JUDICIAL ACTIVISM IN INDIA- AN OVERVIEW

Since independence, the Supreme court and the lower courts many times acts like activists and force the authority to take action on something and sometimes directing the Government regarding its policies and administration. This is termed as Judicial Activism.

It has played a very active role in dispensing justice with cases like A K Gopalan vs State of Madras case (1950) followed by the Shankari Prasad case, etc. However, the judiciary remained submissive until the 1960s but its authoritativeness started in 1973 when Allahabad High Court rejected the candidature of Indira Gandhi. This has evolved in great extent after the commencement of public interest litigation(PIL) by Justice V.R Krishna lyer in the Indian Judicial system.

SOME CASES:

Golaknath Case: In this case Supreme Court decided that Fundamental rights enshrined in the part 3 of the Constitution are not amendable.

Keshavananda Bharati Case: In here Supreme Court introduced the doctrine of basic structure i.e. Parliament has the power to amend the Fundamental rights without altering the basic structure of the Constitution.

Similarly Supreme Court has assumed a supervisory role in the investigation done by CBI in 2G spectrum case.

Bombay High Court order to cut Jolly LLb2: After few lawyers approached the court that some scenes in the film showed them in the bad light. The court passed the judgement in their favour. This is one of the cases where courts have taken up the work of another exclusive authority.

Striking down the NJAC Act: The National Judicial appointment commission (NJAC) was proposed by the body which have the power to appoint judges to the high courts and Supreme Court. Though passed by both the houses of the parliament it was termed as unconstitutional by the Constitutional Bench of the apex court and at last repealed.

CRITICISM

Firstly, it is mainly said that in the name of activism, personal opinions were attached.

Secondly, the theory of separation of power is displaced by activism. However, its significance lies with position given to the institution as a place of hope for aggrieved man.

JUSTIFICATION OF JUDICIAL ACTIVISM

• The citizens of the country look up to the judiciary for the protection of their rights and freedoms.
• There is near collapse of responsible government when legislature and executive fail to discharge their respective functions.
• The constitution of India has itself adopted certain provisions, which gives judiciary enough scope to legislate or to play an active role.
• Certain events where judiciary has to intervene in areas of legislature and executive:
• When legislature fails to discharge its duties
• Where legislature and executive fails to protect the basic rights of citizens like right to live a decent life.

PROMINENT ACTIVATORS OF JUDICIAL ACTIVISM

• Civil rights Activists
• People rights Activists
• Consumer rights Activists
• Bonded labour groups
• Citizens for Environmental Actions
• Citizen groups against large irrigation projects
• Rights of child groups
• Custodial rights groups
• Poverty rights groups
• Women’s rights groups
• Media autonomy groups
• Bar based groups
• Assorted lawyer based groups
• Assorted individual petitioners

JUDICIAL RESTRAINT

The role of judges should be scrupulously limited; their job is merely to say what the law is, leaving the business of law-making where it property belongs, that is with the legislators and executives.

ASSUMPTIONS OF JUDICIAL RESTRAINT

• The court is basically undemocratic because it is non- elective and presumably non-responsive to the popular will.
• The questionable origins of great power of judicial review, a power not specifically granted by the constitution.
• The doctrine of separation of powers.
• The concept of federalism, dividing powers between the nation and the states requires of the court deference toward the action of state governments and officials.

SUPREME COURT OBSERVATION

While delivering a judgement in December 2007, the Supreme Court of India called for Judicial Restraint and asked courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the constitution and each organ of the state must have respect for others and should not encroach in other organs.

ANALOGY WITH JUDICIAL REVIEW AND CONCLUSION

The thing if a law made that violates the provisions of the Constitution, it must be struck down, if required interfere in the other domain (legislature and executive). And as to what I think judicial review and judicial activism are much like a same with little difference. Review is to decide if the law is consistent with the constitution. On the other hand Activism is the behavioural concept of the concerned judge. It is primarily based on public interest, speedy disposal of cases, legal aid, etc.

When a question of fundamental right comes, court act as a custodian with the power of judicial review (article 31B of the Constitution) making it the basic structure of the constitution (as in 2007 SC has given a judgement that judicial review is a basic feature of the constitution and it could not be taken away by putting a law under the 9^th schedule) and the power of activism is as implied.