Judicial Activism – UPSC Notes – Indian Polity

The notion of judicial activism emerged in the United States and was initially formulated by American historian and educator Arthur Schlesinger Jr. in 1947. In India, the doctrine of judicial activism was introduced during the mid-1970s, with Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai establishing its groundwork within the country’s legal framework.

Meaning of Judicial Activism

Judicial activism refers to the proactive role played by the judiciary in protecting the rights of citizens and promoting justice within society. Essentially, it signifies the assertive stance taken by the judiciary to compel the other two branches of government—the legislature and the executive—to fulfill their constitutional duties.

Also termed as “judicial dynamism,” judicial activism stands in contrast to “judicial restraint,” which denotes the self-control exercised by the judiciary.

The following definitions encapsulate the essence of judicial activism:

1. “Judicial activism is a way of exercising judicial power that motivates judges to depart from normally practiced strict adherence to judicial precedent in favor of progressive and new social policies. It is commonly marked by decisions calling for social engineering, and occasionally these decisions represent intrusion into legislative and executive matters.”
2. “Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent, or are independent of, or in opposition to supposed constitutional or legislative intent.”

The concept of judicial activism is closely intertwined with that of Public Interest Litigation (PIL). The Supreme Court’s judicial activism is a significant factor in the rise of PIL. PIL, in essence, is a product of judicial activism and is perhaps the most prevalent form or manifestation thereof.

Justification of Judicial Activism

Dr. B.L. Wadehra outlines the rationale behind judicial activism as follows:

1. Collapse of Responsible Government: When the Legislature and Executive fail to fulfill their duties, leading to a loss of confidence in the Constitution and democracy among citizens.
2. Citizen Expectations: The populace relies on the judiciary to safeguard their rights and freedoms, creating immense pressure on the judiciary to aid the suffering masses.
3. Judicial Enthusiasm: Judges are inclined to participate in social reforms amid changing times, fostering Public Interest Litigation and liberalizing the principle of ‘Locus Standi.’
4. Legislative Vacuum: In areas lacking legislation, the court may engage in judicial legislation to address evolving social needs.
5. Constitutional Provisions: The Indian Constitution provides the judiciary ample scope to legislate or play an active role.

Similarly, Subhash Kashyap highlights situations where the judiciary may need to intervene beyond its usual jurisdiction:

1. Legislative Failure: When the legislature neglects its responsibilities.
2. Weak Government: In cases of a ‘hung’ legislature where the government is weak and preoccupied with survival, unable to make decisions.
3. Fear of Decision-making: Those in power may avoid making tough decisions, preferring to refer public issues to courts to delay or shift responsibility.
4. Failure to Protect Rights: When the legislature and executive fail to uphold citizens’ basic rights, such as decent living conditions and just laws.
5. Misuse of Courts: Strong authoritarian governments may misuse the courts for their agendas, as seen during emergency situations.
6. Court Weaknesses: Courts may succumb to human weaknesses like populism, media influence, or impractical decisions.

Dr. Vandana identifies trends reflecting judicial activism, including:

1. Expansion of Administrative Hearing Rights
2. Excessive Delegation without Limits
3. Increased Judicial Control over Discretionary Powers
4. Expansion of Judicial Review over Administration
5. Promotion of Transparent Governance
6. Indiscriminate Exercise of Contempt Power
7. Jurisdictional Overreach
8. Broad Interpretation Rules for Socio-economic Goals
9. Issuance of Unworkable Orders

Activators of Judicial Activism

Upendra Baxi, a distinguished jurist, has outlined the following categories of social/human rights activists who have spurred judicial activism:

1. Civil Rights Activists: Groups primarily advocating for civil and political rights issues.
2. People Rights Activists: Focused on social and economic rights, particularly in the context of state repression against people’s movements.
3. Consumer Rights Groups: Addressing issues of consumer rights while emphasizing the accountability of the political and economic systems.
4. Bonded Labour Groups: Advocating for the eradication of wage slavery in India through judicial activism.
5. Citizens for Environmental Action: Activating the judiciary to combat environmental degradation and pollution.
6. Citizen Groups against Large Irrigation Projects: Challenging mega irrigation projects and seeking intervention from the judiciary.
7. Rights of Child Groups: Addressing issues such as child labor, literacy rights, and the welfare of children in custodial institutions or born to sex workers.
8. Custodial Rights Groups: Advocating for the rights of prisoners, women in state custody, and individuals under preventive detention.
9. Poverty Rights Groups: Litigating issues related to drought relief, famine, and urban poverty.
10. Indigenous People’s Rights Groups: Advocating for the rights of forest dwellers, citizens under the Fifth and Sixth Schedules of the Indian Constitution, and identity rights.
11. Women’s Rights Groups: Focusing on gender equality, violence against women, including rape and dowry-related crimes.
12. Bar-based Groups: Addressing issues concerning the autonomy and accountability of the Indian judiciary.
13. Media Autonomy Groups: Advocating for the independence and accountability of the press and state-owned mass media.
14. Assorted Lawyer-Based Groups: Including influential lawyers’ groups advocating for various causes.
15. Assorted Individual Petitioners: Freelance activists filing petitions on diverse issues.

