Analysis of Judicial Activism

 Needless to say that the Executive, the Legislature and the Judiciary are the three pillars of Indian democracy. The Constitution empowers them and burdens them at the same time to perform their respective duties and obligations. The legislature formulates the law as per the policy articulated by the executive and the judiciary interprets the same. This is how the doctrine of separation of powers, bedrock of any functional yet liberal democracy actually operates and is a vital guarantee for upholding rule of law.

However, sometimes it is seen that the judiciary under the guise of interpreting the law goes a step beyond its Constitutional mandate and ends up legislating thereby usurping the legitimate function of the other organ of the government. The law which it gives in the process, is usually different from the existing law. This is what we call as judicial activism.

Nevertheless, there is justification for judicial activism in India or elsewhere. In the contemporary era, it is felt that the legislature and the executive have increasingly failed to discharge their respective duties. Ideally, the legislature and the executive are the custodians of honest public life. They should indeed remove the mask which the corrupt and the inefficient wear and they are the one who should initiate against those who steal, cheat and deceive the public. But when the custodians themselves compromise with corruption and inefficiency, the judiciary has no option but to step in to set the things right.

As rightly observed by a constitutional expert, the judicial activism become a justified activism on the part of the judiciary: "When the legislature fails to perform its responsibilities;
When those in power may be afraid of taking bold and hard decisions for fear of losing power or for electoral compulsions; and may have public issues referred to courts in order to buy time and consequently delay decisions ....and pass the odium of strong decision making on to the courts... when the legislature and the executive fail to protect the basic rights of the citizens such as right to life with dignity, right to clean environment and so on… Under all these circumstances, the judicial activism per se becomes a sort of necessary evil and must not set any limits for itself because the situations and circumstances can be legion." 
As such, judicial activism must be extended to reign in BCCI, performing an important public function in a cricket loving country like India, punishing officials and demoralizing bureaucracy as a class, pulls up the Election Commission of India to introduce electoral reforms especially cleansing Indian politics from criminal elements, ordering the closure of liquor vends along the vicinity of national highways to check road accidental mortality due to drunken driving, ordering CBI inquiries into scandals, crimes and custodial deaths and so on the list is endless where judicial activism can possibly intrude in.

Fallout of judicial activism: Some of the valid apprehensions against judicial activism may be cited as below:

1. Violation of the principle of separation of powers which the judiciary has itself held to be a basic feature of the Constitution. If the trend remains unabated, the legislature may also step in the judicial domain to decide the cases pending for decades in the courts.
2. Ideological fear regarding the intent of the judiciary whether, it is trying to usurp the power of the legislature, the executive or any other autonomous institution in a civil society in its quest to establish judicial hegemony.
3. Epistemic fear unraveling the fact that the judiciary is omniscient, having enough knowledge even in some of the most technical areas as economic or scientific matters,
4. Management fears pointing to the fact that has the judiciary enough manpower to handle already burgeoning pile of pending cases before it if it keeps itself occupied with unnecessary litigation in the name of judicial activism,
5. Legitimating fears highlighting the fact that the judiciary may be causing a depletion of its moral, symbolic and instrumental authority by passing orders in public interest litigation which the executive may bypass or ignore. If this happens, it will make a big dent on the judiciary’s image thereby shaking people’s faith in the judiciary who consider it as a last democratic recourse against legislative or executive inaction…

Amidst the various pros and cons of judicial activism, the only viable alternative for a peaceful coexistence of all three organs of the government is the judicial restraint as far as possible. Let the people decide and correct the legislative or executive lapses through their valuable franchise in the next general elections or to set these organs right by resorting to various democratic options such as civil society debates and peaceful demonstrations. Hence, the remedy is not in the judiciary taking over the legislative or executive functions because that will not only violate the delicate balance (separation of powers) enshrined in the Constitution, but also raises valid question regarding judiciary’s expertise and resources to perform those specialized functions which fall within the legislative or executive domain…

By: Chandan Sharma