INTRODUCTION:
Judicial Activism is a powerful weapon which has been used by a skillful soldier he knows well how to use or when to use. Judiciary is a third pillar of democracy. When the judiciary assesses their role correctly in his system, duty, role in order, that is called judicial activism with the judiciary check and balance on legislature, executive, or check the constitutional duty is followed up by all institutions. Role of judiciary interpreter of constitution, protector of fundamental rights, resolution of disputes. These three are very important roles of the judiciary. Judicial activism has had manifold impacts on the political system. It has democratized the judicial system by giving not just to individuals but also group access to the court. judicial activism has a dynamic approach. To ensure Doctrine of check and balance. Genesis of judicial activism evolved in the US year [1] 1803 “Marbury v/s Madison” case US supreme court said that “it is emphatically the province and duty of the judicial department to say what the law is”. In India [ Doctrine of check and balance] is an inherent part of Indian constitution
1. Judiciary
2. Legislature
3. Executive
Are established from different aspects. These three are check and balance on all of them. Separation of power in India is not strict or straight because of this check and balance in Article 142 says that [ to issue [2]direction and guidelines for implementing and protecting the fundamental rights in the absence of any enactment]. The previous discussion amply supports the notion that "judicial activism" relates to a broader idea. The phrase's meaning is unclear. All of it cannot be encapsulated in a single, succinct definition. Judicial activism can be described and understood in a variety of ways. Over the past few years, judges of the Supreme Court and High Courts have issued a number of controversial decisions that have provoked vehement discussion. The definition of "judicial activism" is still up for debate, though.
OBJECT OF STUDY:
● To research India's judicial activism's evolution.
● To analyze the need of Judicial Activism with respect to Indian prospective.
HYPOTHESIS:
In India, there has been an increase in proactive and innovative steps towards society due to issues prevalent in the nation. Such concern has eventually led to the growth of judicial activism and has had an impact in Indian society.
RESEARCH METHODOLOGY:
The current study focuses mostly on doctrine and analysis. retaining it in mind. The researcher has read numerous studies, e-journals, and web references. The pertinent information is gathered from secondary sources.
LITERATURE REVIEW:
Article[s]:
● Vishal Jain, “judicial activism” The author in this article analyzed judicial activism and its concept. How judiciary groom herself by judicial activism
● Naveen Talwar, “The article is an insight into judicial activism, its background, and its evolution in India” The author seeks to explain in this article about the origin and development of judicial activism and its evolution in India. Transformation of activism overreach.
● Akshaya Chintala, “Analyze the importance of judicial activism and judicial reform in India” The author has expressed its view about the future of judicial activism or its reform.
CONCEPT OF JUDICIAL ACTIVISM:
The judiciary is a separate institution. It operates under the parameters of the Indian constitution, which is based on the idea of separation of powers. It uses judicial activism to interpret the supreme constitutional document. The fundamental and constitutional rights of the populace are safeguarded by the Indian Supreme Court. Justice Mehmood of the Allahabad High Court made a dissenting ruling in 1893 that planted the seeds of judicial activism in India. The case featured an undertrial who couldn't afford legal representation, and the idea of judicial activism was first presented in the United States of America. The notion of judicial activism was first established in India in the middle of the 1970s. Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and Justice D A Desai. It is being said that these were the people who laid the foundation of Judicial Activism in India. Judicial activism is a proactive role played by the judiciary to protect the rights of the citizens on the access of the legislation and executive. Judiciary which promotes social, economic or any sort of justice for the people of India for the society as a whole is Judicial Activism. This judicial activism also known as judicial dynamism or judicial enthusiasm - sou motive judges. The Constitution also gives many powers and rights to the judiciary. According to article 32 [3] and 226 [4] Any fundamental right under Article 32 of the Indian Constitution may be implemented by an order or writ issued by the supreme court, according to the constitution. Every citizen has the right to file a lawsuit directly with the supreme court of India. According to Article 226 of the Indian Constitution, High Courts have the authority to write or issue any appropriate order for the enforcement of fundamental and other legal rights. The Supreme Court's authority under article 32 is exceeded by article 226. The Indian Constitution's cornerstones are articles 32 and 226. In addition, Article 227 gave the High Court control over tribunals, special courts, and lesser courts. When applicable, Article 136 of the Indian Constitution The highest court uses its special authority when there has been great injustice or when there is a substantial legal question. A case may be decided in keeping with fairness, equity, and moral faith using the discretionary power granted by Article 136. The most crucial clause in the Indian constitution regarding judicial activism is Article 142, which grants the Supreme Court the power to issue an order to guarantee that full justice is served in the relevant case.
NEED OF JUDICIAL ACTIVISM:
Development of judicial activism by PIL. PIL gives power to Judicial activism. These two items have completely changed how the judiciary operates and improved its accessibility to the public. It affects convicts, workers, and people positively. PIL Social action litigation, public interest litigation, and judicial activism. In the normal process of law, a person can only file a court case if they have personally suffered harm. Around 1979, the court established a new trend when it chose to take a case where the plaintiff was not the harmed party but rather someone else who filed the action on their behalf [5]. This opened the doors for many cases where public-spirited individuals and nonprofit organizations requested judicial action to safeguard their rights, improve the conditions of the destitute, protect the environment, and numerous additional matters of public interest. PIL has grown to be the most significant tool for judicial activism.
