Judicial Activism : Transgressing Border and Enforcing Limits
By Apeksha Yadav*
The great contribution of judicial activism in India
has been to provide safety valve and a hope that justice
is not beyond reach. When legislature and executive
th emselves becomes t he mere sp ecta to r an d
responsible for the problems of the public then the
safety valve has to come forward for playing its duties
as the protector and even have to violate its borders
and enforce its limits for the welfare of the citizens
and saving the supremacy of constitution.
The constitution framers framed the Indian constitution by providing three eminent pillars to the Indian democracy for its good governance namely- Executive, Legislature and judiciary. But they all were differentiated by the framers on the ground of ‘separation of powers’. However checks and balances are there for each democratic pillar. Today after 61 years of the enforcement of the Indian constitution, there is indeed somethingstillmissingfor thegood and proper qualitative governance of the country.
The missing part gave birth to now popularly known term “Judicial Activism”. JudicialActivism is aresult ofthe improper performance of the functions of the legislature and executive. It is the function of the legislature to formulate laws and of executive to implement itbut when both democratic pillars fail to discharge its obligations; it becomes the responsibility of judiciary to compel them to perform its functions lawfully. When crimes are committed by the ‘Men In Power’ and attempts are made to stop them by the official machinery becomes ineffective, it becomes necessary for judiciary to pay due considerence towards it and issue appropriate directions regarding the method and manner in which the executive should act, as per the constitution and laws. If judiciary fails to respond, it would be guilty of violating the constitution, of which it is the protector.
In 1803, Lord Marshall said “It is emphatically the duty of the Judicial Departmentto say what theLaw is”, while decidingthe caseof Marbury v/s Madisson1. This ruling marked the birth of judicial activism and judicial review.
JudicialActivism is the pro-active participation of the Judiciary in the Political, Economic, Social and other matters of the National Interest through their ruling to safeguard the supremacy and sovereignty of the constitution.
The constitution makers adopted certain provisions with the objective of establishing ‘Rule of Law’2 in the country. The rule of law means each and every democratic pillars of the Government must dispense their functions and duties assigned to them by constitution. If the legislature and executive doesn’t dispense their functions and duties, then it would be death of rule of law. The judiciary can’t be a party to it, Hence to safeguard the rule of law,’judicial intervention has become the need of hour’.
CONSTITUTIONAL PROVISIONS :
There arefew provisions of importance for judicialactivism mentioned in our constitution.
Article 13(1) provides that, if any law or actions of the legislature or executive are inconsistent with the provisions of constitution then judiciary has the power to declare it void;
Article 32 empowers the SupremeCourt as the protector and guarantor of thefundamentalrights;
Article 141 laws declared by Supreme Court to bebinding on all courts within the territory of India;
Article 142(1) provides that the Supreme Court may pass such decree or make such order as is necessary for dispensing complete justice; Article 142(2)says that Supreme Court shall have all and every power to make any order for securing the attendance of any person, the discovery or production of any document or punishment of any contempt of itself.
HIGH-WATER MARK JUDGMENTS :
Judicialactivism earned a important facet in India by liberalizing access it justice and giving relief to disadvantaged groups, with the help of Justice V.R. Krishna Iyer and Justice P.N. Bhagwati.
Thehigh watermark caseof judicialactivism in India was the judgments of the majority in Keshavananda Bharati’s case3. “By virtue of Article 368 as amended by the 24th Amendment Act, the parliament had the power to amend any or all provisions of constitution, including those relating to fundamentalrigths.”4 It was held thatin exerciseof amending powermentioned in Article 368, the parliament cannot amend the basic structure of the constitution. The constitutional supremacy5 and the court’s power of judicial review6 are parts of the basic structure of the constitution.
This was for the first time the judiciary transgressed the borders of legislature and executive.
The another case which changed the outlook of the judiciary is the ManekaGandhi’s case7.After this case courts have assumed an activist approach and come forward to save the aggrieved people. Right to life and personalliberty8 has been an Articlewith much broader meaning and interpretation to include all the essential right for human life with dignity and those rights are easily made available through an activist judiciary. In many cases, similarto this judiciary interpreted the required constitutional provisions in its wider possible meaning to protect the basic civilliberties and fundamental rights.
