CONNECTING THE DOTS: JUDICIAL ACTIVISM #8 (SECOND PART)

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1 TOPIC: JUDICIAL ACTIVISM (Part #2)
2 For Part 1 click here
3 Please click here:

TOPIC: JUDICIAL ACTIVISM (Part #2)

For Part 1 click here

 

SHORT FORM OF TERM USED

 

  • SC — Supreme Court.
  • HC — High Court.
  • FR — Fundamental Rights
  • JR — Judicial Review
  • JA — Judicial Activism
  • PIL — Public Interest Litigation.

 

 

JUDICIAL ACTIVISM ( emanates from power of Judicial Review (PART1)

 

INTRODUCTION

 

  1. Concept originated in USA.
  2. In India, Doctrine introduced in mid 1970s
  3. Main proponents of it were Justice Krishna Iyer and Justice PN Bhagwati.

 

Meaning

  1. Proactive role played by Judiciary in the protection of rights of citizens and in the promotion of Justice in the society
  2. Assertive role played by the Judiciary to force Legislature and Executive to discharge their Constitutional duties.
  3. It is antithesis to Judicial Restraint which means self control exercised by Judiciary.

 

Link between JA and PIL

  • JA is the reason for the rise of PIL.
  • PIL is the most popular form of JA.

 

REASONS FOR RISE IN JA

 

  1. Expansion of Article 21 – Right to Life.

Eg. Right to Privacy declared as a fundamental right under Art. 21.

  1. Riding level of Consciousness about human rights and good governance. Eg. Civil society organization filing PILs.
  2. Epistolary Jurisdiction: Supreme Court accepting plea of people on the basis of letter written by them to SC.
  3. Relaxing of Locus Standi: In simple terms it means that an individual can file a case on someone else behalf. Eg. NGOs filing cases for weaker section of society.
  4. The inability of the government (Legislature + Executive) in discharging their responsibilities.
  5. Judicial Enthusiasm: Judiciary taking the lead in initiating social reform. Eg Triple talaq ruling.

 

POSITIVE IMPLICATION OF JA

 

  1. It has checked and limited the discretion of Administration.

Eg. Direction given by SC on Police Encounters

  1. Expansion of Rights under Article 21. Eg. Right to Privacy case, Right to education
  2. Helped checking inaction of Government.

Eg. Current sealing drive in Delhi ordered by SC

  1. Legislative avatar of Judiciary eg. Vishaka guidelines, Prakash Singh case (police reform)
  2. Executive avatar of Judiciary: Vineet Narain case 1998 where SC gave direction on selection of CVC, regulation of acid sale, BCCI reform etc.
  3. Engaged in ‘Dialogic Activism’: eg. SC asked Government on Steps taken by it for students in Australia when there were reports of violence against them.

 

ADVERSE IMPACT OF JA

 

  1. JA is good for short term as it fills the void of non-functioning of legislature and executive. However, in the long run it impacts ‘Separation of Power’ between various organs of the state.
  2. It can degenerate into Judicial Overreach.

Eg.  Judiciary decision on playing National Anthem in Cinemas, banning of diesel vehicles in Delhi.

  1. Make Administration more cautious which leads to Red-tapism.
  2. Abuse of PIL. (Will be covered at length later)
  3. Most of the cases that the judiciary deals and can be termed as judicial activism cater to the interests of middle class eg Nursery Admissions in Delhi.

JA was primarily meant for the rights of weaker sections of Society

 

DIFFERENCE BETWEEN JA and JUDICIAL OVERREACH

 

  • The conventional role of Judiciary is to enforce laws laid down by Legislature in accordance with Constitution.
  • JA has redefined the Power equation between the three organs of the state
  • However, JA does not mean Judiciary is inclined to expand it’s power.
  • It’s more about a positive role played by Judiciary owing to improper functioning of Legislature and Executive.
  • JA when usurps the Power of other two organs of the state becomes Judicial Overreach.
  • Examples of Judicial Overreach:

>Direction by SC on playing National Anthem in Cinemas.

>Banning of Liquor shops on National Highways.

 

There is a thin line between JA and JO. It is in the interest of the country if Judges restrain from crossing this line too often and overtly, as it might have serious repercussions for the healthy functioning of democracy.

 

FOOD FOR THOUGHT

How could Judicial Overreach harm the long term function of democratic institutions in the country?

Please click here:

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Hemant Bhatt
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