Article Posted By: rachnayadavPosted on : 9/4/2015 12:00:00 AM
Judicial Activism in India
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Judicial Activism in India
Introduction
As to its meaning, Judicial Activism is not a distinctly separate concept from usual judicial activities.
According to Justice J.S. Verma of the Supreme Court "The role of judiciary in interpreting existing laws according to the needs of times and filling in the gaps appears to be the true meaning of judicial activism."
Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws.
If we have a judiciary it is to be hoped that its members will be active, but the term activism of course implies intervention as well.
Plainly speaking intervention to Executive and Legislation functions done by judiciary out of its general power boundaries so as to preserve the rights of people is called as Judicial Activism
Origins:
Its emergence can be traced to long time back but in context of post independence era, below cases were substantial inputs for the Judicial Activism in India.
Golaknath v. State Of Punjab was a 1967 Indian Supreme Court case, in which the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.
But through 24th amendment of constitution parliament reversed the ruling of Golakhnath case and upheld that parliament has powers to amend any provisions of fundamental rights.
In Kesavananda Bharati case a landmark decision was made which outlined that though parliament has “wide" powers, it did not have the power to destroy or change the basic elements or fundamental features of the constitution.
These above developments ignited the flame of judicial activism in India.
Constitution & Judicial activism
Constitution is the supreme document of our land. All institutions follow the position and power given by constitution to them.
There are three wings or pillars of our democracy.
Judiciary
Legislature
Executive
Judiciary is given the sole right and responsibility to interpret the constitution. Executive and Legislature are not vested with this right to interpret constitution.
Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the needs of contemporary society.
The Indian constitution allows a person to move the Supreme Court directly for redress of violation of basic right under Article 32 though Public Interest Litigation. If the decisions of the coordinate branches of government are constitutionally correct, the judiciary has no right to interfere. But if a decision violates a right of Indian people it is not constitutionally correct, hence judicial intervention is valid.
Justice P.N. Bhagwati gave new heights to the concepts of PIL by merely accepting a letter sent to chief justice for PIL.
Need of the society:
Failure on part of the legislative and executive wings of the Government to provide ‘good governance’ makes judicial activism an imperative.
There are few pertinent questions which raises the need of judicial activism.
If government fails to act what should be done. How should a person get relief?
There was some case where one of the activists filed a petition to declare Ram Setu as the national heritage. In this case government neither agreed nor denied the activist demand.
In such cases where Executive does not takes a stand, judiciary is there to take stand and intervene.
If there is something arbitrary or illegal going on.
If government takes decision without any basis and where smells a illegal things going on behind the scenes then there becomes imperative for judiciary to intervene and stop.
In one instance tamilnadu chief minister on occasion of her birthday decided to release hundreds of criminals. Finally Judiciary activism had to intervene and stopped this illegal act.
If there is a case of your rights being infringed?
There can be denial/infringement of your fundamental rights. Judicial activism serves as the protector of common man’s interest. While National emergency was proclaimed during Indira Gandhi’s regime there were violations of fundamental rights. Finally Judiciary through its inherent powers maintained the rights of people.
Judicial activism becomes necessary to put a check on tyranny born out of a temporary political majority in legislature which might otherwise seek to rewrite the constitution in order to be entrenched in power.
Judiciary through its timely intervention and decision making always tried to strengthen the other pillars i.e. executive and legislation and thus strengthened the nation.
Critics :
However, just as the ministers, bureaucrats and legislators are not above criticism, similarly, the judiciary also cannot be presumed to be beyond the pole of scrutiny. There are fears in some quarters that the judiciary is overstepping its authority by interfering into spheres reserved for legislation and the executive.
Critics raise following points in their support:
Lack of clarity
Judicial activism crosses thin line which we also geneally refer as Laxman Rekha and is called as judicial overreaching. There should be some marked boundary definition.
Lack of consistency
Generally there are 2 judges bench, rarely 3 judges bench and very rarely 5 judges bench.
Thus 2 people can be of one opinion and other 2 can be of other opinion. Thus there looks conflict in consistency of the opinion.
Conflict situation
In case of conflict scenario between Judiciary and Executive, Judiciary who is party itself to proceeding will be the decider as well. This does not look fair.
Conclusion :
The Judiciary cannot take over the functions of the Executive. But if the health of the nation goes down and the person who are responsible to restore the conditions are not taking appropriate actions then their becomes duty of judiciary to secure social, economic and political justice for all citizens as mentioned in preamble of the constitution.
Judiciary should also be conscious of its limits as per the preamble.
As people say that Laxman Rekha should not be crossed but some times if required it should be because if sita would not have crossed Laxman Rekha, Ravana would have never killed.
Judicial Activism in India
Share this post
Judicial Activism in India
Introduction
As to its meaning, Judicial Activism is not a distinctly separate concept from usual judicial activities.
