to the rule of law in a welfare State.

Governmental Functions
Lord Bingham said that - ‘The Courts should be more active and creative when political organs of the State are least effective.’
http://www.lawjunction.in/resources/articles/Constitutionality%20of%20judicial%20activism.pdf

Hawala Case
In Vineet Narayan v. U.O.I. AIR 1998 SC 889 when Apex Court took over monitoring of investigation in Hawala transaction.
In jain Hawala diary case, Activist thrust of the Apex Court lead it to monitor CBI investigation related to some VIPs. Again in Common Cause v. U.O.I. AIR 1996 SC 3538 the Apex Court cancelled the allotment of Petrol Pumps made by the then Minister of State Capt. Satish Sharma on the ground of Nepotism and malafide. The Apex Court passed structure against the Minister of State. The activist thrust of Supreme Court for insuring good governance and probity in public life got the light by the above mentioned landmarks judgments.

Judges Appointments:
In In S.C. Advocates on record Assn. (1993)4 SCC 441, the Apex court has assumed power of appointing judges transgressing the domain of executive. Taking Activist step the Apex Court held that opinion of CJI has primacy in matter of appointment of a judge of Supreme Court or of a High Court.

Judicial Protection to Judges
In K. Veeraswami v. UNION OF INDIA (1991)3 SCC 655, it was held that no criminal case shall be registered against a judge of the Supreme Court or a High Court without the approval of the C.J.I. No law contained such immunity. It seems to be a Judicial Activism for securing independence of judiciary.

Law Abhors Vacuum
Law abhors vacuum. Therefore, when the executive refused to act and legislature could do little about it, Indian Judiciary stepped in to save the day. Many call it ‘Judicial Activism’ and a few also consider it to be a usurpation of power by the Judiciary. Criticism, howsoever severe, this was needed to helping the down trodden, disadvantaged persons and who were unable to knock the door of the court.

Marbury v. Madison
Marbury v. Madison case decided in 1803 by the U.S. Supreme Court was the starting point of the Judicial Activism. Chief Justice John Marshall held that, although Marbury was entitled to the commission, the statute that was the basis of the particular remedy sought was unconstitutional because it gave the Supreme Court authority that was implicitly denied it by Article 3 of the U.S. Constitution. This was the first case in which the Supreme Court has declared an act passed by U. S. Congress as unconstitutional and void.

Needed Relief to Downtroddens
Justice S.B. Sinha said that starting from S.P. Gupta v. UNION OF INDIA, AIR 1982 SC 149, in a number of cases the Supreme Court has relaxed the common law rule of locus Standi and reaffirmed this principle and entertained the cases for giving redresses to those hapless, helpless citizens of the country who were in need of justice for enforcing their right to life, liberty and other fundamental rights guaranteed under the Constitution. The Apex Court has granted great relief to the large number of people who are the down trodden, the dalits, women, children, workers, old people etc. who by reason of their disadvantaged position are not able to knock at the doors of the court. The Supreme Court assumed the role of a starter and relaxed the Common-law rules of Locus Standi.
Opposition of Judicial Activism
Judicial Activism is resented everywhere and so was the case in India too. Opponents of the judicial activism maintain that:--
a. Court is not run on democratic line.
b. It took controversial stand on the matters related to public policy.
c. Court lacks the capacity to make effective policy.
d. Court has passed some unenforceable verdicts.
e. If judicial activism becomes pattern then novelty will disappear sooner of later.
Policy Matters:
A series of judgments beginning with Maneka Gandhi v. U.O.I., [1978]1 SCC 248, the Supreme Court has not hesitated in taking appropriate action in respect of policy matters like reservation in public services, keeping subject in 9th schedule, admission to private professional colleges, freedom of media, and need of common civil code, etc. has sparked debate on Judicial Activism. Judiciary has to keep in mind that Constitution did not empowered judiciary a substitute for the failure of other two branches of the State.

P.I.L. - A New Tool of Activism
PIL is one of the highly potent tools and technique of Judicial Creativity of the Court in maintaining people’s faith in administration of justice and rule of law. It is true that some times this tool was used as a weapon of harassment, therefore, judicial activism is resented every where in the world and so is the case in India.
Former CJI J.S. Verma, has rightly observed that – “the need is to prevent misuse of PIL and not to criticize the process. What the court has to ensure that misuse of PIL has to be prevented and proper use of it has to be blunted. Any attempt to curb it would be to through the baby with bath water. The court has to device self-restraint, proper check and balance to ensure those even people who want to misuse is not able to do so.

