What is Judicial Activism ?

Method of exercising judicial review or a description of a specific judicial decision in which the judge is often viewed as being more willing to rule on constitutional questions and to invalidate legislative or executive measures. For instance, lawsuits that are suo moto (on their own), public interest litigations (PIL), novel doctrines, etc.

There is no constitutional support for judicial activism. It was created by the Indian Judiciary.

The topic of judicial activism has long been the subject of contentious debate, especially in light of recent changes in this area. The judges of the Supreme Court and the other High Courts have recently sparked a debate that has always been quite heated with a number of contentious decisions.

But it’s still unclear what the phrase “judicial activism” actually means. According to the Indian Constitution, it is the State’s primary responsibility to uphold justice, liberty, equality, and fraternity in the nation. The Indian judiciary has always been seen as the protector and defender of the Indian Constitution.

When it was required, the Indian judiciary actively participated in defending a person’s fundamental rights from the State’s unjust, disproportionate, and unequal actions and inactions, in accordance with its constitutional duties. As a result, judicial activism is the complete antithesis of judicial restraint. The two phrases used to characterise the idea and reason underlying some court rulings are judicial activism and judicial restraint.

Judicial activism is the exercise of the judiciary’s authority. A judiciary that is very active is another definition. Keshvanand Bharati v. Kesala, Minerva Mills v. Union of India, India of Gaudlis v. Raj Naraian, and SP v. Union of India are a few famous instances that demonstrate judicial activism.

Constitutional history :

• Legislative, executive, and judicial power all rest on these three pillars in a democracy.
• The judiciary is the guardian of the people’s fundamental rights and democracy. It has the authority to conduct judicial reviews of the legislative and executive branches.
• Judicial review is permitted by the Indian Constitution’s Articles 13, 32 (Supreme Court), and 226. (High Court).
• Article 13(2) – The State shall not pass any legislation that restricts or revokes the rights granted by this section, and any legislation passed in violation of this clause shall be null and void to the extent of such violation.
• This option for individuals to seek remedy for the violation of their fundamental rights is enshrined in Article 32 of the Indian Constitution.
• According to Article 226, High Courts have the authority to issue directives, orders, or writs with the characteristics of a quo warranto, mandamus, prohibition, or certiorari. These directives, orders, or writs may be issued for any reason, including the enforcement of fundamental rights.

Judicial Activism’s Future:

• The idea of judicial activism has several facets, however these facets cannot be applied universally because they differ depending on ideologies and constitutions. Since judicial activism is a concept that is not easily understood, various people have varied opinions on what it implies.
• Opponents of this activism contend that it weakens the authority of the elected branch of government and harms democracy and the rule of law. Many disagree, arguing that it is a valid method of judicial assessment and that legal interpretation ought to adapt to meet societal requirements.
• If judicial activism turns into a supervisory power to correct policies and government actions, public authorities, then citizens rush to the Supreme Court and 24 High Courts. Judicial activism is good when it is for the benefit and development of under-advantaged sections of society, but it should not interfere with the policy making power of government.

Indian Judicial Activism:

The recent Supreme Court decision offers some fascinating insight into how judicial activism has changed in India; the country’s inhabitants now perceive it in a provocative way. The protection of the socially and economically underprivileged and the public sector are no longer the only concerns of the Indian Supreme Court.

The Supreme Court expands peoples’ rights in accordance with the circumstances and conditions of the rights to equality and personal liberty with the use of a liberal reading of the constitutional clause. gave the phrase “life, liberty, and personality” in Article 21 of the Indian Constitution a broad definition.

The Supreme Court abolished the constitutionally granted authority for the President of India to appoint judges, and instead ceded it to the Chief Justice of India and the Collegium of Four Judges, in accordance with the doctrine of the creative interpretation of the Indian Constitution. Since no country in the world has the authority to choose and appoint judges for judges themselves, this demonstrates the workings of judicial activism in the region.

Problems with judicial activism

Slows down governance: It may hinder the executive’s regular operations and distract public officials’ focus to gathering evidence to present to the court.

Dread among officials: The majority of skilled, knowledgeable, and brave authorities who may have thought of creative solutions to rescue an exceptional situation are reluctant to act out of fear of having to defend their decision before the judiciary.

Judicial overreach: There is a fine line between judicial activism and judicial overreach, since the latter occurs when the former crosses it and begins to veer into judicial adventurism.

Examples of judicial overreach include the Shyam Narayan Chouksey v. Union of India case, in which the Supreme Court’s ruling in December 2016 mandated that the National Anthem be played in all Indian movie theatres prior to the opening of feature films.

judicial restrictions:

Judges are appointed rather than elected.

No independent investigation: The judiciary lacks an independent investigation agency to analyse the effects of its orders on the populace and the other two branches of government and to confirm the veracity of the allegations brought before it.

Subjectivity: The judges’ ideas, which are reflected in their opinions, are shaped by their personal experiences and upbringing, and may not always reflect the public opinion, which, in a democracy, can only be expressed by the people’s chosen representatives.

Errors that go uncorrected: A mistake made by the legislature or president can be fixed by them directly or by the court using its judicial review authority. But it’s possible that a mistake in a court decision won’t be as simple to fix.

Moving ahead

The judiciary must exercise utmost caution to avoid unintentionally giving in to politically motivated arguments in the midst of the pandemic crisis.

A more sensible rule of law is: Don’t issue a decree that can’t be executed or whose execution the court can’t oversee!

The three wings of government should have confidence in one another and not presume that the other wing must have failed.

Supporting public servants during a string of crises: In addition to the coronavirus, there are also earthquakes, fires, locust assaults, Amphan, and other threats. Our neighbouring nations that pose the greatest threat to us are at the top. The judges should thus rise to the occasion.

Taking on media negativity

There is a general perception that the administration has not responded as quickly and forcefully as some would have liked.

It’s possible that the media, both print and electronic, did a poor job of emphasising the good aspects of the executive’s acts.

These achievements shouldn’t be considered in a vacuum, separate from incredibly excellent government plans and initiatives.

The president of Israel’s Supreme Court, Aharon Barak, has stated that “the judiciary is itself an arm of the state — are all that may avoid a catastrophe” and that “…enthusiasm is rarely consistent with impartiality and never with the appearance of it.”

The delicate balance of power between the three institutions of the state may therefore be threatened by unchecked judicial intervention