THE DISTURBING TRENDS OF JUDICIAL ACTIVISM

Judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government and government policies and also administration. It is a way through which justice is provided to the disadvantaged and aggrieved citizens. Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government.

In recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of public frustration with the democratic process. That is why the Supreme Court had to expand its jurisdiction by, at times, issuing novel directions to the executive.

Failure on part of the legislative and executive wings of the Government to provide ‘good governance’ makes judicial activism an imperative. Delivering justice to a population of over a billion does not sound like and never will be an easy task. It however becomes increasingly difficult in a country like India.

Judicial activism has arisen mainly due to the failure of the executive and legislatures to act. Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods. Thirdly, it occurs because the entire system has been plagued by ineffectiveness and inactiveness. The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance.

Some other situations that lead to judicial activism are follows:

1. When the legislature fails to discharge its responsibilities.
2. In case of a hung parliament where the government is very weak and instable.
3. When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration,
4. When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and
5. Finally, the court may on its own try to expand its jurisdiction and confer on themselves more func¬tions and powers.

Judicial activism is the practice going beyond the normal law for the jury. There are some very important cases where judicial activism plays an important role like Bhopal gas tragedy and the Jessica Lal Murder case are among the top two. Money and muscle power tried to win over the good. But lately, it was with the help of judicial activism that the case came to at least one decision.

Origins:

Its emergence can be traced back to 1893, when Justice Mahmood of Allahabad High Court delivered a dissenting judgement. It was a case of an under trial who could not afford to engage a lawyer, So the question was whether the court could decide his case by merely looking his papers, Justice Mahmood held that the pre-condition of the case being “heard” would be fulfilled only when somebody speaks.

Course of Judicial Activism:

In the first decade of independence, activism on part of the judiciary was almost nil with political stalwarts running the executive and the parliament functioning with great enthusiasm, judiciary went along with the executive. In the 50s through half of the 70s, the apex court wholly held a judicial and structural view of the constitution.

In the famous Keshavananda Bharati case, two years before the declaration of emergency, the Supreme Court declared that the Executive had no right to tamper with the Constitution and alter its fundamental features. But it could not avert the emergency declared by Mrs. Gandhi and it was only at the end of it that the apex court and the lower courts began to continuously intervene in executive as well as legislative areas.

The first major case of judicial activism through social action litigation was the Bihar under trials case. In 1980 it came in the form of a writ petition under article 21, by some professors of law revealing the barbaric conditions of detention in the Agra Protective Home, followed by a case against Delhi Women’s Home filed by a Delhi law faculty student and a social worker. Then three journalists filed a petition for the prohibition of the prostitution trade in which women were bought and sold as cattle.
Taking cognisance of custody deaths Supreme Court ordered the police not to handcuff a man arrested purely on suspicion, not to take a woman to the police station after dusk. High Court judges visited the prisons to check the living conditions of prisoners, in the year 1993, in just a month the apex court proclaimed judgment protecting the rights of innocents held in Hazaratbal mosque in Srinagar, defining the constitutional powers of the Chief Election Commissioner, threatening multi-crore rupees industries with closure if they continued to pollute the Ganga and Taj Mahal and brought all government and semi government bodies under the purview of the Consumer Protection Act.

In a 1994, judgement it asked the Chief of Army Staff to pay Rs. 6, 00,000 to the widow and two children of an army officer who died due to the callousness of the authorities concerned some 16 years before.

The controversial 27% reservation of jobs in Central Government and public sector undertakings was referred to the Supreme Court by the Rao Government. The court decision favoured 49% of jobs for backward castes and class but the ‘creamy layers; were exempted from this reservation. Simi­larly the court put a curb on the operation of capitation fee in colleges in Karnataka.

The Supreme Court giving directions to the CBI and summoning the head of the CBI to report on the hawala case reveals the breakdown of other machineries of the government. The court interfer­ence with the CBI working became inevitable in the wake of the tactics of delay and technical evasion that was undertaken by the investigative agencies.

WAY AHEAD:

The Judiciary cannot take over the functions of the Executive. The Courts themselves must display prudence and moderation and be conscious of the need for comity of instrumentalities as basic to good governance. Judicial activism has to be welcomed and its implications assimilated in letter and spirit. An activist Court is surely far more effective than a legal positivist conservative Court to protect the society against legislative adventurism and executive tyranny. When our chosen representatives have failed to give us a welfare state, Judiciary plays an active role. In judicial activism, the judge places his final decision with his heart and mind, which is emotionally handled.

By: Mona Kaushal