Verities of Judicial Activism
Activist and creative role of the higher judiciary is clearly visible in a series of path breaking judgments. The following examples of cases will suffice to see how the Supreme Court has come to rescue with its Activist role in a needed vitality:--
[1] Access to Court: In S. P. Gupta v. U.O.I., AIR 1982 SC 149, the Apex Court has liberalized an old age legal requirement of locus-standi.
[2] Bonded Labourers: In Bandhua Mukti Morcha v. U.O.I. [AIR 1984 SC 802]
[3] Right against Custodial Violence: In D.K. Basu v. State of West Bengal, (1997)1 SCC 416.
[4] Duty of State: It is the duty of State to make citizens free from pollution, as held in RATLAM MUNICPALITY v. VARDICHAND AIR 1980 SC 1622.
(5) Right to free Education – In Unikrishnan v. state of Andhra Pradesh AIR 1993 SC 2178.
(6) Fundamental Rights: Fundamental Rights cannot be waived by a person even by s legal agreement, as held in Olga Tellis v. Bombay Municipal Corporation (1985)3 SCC 545.
(7) Gender Justice: Right to be free from Sexual harassment: In Vishaka v. State of Rajsthan AIR 1997 SC 3011.
(8) Right against Handcuffing: In Prem Shanker Shukla v. Delhi Administration, (1980)3 SCC 526.
(9) Right against illegal arrest – In Joginderr Kumar v. State of U.P. (1994)4 SCC 250.
(10) Judges Appointments: In In S.C. Advocates on record Assn. (1993)4 SCC 441, the Apex court has assumed power of appointing judges transgressing the domain of executive.
(11) K. Veeraswami Case: (1991)3 SCC 655: No criminal case shall be registered against a judge of the Supreme Court or a High Court without the approval of the C.J.I.
(12) Right to Legal Aid – In Madhav Hoskat v State of Mah. AIR 1978 SC 1548.
(13) Maneka Gandhi case: Procedure should be just, reasonable, and fair, otherwise it would be violative of Article 21.
(14) Right to Privacy – In Govind v. State of M.P. AIR 1975 SC 1378.
(15) Right to Speedy Trial – In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
(16) Right against illegal use of Article 356: In S. R. Bommai v. U.O.I., AIR 1994 SC 1918.

The above list of cases is not exhaustive but only illustrative to indicate how case after case, creativity of Supreme Court is visible in this pro-active interpretation of the Constitution. By innovative interpretation of Constitutional provisions by Supreme Court by way of Judicial Activism is gradually becoming a domestic law of the country.

Transgression in the field of Legislature
Judiciary is not empowered to make law. It is the sole domain of Legislative branch of the State. But judges are transgressing in the field of Legislature. Justice Holmes said that - Judges do and must legislate. Justice Cardozo said that - “Judges have of course, the power though not the right to travel beyond the walls of interstices.”
Aiming to Judicial Activism Lord Denning cautioned that “If they depart from it and do so knowingly – they themselves would be guilty of a misuse of power.”

Economic and Financial Policies:
Supreme Court on Feb. 6 of 2008 said that courts should not interfere in matters relating to economic and financial policies as it would amount to encroaching in to the domain of executive and the legislature. But Apex Court justified the judiciary’s activist role in protecting civil liberties and fundamental rights of citizens.
Why?
A bench of Justice H.K. Sema and Maskanateya Katju said that as economic politics involve planning by experts, courts should refrain from interfering unless the policies are unconstitutional. Apex Court said that the Court does not consist of economic and administrative experts. It has no expertise in these matters and in this age of specialization, when policies have to be laid down with great care after consulting specialists in the field, it will be wholly unwise for the court to encroach in to the domain into executive and the legislature.”
Professor Sir Willdam Wade, Q.C. in his book “Judicial Activism and Constitutional democracy in India”, has recorded appreciation of Judicial Activism, but sounds a note of caution against encroachment in the field of other organs: - “For one thing, courts lack the facilities to gather detailed data or probing enquiries.”
Strike-down the Action.
When a State action is challenged, function of the court is to examine the action in accordance with law determining as to whether Legislature or Executive has acted within the powers assigned under the Constitution and if not Court must strike-down the action.
Court is not an appellate authority
Every State action has to be tasted at the anvil of the rule of law, but court has to keep in mind that it is not an appellate authority. Policy matters lies within the sphere of Legislature or Executive. Therefore, the role of the court is limited to see that these authorities do not transgress their constitutional limits or statutory power. But now it is not uncommon to see the speakers of the legislative house being summoned to explain some of the decisions taken in the course of their constitutional duties. Even the Presidential prerogative of pardon is not immune to judicial review. Maru Ram’s case [AIR 1980 SC 2147] is an example in this respect.
Zenith of Judicial Activism
S. R. Bommai case [AIR 1994 SC 1918] is zenith of judicial activism. It was held in this case that Court can restore Legislative Assembly if President’s proclamation is found to be unconstitutional. Today it has been the position that the Supreme Court has acquired the final say practically in all matters related to the governance of the country.
Constitutional Amendments
The Supreme Court in Kesavanand Bharti v. State of Kerala, 1973 AIR SC 1461, evolved new theory of basic structure of the Constitution and held that it can struck down Constitutional amendments if it affects the basic structure of the Constitution.
Conclusion
While the politicians have been uneasy about judicial encroachment in to area of policy making, the public by and large have welcomed the intervention of courts through PIL. This is a general perception that the Legislature is unwilling to take prompt remedial measures and the Executive is unwilling to enforce even existing laws, Court has come forward to help public in their needed vitality. Now a day, in the prevailing circumstances, Judicial Activism has become indispensable for ensuring rule of law. Judicial Activism is not an unguided missile. It has to be controlled and properly channelized. Balanced Judicial Activism is, therefore, indispensable for improving the needed vitality to the rule of law in a welfare State.