The term Judicial activism’ was coined for the first time by Arthur Schlesinger Jr in his article ‘The Supreme Court: 1947’, published in Fortune magazine in 1947. The history of judicial activism dates back to 1803 when the concept of judicial review was evolved by Chief Justice Marshall in celebrated case of Marbury vs Madison. The emergence of judicial review gave birth to a new movement which is known as judicial activism. Judicial activism refers to a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions. The Constitution of India divides the powers of the government into three branches i.e. legislature, executive and judiciary. It is when the judiciary steps into the shoes of the executive and the legislature and embarks on the work of law making rather than interpreting laws, it is deemed to be judicial activism.
Unlike American Constitution, Indian Constitution itself provides scope or space for emergence of judicial activism by virtue of Articles 13, 32, 226, 141 and 142. Article 13 conferred wide power of judicial review to the Apex Court. Article 32 and Article 226 makes the Supreme Court and High Court respectively as the protector and guarantor of the Fundamental Rights. Article 141 indicates that the power of the Supreme Court is to declare the validity and constitutionality of law and not enact it, but in the course of its function to interpret the law, it alters the law. Article 142 enables the Supreme Court in exercise of its jurisdiction to pass such order or make such order as is necessary for doing complete justice in any cause or matter pending before it.
The causes which give rise to judicial activism include expansion of rights of hearing in the administrative process, excessive delegation without limitation, expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when none exist, over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives and passing of orders which are unworkable.
The term judicial activism was explained and recognised by the Supreme Court in Golaknath’s case wherein the court laid down the judicial principle of prospective overruling by giving wider beneficial interpretation of Article 13 of the Constitution. But in real sense, the history of judicial activism in India began in late seventies with the introduction of Public Interest Litigation (PIL).
The concept of PIL in India was started by justice Krishna Iyer and justice PN Bhagwati. The term ‘Public Interest Litigation’ means any litigation conducted for the benefit of public or for removal of some public grievance. In simple words, it means any citizen seeking public welfare can move the court for the public cause by filing a petition in the Supreme Court. The concept of PIL is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Justice Bhagwati in SP Gupta vs Union of India case 1981 (judges transfer case) firmly established the validity of the Public Interest Litigation.
The famous case of judicial Activism in India is the majority judgement in the Keshavananda Bharati case (the Fundamental Rights case). Further the case of National Human Rights Commission vs State of Arunachal Pradesh, 2G Spectrum case 2012 are important cases of judicial activism. If we look at the decision given by the Supreme Court in several PIL, it is evident that most of the PIL extends to environmental pollution, convicted prisoners, under trials, personal liberty, corruption etc. The court has given several important directions to the executive as well as to the legislature at the instance of the PIL.
It is often contended that the PIL strategy is a status-quo approach of the court to avoid any change in the system. Another criticism is that judicial activism is coming to conflict with the concept of separation of power. It is also believed that the PIL will further aggravate the issue of pending cases in the court. According to another view, the misuse of PIL has reached ridiculous stage and petitions are filed over petty issues like student-teacher strike, shortage of buses, painting of road signs and so on. Judicial activism in India, in its truest sense, dates back to the commencement of the Constitution. Hence, the study of judicial activism in India from the historical perspective is confined from the period-1950 to 1977, the period of 1978 onwards being the post-emergency era or the present perspective.
Judicial activism has risen mainly due to the failure of the executive and legislatures to act according to the laws framed and bills passed. Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods and promises as expected by the citizens of this country. Thirdly, it occurs because the entire system has been plagued by ineffectiveness and inactiveness. The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance.
Article 50 under DPSPs talks about separating judiciary from the executive in the public services of the state. This means that both Judiciary and Executive should not interfere in their respective domains. Judiciary should remember this guideline of the Constitution at the time of delivering judicial decisions. Many a times it has been seen that in the name of justice and judicial activism, judiciary has overreached its domain and entered in the legislative domains e.g. banning liquor shops on National Highways. These types of orders have the character of a law which is exclusively a domain of legislature. However, under Article 142, Supreme Court can do anything in the course of complete justice.
During the past decade, many instances of judicial activism have gained prominence. Bhopal gas tragedy and the Jessica Lal murder case are among the top two ones. The latter was open and shut case for all. Money and muscle power tried to win over the good. But lately, it was with the help of judicial activism that the case came to a strong decision. In the 1980s, two remarkable developments in the Indian legal system provided a strong impetus to judicial activism in India. There was a broadening of existing environmental laws in the country and judicial activity through public interest litigation began in earnest in India.
Recently, Members of Parliament united against “judicial activism” criticising the judiciary for allegedly interfering in day-to-day administration of the government. In view of such allegations and to prevent ‘judicial activism’ being converted into judicial overreach’, the Supreme Court issued the following directions
- The court must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
- The court should prima facie verify the credentials of the petitioner before entertaining a PIL.
- The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
In a nutshell, the power of judicial review is recognised as a part of the basic structure of the Indian Constitution. The activist role of the judiciary is implicit in the said power. Judicial activism is absolutely necessary for democracy because without an alert and enlightened judiciary, the democracy will be reduced to an empty shell. When our chosen representatives have failed to give us a welfare state, let it spring from the judiciary. Only thing the judiciary must keep in mind is that while going to deliver justice to common man, it must not overstep the limitations prescribed by sacrosant, i.e. the Constitution.