Judicial Activism

The judiciary plays an important role in upholding and promoting the rights of citizens in a country. It is the proactive role played by the Judiciary in the protection of the rights of citizens and in the promotion of justice in the society. It implies, active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country. This entails, sometimes overstepping into the territories of the executive. Judicial Activism is also known as “Judicial Dynamism”. It is the antithesis of “Judicial Restraint”, which means the self-contro exeercised by the judiciary.

Judicial Activism is the assertive role played by the judiciary to force the other two organs of the government to discharge their constitutional duties.

Methods of Judicial Activism are:

There are various methods of judicial activism that are followed in India. They are:

1. Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
2. PIL ( Public Interest Litigation)
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

• It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
• Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian Judiciary has been considered as the guardian and protector of the Indian Constitution.
• There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
• According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
• Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973.

• In 1979, the SC ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.
• Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
• Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process of allocation was flawed.
• The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
• The SC invoked terror laws against alleged money launderer Hasan Ali Khan.

What are the advantages and disadvantages of Judicial Activism?

Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being carried out.

Advantages of Judicial Activism:

• It sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
• If in case, the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
• The trust factor is placed in judges and hence it provides insights into the issues. The oath of bringing justice to the country by the judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits.
• It keeps a check on the misuse of power by the state government.
• Also, it helps address problems hastily where the legislature gets stuck in taking decisions.

Disadvantages of Judicial Activism: 

• Firstly, when it surpasses its power to stop and misuse or abuse of power by the government, it limits the functioning of the government.
• It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law.
• The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives.
• Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Difference between Judicial Review, Judicial Activism and Judicial Overreach: