1.1.
OVERVIEW
Judicial activism is when courts do not confine themselves to reasonable
interpretations of laws, but
instead create law. Alternatively, judicial activism is when courts do not
limit their ruling to the
dispute before them, but instead establish a new rule to apply broadly to
issues not presented in the
specific action. "Judicial activism" is when judge substitute their own
political opinions for the
applicable law, or when judges act like a legislature (legislating from
the bench) rather than like a
traditional court. In so doing, the court takes for itself the powers of
congress, rather than limiting
itself to the powers traditionally given to the judiciary. The expression
`Judicial Activism' signifies
the anxiety of courts to find out appropriate remedy to the aggrieved by
formulating a new rule to
settle the conflicting questions in the event of lawlessness or uncertain
laws. The Judicial Activism
in India can he witnessed with reference to the review power of the
Supreme Court under Article 32
and High Courts under Article 226 of the Constitution and particularly in
India it is seen in Public
Interest Litigation. The formulation of the new rules by the then courts
to settle the conflicting
positions that had arisen in certain cases was denoted as 'Judicial
Activism'.
Judicial activism has been more visible and more prominent under the
written constitutions of
America. In America, the judges adopt an activist approach based on the
principle that “judges not
only interpret laws but also make lawsâ€.1 Hence the American judges
liberally indulged in defining
unenumerated rights from the existing enumerated rights by applying the
theory of emanation.
Unlike in Britain the equity court law courts were merged with the passing
of the Judicature. Act,
I875. Delivering justice to a population of over one hundred crores does
not sound like and never
will be an easy task. It however, becomes increasingly difficult in a
country like India
The varied cultures, the environment, the languages and the religions of
the people of this country
are as balanced as walking a tight rope, one foot wrong can send the
entire country in disarray.
Seemingly overlapping powers of the administrators of the nation can cause
some serious trouble in
this regard. The executive, the legislature and the judiciary are the
three wings of the Indian
democracy. The constitution empowers them and burdens them with duties at
the same time. The
1
JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 655 (1995)
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legislature formulates the law, and the judiciary interprets it. Simple as
it may sound, studying the
ambit of the words “formulation†and “interpretation†can actually
leave the best in the business
confused. Most believe that the judiciary under the guise of interpreting
the law, goes a step beyond,
and ends up giving the country new binding law, which is usually different
from the existing one.
To deny judicial activism to the Judges would be to deny justice to the
people since it is the most
powerful weapon in the hands of the Judiciary to deliver justice, when the
other organs fail to do the
needful. Following Tagore, who said that if we shut our doors to prevent
entry of untruths, truths
would also be shut out thereby, it is said that if the Judges shut the
doors against judicial activism
and judicial law- making on the apprehension that these might on occasions
cause injustice, then
they would also shut out thereby the ushering in of a new order of
justice. Conscious of the
primordial fact the Constitution is the Supreme document, the mechanism
under which laws must
be made and governance of the country carried on, the judiciary must play
its activist role. No
constitutional value propounded by the judiciary should run counter to any
explicitly stated
constitutional obligations or rights. In the name of doing justice and
taking shelter under institutional
self-righteousness, the judiciary cannot act in a manner disturbing the
delicate balance between the
three wings of the State. Needless to emphasise that the strategy of PIL
must be used by the courts
carefully, prudently and with discrimination because any discriminate use
of it would bring it into
contempt both from the public and the government .Therefore, the correct
approach of the court in
PIL cases should be a judicious mix of restraint and activism determined
by the dictates of existing
realities. Any misuse of this strategy must be strongly discouraged by the
courts. Unlike the United
States Constitution, the Indian Constitution expressly provides for
judicial review in Article 13,
clause (1),that says that all laws that were in force in the territory of
India immediately before the
adoption of the Constitution, in so far as they are inconsistent with the
provisions containing the
fundamental rights, shall, to the extent of such inconsistency, be void.
Clause (2) of that article
further says that the states shall not make any law that takes away or
abridges any of the fundamental
rights, and any law made in contravention of the aforementioned mandate
shall, to the extent of the
contravention, be void. The Constitution also divides the legislative
power between the centre and
the states and forbids either of them to encroach upon the power of the
other.
