Justice seeker usually goes to court, but when the court itself comes to justice seeker then it is called judicial activism. In this article, we will discuss judicial activism in India in a simple and easy way, and understand its various important aspects,
So to understand better, definitely read this article till the end, as well as read other related articles. all links of related articles are given below;
Meaning of Judicial Activism
The general democratic system is that if you are involved in any kind of disputes or if your rights are being violated, then go to the court, they will solve your dispute. But what if the court itself should come to you on some very important issue. Judicial activism is based on this concept.
In other words, it means binding the other two organs of government (legislature and executive) by the judiciary to perform their constitutional obligations. That is why it is also called judicial mobility .
Its origin is considered to be from America and the credit for introducing the term judicial activism goes to an American historian named Arthur Schlesanger Jr. Talking about India, the principle of judicial activism came here in the mid-1970s. The credit for bringing this to India goes to Justice V.R. Krishna Iyer, Justice PN Bhagwati , Justice O Chinappa Reddy and Justice DA Desai.
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justification for judicial activism
Now the question is when such a situation comes, when the court needs to show judicial activism. Dr. BL Vadhera has explained this thing very well, let us understand it –
1. Responsible government almost collapses when the branches of government (legislative and executive) are unable to perform their respective functions as they should have. In such a situation, the trust of citizens in the constitution and democracy starts to break. In order to preserve the rights and freedoms of the citizens and to maintain the confidence of the people in democracy, there is a tremendous pressure on the court to help the aggrieved people by coming forward.
2. The second thing is judicial zeal i.e. the judges also want to be a participant in the social reforms of the changing times and want to do some hero type work during their tenure. For this, they give a lot of attention to public interest litigations.
3. The third thing is the legislative vacuum, that is, sometimes it happens that there is a lack of laws in some areas. In such a situation, the responsibility falls on the court itself to do the work of judicial legislation according to the changed social needs.
4. Fourthly, there are some such provisions in the Constitution of India itself, in which the judiciary has the scope to legislate, that is, to make laws or get an opportunity to take an active role.
Apart from this, Subhash Kashyap added some more lines to it, let’s see that too –
According to them, the judiciary exceeds its normal jurisdiction and interferes in such area of the legislature or executive, when,
1. When the legislature has failed to discharge its responsibilities.
2. A legislature in which no party gets a majority and the government is weak and insecure and is unable to take decisions that may displease any caste or community or other group
3. The ruling party may be afraid to take honest and tough decisions for fear of losing power and hence time consuming and delay in decision making.
4. Where the legislature and executive fail to protect the basic rights of citizens such as dignified life, healthy environment, or fail to provide an honest, efficient and just system of law and administration.
5.When a totalitarian government with an absolute majority is acting with the wrong intentions or motives as was the case during the Emergency.
6. Sometimes the court knowingly or unknowingly itself uses judicial activism for humanistic tendencies, populism, propaganda, media headlines etc.
These are some of the reasons which are legislature or executive generated, but apart from this there are also some factors which incite judicial activism. Prominent jurist Upendra Bakshi has classified it as follows.
catalyst for judicial activism
1. Civil rights activists – These groups mainly raise issues related to civil and political rights.
2. Consumer rights activists – These groups raise consumer rights issues in the framework of accountability of the consumer rights system in the framework of accountability of the political and economic system.
3. Bonded labor group – These groups require judicial activism for the abolition of wage slavery in India.
5. Citizen Group for Environmental Action – These groups catalyze judicial activism to end growing environmental degradation and pollution.
6. Child rights group – These people raise matters related to child labor, right to education-literacy, rights of adolescents of correctional homes and children of sex workers.
7. Poverty rights group – These groups provide assistance during drought and famine and bring the cases of the urban poor to the court.
8. Native People’s Rights Group – These groups work for the rights of forest dwellers, citizens of the fifth and sixth schedules of the constitution and identity.
9. Women’s rights group – These groups agitate on issues like gender equality, gender-based violence and harassment, rape and dowry death.
10. Bar based group – These groups agitate for the issues related to the autonomy and accountability of the Indian judiciary.
11. Media autonomy group – These groups focus on the autonomy and accountability of the press as well as the state-owned mass media. These are some of the important factors which we have discussed, apart from this there are other reasons as well.
Doubts about judicial activism
Obviously all things cannot be good, many questions arise about judicial activism and many apprehensions also arise, jurist Upendra Bakshi has classified it in this way –
1. Reflective fear : Is it not that under the guise of judicial activism, the courts are usurping the powers of the executive, legislature or other autonomous institutions!
2. Epistemic fear – Do they have expertise in economics, nuclear science or other such areas, so that they can show judicial activism in these areas.
3. Democratic fear – Public interest litigation is actually nurturing democracy or is destroying its possibilities in future.
5. Autobiographical fears – Is it that after retirement, judicial activism is used to secure its place in national affairs.
Judicial Activism vs Judicial Restraint
In contrast to judicial activism, there is a principle called judicial restraint , which also has its origin in America. Where those who believe in judicial activism want the courts to go ahead and take matters into their own hands.
At the same time, advocates of judicial restraint believe that the role of the judge should be limited, his job is to tell what the law is, he should leave the task of making law to the legislature and executive. Further, judges should not, under any circumstances, allow their personal political values and policy agenda to dominate their judicial opinion. This is what they called judicial restraint.
There is a lot of talk in India on judicial restraint, the Supreme Court itself has said a lot on this, let’s see that too-
? Supreme Court Comments
In a case in 2007, the Supreme Court spoke of judicial restraint while delivering a verdict. And asked the courts not to take the work of the legislature and the executive in their own hands. It also said that there is a division of powers in the Constitution and each agency of the government should not encroach on each other’s sphere of action with respect to other organs. In this context, the concerned bench made a number of observations, let us see some important observations from them-
1. The bench said, “Again and again such cases are coming before us in which the judges have taken over the legislative or executive work for which there is no justification. This is clearly unconstitutional. Judges cannot cross their limits in the name of judicial activism.
2. The bench said that the judges should know their responsibilities and limits and should not try to run the government at all. They should have goodwill and humility and should not behave like emperors.
3. The court should not put the administrative officials to inconvenience and accept that the administrative officers have speciality in the field of administration or not the courts.
4. If the legislature and executive are not functioning properly, then it is the responsibility of the people to correct them, who should exercise their franchise properly in the next election and vote for such candidates who can meet their requirements or otherwise Correct the system by adopting legal logic such as peaceful demonstration.
So overall judicial activism is very important but it must also have a limit. The concept of judicial activism is closely related to the concept of public interest litigation . It is the judicial activism of the Supreme Court that has led to an increase in the number of PILs.
Now What is this public interest litigation or PIL; ? For this you must read the article given below – PIL – Public Interest Litigation