Blogs TMJ Special Top Stories

Is judicial activism the need of the hour?4 min read

August 26, 2015 3 min read

Is judicial activism the need of the hour?4 min read

Reading Time: 3 minutes

The Judiciary through its activist judges sees the constitution as a living being, giving them the power to interpret it differently and help pass judgements that truly help the public. It is the need of the hour for the Indian public, along with an effective Parliament to help keep the laws up with the pace of change demanded by the Indian public today. The judiciary in India has increasingly become the arm of the constitution that forms new laws in the country through, the role of an activist judiciary it has started playing since the 1970’s. The court has stepped into the role of creator of laws due to the vacuum created by the lack of laws being created the Parliament of India.

Judicial activism is defined as: “The practice in the judiciary of protecting or expanding individual rights through decisions that depart from the established precedent or are independent of or in opposition to supposed constitutional or legislative intent.”

According to noted legal scholar, Prof. Upendra Baxi: “Judicial activism is an ascriptive term. It means different things to different people. While some may exalt the term by describing it as judicial creativity, dynamism of the judges, bringing a revolution in the field of human rights and social welfare through enforcement of public duties etc., others have criticized the term by describing it as judicial extremism, judicial terrorism and judicial transgression into the domains of the other two organs of the state negating the constitutional spirit.”

In essence, judicial activism is when a judge uses his or her power to safeguard the interests of the public outside the realm of the existing laws. The ruling could be due to personal preference, emotions or public pressure that contributes to the final decision, rather than just the basic text of the law. Prof. Baxi explains this through defining judges as activist judges and non-activist judges. A non-activist judge, according to Prof. Baxi, follows the existing law and prefers stability to reform, while an activist judge understands the power he or she wields and uses it in a manner, which makes her rulings that of the people. In essence, Prof. Baxi says a non-activist judge is the judge of the political sovereign while the activist judge stands for the popular sovereign.

Judicial activism in India has led to numerous successes and some failures.  D.K. Basu v. State of Bengal is a good example where judicial activism has helped the people of this country. The case essentially led to the creation of something similar to the Miranda rights in India, where the police department has to go through various official procedures before completing the arrest of an individual. This landmark judgment brought into focus the treatment of prisoners by police officials, and their rights during lock-up and interrogation.

The thought behind this activism is that judges are allowed to interpret the laws in a manner, which allows the constitution of India to be a living document. It is susceptible to interpretation in the modern scenario, rather than just defending the laws formed 56 years ago in a different social scenario.

Those who argue against judicial activism, call it the tyranny of the judiciary and judicial extremism, as they are now entering the field of making laws that is the prerogative of the legislature. The former Prime Minister of India, Manmohan Singh, had even spoken out against judicial over-reach. In fact, the courts declared the available spectrum as a national resource, thereby nullifying the entire 2G-spectrum allocation process followed by the Telephone Regulatory Authority of India (TRAI). The Supreme Court was directly stepping
into the policy processes of the government, but did so taking into cognizance the view of the public and the national value of the spectrum. Such actions were called an over-reach by some quarters.

The basic premise of judicial activism allows the voiceless to have another forum to gain justice. With an activist court, the constitution takes a new form, which is truly in the interest of the people. The legislature has reached a standstill in the recent past where basic policy actions aren’t being passed by the Parliament due
to the new obstructionist nature of the opposition parties. It is unimaginable that the parliament would even discuss social policies and formulate new laws. Taking note of this, an activist judiciary is the best solution for the people today, as their needs are being heard and dealt with, at the very least.