The anotherweapon thatspreaded judicialactivism widely was through liberalinterpretation on Locus Standiby Justice V.R. Krishna Iyer in 1975 on Public Interest Litigation. The PIL gave a clearer shape to judicial activism through the remarkable judgments in the Judge’s Transfer Case9.
PIL and judicial activism has touched almost every aspect of life. With the misgovernance and criminalization of the executive, the court took up the case of terrorist funding linked to political corruption through the ‘Hawala’ route in the Vineet Narain’s Case10. A cover up by the CBI to protect them was exposed and the court monitered the investigation by giving principle “Be You Ever, So High The Law Is Above You”. The court also gave several directions so as to make CBI and CVC more effective and efficient.
In various PIL’s like of Bonded Labour and their rehabilitation, Protection of pavement and slum dwellers, Juvenile offenders, Protection of prisoners, Child welfare, Illegal detentions, Women welfare, Protection of dignity of courts, Enforcement of public duties, Directions relating to CBI and CVC, Ethics of Medical Profession, Environment problems, the court laid down various judgments to protect the basic human rights of each and every member of society. Many scams like Hawala, Urea,Ayurvedic Medicine, Fodder,etc have been brought through PIL’s for appropriate relief and orders.
The recent examples of such PIL’s is Appointment of PJ Thomas as CVC, Ordering CBI probe in the 2G Spectrum case, appointing commissions in Commonwealth Games Scam and Adarsh housing society Scam, etc.
Thus, PIL’s have played pivotal role in extending limits of judiciary to the matters of serious concern which was neglected by the legislature and executive.
Someof therecent judgments and orders of theSC judges have shaken up the roots of legislature and executive up to some limit. Like:-
• Chief Justice S.H. Kapadia’s landmark judgments on quashing the appointment of PJ Thomas as the CVC (Central vigilance Commissioner)and laid down guidelines forfuture appointment.
• JusticeSudershan Reddy’s landmark judgmenton pullingup the Government for failing to act against Hasan Ali, who evaded paying taxes.
• Justice G.S. Singhvi’s judgment on ordering CBI investigation into 2G Scam that led to the resignation of Former Telecom Minister A.Raja and his arrest.
• Justice Markandey Katju’s judgment on declaring Passive Euthanasialegaland SC’s judgmentto bethe lawuntilparliament makes law on it.
• SC’s order of speedy and regular trial in 2G Scam case in only CBI’s Special court.
These are just a few examples where the judiciary is knocking on the doors of the legislature and executive to make them awaken for the good governance of the country.
Every good and bad thinghave to come across criticism later or sooner, so as judicial activism have to face in India by its Detractors on the following grounds:-
• JudicialActivism takes away the power of the elected branches of Government or appointed Agencies, damaging the Rule of Law and Democracy;
• Most Indians deals with the dreadfulscenario in the inefficient Lower Courts, where the public’s sentiments towards these courts and the law are negative and not respectful.
• One of the criticisms is that in the name of judicialactivism, the theory of ‘Separation of powers’ is neglected and the judiciary is interfering in the authority of thelegislature and the executive by entering in the sphere reserved for them.
Therefore itcan beconcluded, that although above mentioned criticisms are their but judicial activism has proved to be a boon for protecting rights of the victims, against the illegaland unconstitutionalactions of the state and public servants. But JudicialActivism should not take away the fields constitutionally assigned for the legislature and the executive, it would spread disaster, otherwise the balance formed by the constitution framers would be disturbed and chaotic conditions will prevail.
So as to restore the faith of generalmasses in democratic institutions they must function effectively under thevigilant eyeof judiciary,as the constitution ordained:
“Concern and Careis mustuntillitdoesn’t harms the dignity of another!”
1. J.N. Pandey – Constitutional Law of India.
2. Kailash Rai – The Constitutional Law of India.
3. Article by Anil Diwan – Judicial activism and democracy.