Judicial Activism

By Sushma Pandey

 

Editor’s Note: The issue of judicial activism has been put on a national agenda in the recent past. It has been criticized by constitutional experts and politicians while it has been warmly welcomed by lawyers and public.

Meaning and Evolution

Judicial activism comes in to play when there are legislative short-sightedness and executive arbitrariness. The spurt in corruption, lawlessness, violation of human rights, constant erosion of democratic values has lent to an activist role of the judiciary for the smooth governance of the political system. Judicial activism is the due process by which new juristic principles are evolved to update the existing laws to bring it in conformity with the current needs of society and thereby to subserve the constitutional purpose of advancing public interest under the ‘Rule of Law”.

In the words of Justice VR Krishna Iyer one of the greatest protagonist of this judicial trend in India- “Judicial Activism is a device to accomplish the cherished goal of social justice.

Causes

The legislature and Executive are the Custodians of the honest public. They have the responsibility to remove the mask which the corrupt wear and to initiate action against those who steal, deceive or cheat. But, when the custodians themselves compromise with corruption or politicize it. The judiciary has to step in. This is what has happened in the name of Judicial Activism.

Judicial Trend

The Supreme court judgment in Bank Nationalisation Case (AIR 1970), Privy Purse Case (1971) and Keshavananda Bharati’s case (AIR 1973) and Indira Gandhi’s election Petition case (AIR 1975) played a catalytic role in the development of judicial activism in India. And, subsequently, the judiciary like two other organs of the government, was at the verge of falling live with Indira’s Gandhi concept of “committed” judiciary.

But justice HR Khanna’s minority judgment in A.D.M Jabalpur’s case (AIR 1976) saved it. The supersession of justice HR Khanna further nurture the concept of judicial activism and it was really out of a chaos of emergency that the Judiciary emerged so confident and stronger. In the emergency era, which we can call the first important phase of judicial activism, the supreme court of India delivered many landmark judgments concerning personal liberty extending the frontiers of Article 21 of the Constitution.

  • Maneka Gandhi’s case (1978): Laying down the doctrine of un-enumerated Fundamental rights.
  • Sunil Batra’s case (1978): defining the parameters of prison jurisprudence.
  • Hussainara Khatoon’s case (1979): extending the ambit of Article 21 of Constitution.

The most important contribution of Judicial Activism was the emergence of Public Interest Litigation (PIL). The doors of higher were opened to the poor, neglected prisoners and the others deprived sections of Indian society. With the expansion of writ jurisdiction, by the Activists judges more and more PIL cases relating to social maladies came to be filed in Supreme court and High court.

Thus, in the late 1980s and 1990s, one saw a spate of myriad litigations with regard to banning of injurious drugs, state of mental hospitals in Bihar, school of prostitutes, child labor. The people had a glimpse of justice because of this trend of Judicial Activism. But, The Protagonists of legal justice were not happy, as the courts were flooded with PIL cases and the courts were flooded with PIL cases and the courts were helpless to deal with such problems which were beyond the control and jurisdiction.

The second most important period of Judicial Activism started with the orders and Judgement of Justice Kuldeep Singh, protecting the Taj Mahal and Delhi from environmental pollution and Justice JS Verma’s crusade against corruption at high places In the environmental cases, which was worsening day by day the judgment of Justice Kuldip Singh became household news.

In the same way, Justice JS Sharma method of closely monitoring the Hawala’s case against leading politicians received a thundering applaud of the people and landed him on the cover page of India today. This vigorous judicial trend showed that the judges were not willing to sit back in their cozy chambers and watch the subversion of the rule of law.

Formatted on 15th February 2019.

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