Apprehensions of Judicial Activism

Upendra Baxi, the same jurist, delineates a typology of fears stemming from judicial activism. He notes: “The facts entail invoking a wide range of fears. The invocation aims to instill a nervous rationality among India’s most conscientious justices.” He identifies the following categories of fears:

1. Ideological Fears: Concerns regarding the judiciary usurping powers from the legislature, executive, or other autonomous institutions in civil society.
2. Epistemic Fears: Doubts about the judiciary’s expertise in economic and scientific matters comparable to figures like Manmohan Singh or experts in atomic energy and scientific research.
3. Management Fears: Apprehensions about the judiciary’s ability to handle the increasing workload resulting from public interest litigation amidst a growing backlog of cases.
4. Legitimation Fears: Worries about the judiciary depleting its symbolic and instrumental authority by issuing orders in public interest litigation that the executive might bypass or ignore, potentially eroding people’s faith in the judiciary as a democratic recourse.
5. Democratic Fears: Questioning whether the proliferation of public interest litigation is nurturing democracy or diminishing its potential for the future.
6. Biographic Fears: Concerns about the future role and standing of judges in national affairs post-superannuation if they engage excessively in this type of litigation.

Judicial Activism vs. Judicial Restraint

Meaning of Judicial Restraint

In the United States, judicial activism and judicial restraint represent two contrasting judicial philosophies. Advocates of judicial restraint argue that judges should exercise strict limitations on their role; they should simply interpret the law without engaging in law-making activities, which are rightfully the domain of legislators and executives. Furthermore, judges must refrain from allowing their personal political beliefs or policy preferences to influence their judicial decisions. This perspective emphasizes understanding and adhering to the “original intent” of the Constitution’s authors and amendments as guiding principles for the courts.

Assumptions of Judicial Restraint

In the USA, the doctrine of judicial restraint is underpinned by the following six assumptions:

1. Democratic Deficiency of the Court: Due to its non-elective nature and perceived lack of responsiveness to popular will, the court should defer to the more democratically elected branches of government whenever possible.
2. Questionable Origins of Judicial Review: The judiciary’s significant power of judicial review, not explicitly granted by the Constitution, raises doubts.
3. Separation of Powers: Upholding the principle of separating powers between branches of government.
4. Federalism: Recognizing the division of powers between the national and state governments, requiring deference to state actions by the Court.
5. Pragmatic Dependence on Congress and Public Acceptance: Acknowledging the judiciary’s reliance on Congress for jurisdiction and resources, as well as public acceptance for its effectiveness, necessitating cautious boundary-keeping to avoid risks.
6. Aristocratic Principle: Upholding the notion that the judiciary, as a custodian of legal tradition, should not delve excessively into political matters, which are perceived as pertaining to power and influence, while law concerns reason and judgment.

Supreme Court Remarks

In a judgment delivered in December 2007, the Supreme Court of India emphasized the importance of judicial restraint and cautioned against courts overstepping their boundaries by assuming functions reserved for the legislature or the executive. Recognizing the fundamental principle of separation of powers enshrined in the Constitution, the Court underscored the need for mutual respect among the organs of the state.

The pertinent observations made by the Bench include:

1. The Court condemned instances where judges attempted to assume executive or legislative roles, labeling such actions as unconstitutional and a violation of judicial limits.
2. Emphasizing the importance of humility and modesty among judges, the Bench cautioned against judicial overreach and urged restraint, likening judges to public servants rather than monarchs.
3. Quoting Montesquieu’s ‘The Spirit of Laws,’ the Court warned against the dangers of disregarding the separation of powers, noting the judiciary’s susceptibility to criticism for overstepping its bounds.
4. Judicial activism, the Bench warned, should not transform into judicial adventurism, urging courts to operate within established constraints and refrain from imposing personal preferences.
5. Acknowledging the expertise of administrative authorities, the Court advised against unnecessary judicial interference, recognizing the distinct roles and competencies of each branch.
6. The Bench rejected the notion that judicial encroachment was justified by the perceived failures of the other branches, emphasizing the need for judicial self-restraint and accountability.
7. It highlighted the role of citizens in correcting governmental deficiencies through democratic means, such as elections and peaceful protests, rather than relying on judicial overreach.
8. The Court cautioned against judicial assumption of legislative or executive functions, citing constitutional principles and practical limitations on the judiciary’s expertise and resources.
9. Lastly, the Bench emphasized that judicial restraint is essential for maintaining the balance of power among the branches of government, promoting equality and independence while minimizing unnecessary interference in legislative and administrative matters.

FAQs on Judicial Activism:

1. What is judicial activism?
   • Judicial activism refers to the proactive role played by the judiciary in safeguarding citizens’ rights and promoting justice within society. It involves the judiciary taking assertive actions to compel the legislature and executive branches to fulfill their constitutional duties.
2. How does judicial activism differ from judicial restraint?
   • Judicial activism involves the judiciary making decisions that depart from established precedent or legislative intent to protect or expand individual rights. In contrast, judicial restraint advocates for judges to interpret laws narrowly, refrain from making new laws, and defer to the other branches of government whenever possible.
3. What justifies judicial activism?
   • Judicial activism is justified in situations where there is a collapse of responsible government, citizen expectations for the judiciary to safeguard rights, legislative vacuum, or failure of the legislature and executive to protect basic rights. Additionally, constitutional provisions and evolving social needs may necessitate judicial activism.
4. What are the trends reflecting judicial activism in India?
   • Trends reflecting judicial activism include the expansion of administrative hearing rights, increased judicial control over discretionary powers, promotion of transparent governance, and broad interpretation rules for socio-economic goals, among others.
5. Who are the activators of judicial activism?
   • Activators of judicial activism include civil rights activists, people rights activists, consumer rights groups, bonded labor groups, environmental action groups, and various others advocating for social, economic, and environmental justice through legal avenues.

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