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Judicial Activism: Scrutinizing The Activism Of Our Judiciary

The legislature, the executive, and the judiciary are three co-ordinate organs of the state. All three are checked by our constitution. The elected candidates as members of parliament representing the legislature, The ministers representing the executive and the judges of the supreme court, high courts, sessions courts, and various other courts representing the judiciary. All have to take oaths prescribed by the Third Schedule of the Constitution of India.

All of them affirm to bear true faith and obedience to the Constitution. Whenever it is said that the custodian of our constitution. judiciary comes to mind but it is nowhere implied that the legislature and the executive are not equal to guard the constitution. For the progress of the nation, it Is necessary that all the three arms of state function in complete consonance.

The courts of today are not passive[1]. They interpret the Constitution to be in favor of contemporary values and also use their power to correct a constitutional injustice. Courts provide easier access to laws and protect fundamentals rights. At times when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.

There is a very thin line that separates judicial activism and judicial redundancy or overreach.

History of Judiciary Activism

As the famous sayings of Sir John Marshall "It is unequivocally the province and duty of the Judicial Department to say what the law is" It is from this concept that judicial activism emanated and found expression through judgments of various so-called "activist" judges. In India, the doctrine of judicial activism was introduced in the mid-1970s. Justice V R Krishna Iyer, Justice P N Bhagwati, Justice O Chinnappa Reddy and Justice D A Desai[2] laid the foundations of judicial activism in the country. The supreme court of India has started as an activist court when traditions of British courts were followed but cautiously started following the path of the activist court.

The first landmark case in this regard is the A.K. Gopalan v. State of Madras (Gopalan case 1950)[3] the position of the writ was to establish that detention without trial under (preventive detention act 1950) was not a violation of the fundamental right under articles 14,19.21and 22 the decision held that this act held valid in the eyes of law with the ratio of 4:2 judgment. The court validated government action and noticed judicial restraints.

Furthermore, a major development was observed in the case of Maneka Gandhi v. Union of India (1978)[4] Mrs. Maneka Gandhi's passport was impounded. She challenged the action as it violated her personal liberty. The court held that impounding a passport without any legitimate reason is unconstitutional and it is a gross violation of the rules of natural justice. This verdict of the apex court overruled the Gopalan case and safeguard the validity of personal liberty under articles 19 and 21. This judgment indicates a fine example of positive judicial activism.

The PIL Mechanism: The Golden age of Judicial Activism

Over recent decades the relationship between the executive and legislators sometimes failed miserably in their duties toward the general public. The executive and legislators are responsible because their imminence on a people generates high expectations. The last step for common men is to approach the judiciary to redress their grievances. Judicial activism has earned a compassionate face with the liberalizing of access to justice and granting relief to disadvantaged groups through Public Interest Litigation.

Advancing the justice system the postal letter or even the postcard is accepted for the purpose of initiating writs. the growth in PIL actions has increased since 1977 and is mainly ascribed to incidents that happened during emergency rule between 1975 and 1977. The Supreme Court in People's Union for Democratic Rights v. Union of India (1982)[5] held that public interest litigation is different from the traditional adversarial justice system.

The court said that public interest litigation is intended to promote the public interest. Public interest litigation has been invented to bring justice to poor and socially or economically disadvantaged sections of society. The violations of constitutional or legal rights of such a large number of persons should not go unnoticed. Recently The Supreme Court of India has registered a public interest litigation (PIL) petition to consider issues surrounding the reopening of courts for physical hearing of cases based on a young girl's letter to CJI NV Ramana. However, Thousands Of Frivolous PILs are being filed In the supreme court, burdening the docket of both this Court and the High Courts.[6]

Trespassing The Limits: Transformation From Activism To Overreach

In all the above cases judiciary acting as a guardian of the constitution called upon the executive to perform its commitment to the laws. If the judiciary oversteps they will be haphazard to the constitution while in the case of the bail order, one Richa Bharti, who was arrested for writing an offensive post on social media against Muslims, was given bail by judicial magistrate Manish Kumar Singh in Jharkhand on the condition that she should distribute five copies of the Quran to different libraries. Subsequently, this condition was withdrawn[7]

The cognizance of judicial activism is based on the conscience of the judge. A glaring instance of a recent statement of The Bombay High Court's judgment under the POCSO act[8] "it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin touch with sexual intent without penetration."

This judgment crosses the limit of activism, the supreme court said that the aim of law cannot be to allow offenders to escape justice. It is an absurd interpretation that skin-to-skin touch is mandatory. The reasoning of the high court has the reasoning of High Court insensitively trivialized, legitimized, and normalized behavior which undermines the dignity of children," There must be some thin line which can differentiate between activism and overreach.

I hope I've shown you the comprehensive image of judicial activism and its component. Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to judge the abuse of judicial power. It is therefore crucial for all judges to remain vigilant alive to the truth that is matched by the real depth of judicial responsibility

  3. AIR 1950 SC 27
  4. AIR 1978 SC 597
  5. 1982 AIR 1473, 1983 SCR (1) 456

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