According to Justice J.S. Verma of the Supreme Court "The role of judiciary in interpreting existing laws according to the needs of times and filling in the gaps appears to be the true meaning of judicial activism."
Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws.
If we have a judiciary it is to be hoped that its members will be active, but the term activism of course implies intervention as well.
Plainly speaking intervention to Executive and Legislation functions done by judiciary out of its general power boundaries so as to preserve the rights of people is called as Judicial Activism
Origins:
Its emergence can be traced to long time back but in context of post independence era, below cases were substantial inputs for the Judicial Activism in India.
Golaknath v. State Of Punjab was a 1967 Indian Supreme Court case, in which the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.
But through 24th amendment of constitution parliament reversed the ruling of Golakhnath case and upheld that parliament has powers to amend any provisions of fundamental rights.
In Kesavananda Bharati case a landmark decision was made which outlined that though parliament has “wide" powers, it did not have the power to destroy or change the basic elements or fundamental features of the constitution.
These above developments ignited the flame of judicial activism in India.
Constitution & Judicial activism
Constitution is the supreme document of our land. All institutions follow the position and power given by constitution to them.
There are three wings or pillars of our democracy.
Judiciary is given the sole right and responsibility to interpret the constitution. Executive and Legislature are not vested with this right to interpret constitution.
Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the needs of contemporary society.
The Indian constitution allows a person to move the Supreme Court directly for redress of violation of basic right under Article 32 though Public Interest Litigation. If the decisions of the coordinate branches of government are constitutionally correct, the judiciary has no right to interfere. But if a decision violates a right of Indian people it is not constitutionally correct, hence judicial intervention is valid.
Justice P.N. Bhagwati gave new heights to the concepts of PIL by merely accepting a letter sent to chief justice for PIL.
Need of the society:
Failure on part of the legislative and executive wings of the Government to provide ‘good governance’ makes judicial activism an imperative.
There are few pertinent questions which raises the need of judicial activism.
There was some case where one of the activists filed a petition to declare Ram Setu as the national heritage. In this case government neither agreed nor denied the activist demand.
In such cases where Executive does not takes a stand, judiciary is there to take stand and intervene.
If government takes decision without any basis and where smells a illegal things going on behind the scenes then there becomes imperative for judiciary to intervene and stop.
In one instance tamilnadu chief minister on occasion of her birthday decided to release hundreds of criminals. Finally Judiciary activism had to intervene and stopped this illegal act.
There can be denial/infringement of your fundamental rights. Judicial activism serves as the protector of common man’s interest. While National emergency was proclaimed during Indira Gandhi’s regime there were violations of fundamental rights. Finally Judiciary through its inherent powers maintained the rights of people.
Judicial activism becomes necessary to put a check on tyranny born out of a temporary political majority in legislature which might otherwise seek to rewrite the constitution in order to be entrenched in power.
Judiciary through its timely intervention and decision making always tried to strengthen the other pillars i.e. executive and legislation and thus strengthened the nation.
Critics :
However, just as the ministers, bureaucrats and legislators are not above criticism, similarly, the judiciary also cannot be presumed to be beyond the pole of scrutiny. There are fears in some quarters that the judiciary is overstepping its authority by interfering into spheres reserved for legislation and the executive.
Critics raise following points in their support:
Judicial activism crosses thin line which we also geneally refer as Laxman Rekha and is called as judicial overreaching. There should be some marked boundary definition.
Generally there are 2 judges bench, rarely 3 judges bench and very rarely 5 judges bench.
Thus 2 people can be of one opinion and other 2 can be of other opinion. Thus there looks conflict in consistency of the opinion.
In case of conflict scenario between Judiciary and Executive, Judiciary who is party itself to proceeding will be the decider as well. This does not look fair.
Conclusion :
The Judiciary cannot take over the functions of the Executive. But if the health of the nation goes down and the person who are responsible to restore the conditions are not taking appropriate actions then their becomes duty of judiciary to secure social, economic and political justice for all citizens as mentioned in preamble of the constitution.
Judiciary should also be conscious of its limits as per the preamble.
As people say that Laxman Rekha should not be crossed but some times if required it should be because if sita would not have crossed Laxman Rekha, Ravana would have never killed.
References :
http://iasexamportal.com/civilservices/courses/essay-writing/judicial-activism-indian-democracy-2004
http://www.academia.edu/2148025/JUDICIAL_ACTIVISM_IN_INDIA_MEANING_AND_IMPLICATIONS
http://tribune.com.pk/story/576075/judicial-activism-in-india/
http://www.yourarticlelibrary.com/essay/judicial-activism-in-india-origins-meaning-causes-and-course/24914/
http://www.publishyourarticles.net/knowledge-hub/essay/legal-essay-on-judicial-activism.html
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