Judicial Activism - some early PIL [6]
“ Hussainara Khatoon & Ors vs Home secretary, state of Bihar [7] , on 9 march ,1979”
The importance of this lawsuit may be found in the fact that it led to the release of approximately 40,000 defendants who were awaiting trial. Several lawyers and socially conscious individuals were motivated by the case to advocate for the underprivileged and use the expansive power of public interest litigation to achieve justice.
“Sunil Batra vs Delhi Administration, 20 December, 1979 [8]” Laws from the time of British colonization were exposed in this case, as they were in several other cases. It was plainly shown to be out of date and detrimental to the development of a contemporary India since it was inconsistent with the global human rights legislation in effect at the time. The responsibilities and obligations of jail superintendents were also brought into sharp focus by this case. It brought to light the dangers that could result from neglecting one's duties. Here, concerns about decent housing conditions, access to court officials without charge, and proper medical care for convicts were all highlighted. It also signaled a change in how inmates were treated, with District Judge, Session Judge, High Court, or Supreme Court nominations for attorneys going forward. Court for interviewing visits and private communications with convicts regarding, among other things, how they are treated in cells.
Analyses of the term judicial activism become the more popular description of the role of the judiciary. Role of PIL - individuals as parts of the society must have the right to seek justice wherever such rights were violated. judiciary started considering rights of those action who cannot easily approach the court.
ANALYSIS ON DEVELOPMENT OF JUDICIAL ACTIVISM:
The political system has been greatly impacted by judicial activism. By granting access to the court to groups as well as to individuals, it has democratized the judicial system. It has compelled executive responsibility and attempted to make the election system far more open and fairer by requiring candidates to submit affidavits prior to running for office. The judiciary is a separate institution operating within the confines of the Indian constitution, which is based on the idea of the separation of power. Using judicial activism, it interprets the supreme constitution. The fundamental and legal rights of the populace are safeguarded by the Indian Supreme Court.
Judicial activism, according to Black's Law Dictionary [9], is a way of thinking about how judges make decisions where they let their own opinions about public policy and other things influence them. In India, judicial activism means that the highest court and the high court, but not the lower court, have the power to declare laws invalid and unconstitutional if they violate or are inconsistent with one or more constitutional provisions. The State is accountable for ensuring that there is justice, freedom, equality, and fraternity throughout the country, in accordance with the Indian Constitution. Each person's fundamental rights must be upheld by the State, and the Directive Principles of State Policy must be followed. In accordance with the Indian Constitution, the intrinsic power to check on the state's operations and prevent it from evading its responsibilities. The Indian Constitution has traditionally been seen as being in the custody and care of the judiciary in India. As mandated by the constitution, the Indian court has forcefully defended the people's fundamental rights whenever required against the state's unfair, unreasonable, and unequal acts or inactions. In terms of judicial activism, the court has made tremendous strides in favoring human rights, from defending the rights of working women to implementing the core principles of sustainable development. The judiciary has impacted every aspect of human existence and shown that it is beneficial for the poor by shifting away from the "Locus Standi" assumption and more towards public interest litigation (PIL). The High Court. The Supreme Court argued that economic backwardness was the main factor contributing to social backwardness in the case of “Balaji v. State of Mysore” (1963). Caste should not be used to measure backwardness, the court concluded, distinguishing caste from class. It was also determined that the reserved category's share of the total should not be greater than 50%. The subsets of Articles 15 and 16 as well as Article 14 were deemed to be mandatory. In the case of “Chitralekha v. State of Mysore”, the court placed similar restrictions on the reservation (1964).
JUDICIAL OVERREACH:
Judicial overreach refers to the judiciary's enormous task. Courts overstep their bounds when they advise lawmakers on policy. The doctrine of separation of powers discusses the legislative, executive, and judicial branches; each has distinct powers or domain areas. Now that the court constantly intervenes and acts, it is no longer regarded as judicial activism but rather as an incursion or an overreach of the judiciary. There is a very fine line between judicial activism and overreach that is not recognized when it occurs. Judicial overreach is when the judiciary goes too far.
Judicial overreach cases - ● Imposition of patriotism in the national anthem case: The Supreme Court of India issued its ruling in the case of "Shyam Narayan Chouskey vs. Union of India" [10] in December 2016, making the playing of the national anthem a requirement in all Indian movie theaters.
● After the central board for film certificate [CBFC] certified the picture jolly LLB 2, there was proactive censorship in this case. The Bombay High Court received a petition alleging that this movie breached section 5B of the Cinematograph Act of 1952, which prohibits the certification of movies that contain slander or courtroom disobedience. The court mandated the removal of four movie scenes and gave the CBFC new certification instructions. According to the court's justification, this was disparaging of the legal profession.
● Liquor prohibition case [11]: The Supreme Court has ruled that the selling of alcohol at retail establishments is prohibited due to PILs about road safety. Involvement of the judiciary in governmental directive principles is against the separation of powers established by our constitution because it is not the role of the court to compel the government to carry out the order. Additionally, judicial activism has come under fire on various instances. Under the cover of "judicial activism," the judiciary frequently merges personal prejudice and emotion with the law. Another criticism is that judicial activism turns the idea of the three departments of government's division of powers on its head. The judiciary frequently engages in judicial overreach and engages in activities in an administrative area.
IMPACT OF JUDICIAL ACTIVISM:
In India ‘doctrine of check and balance is an inherent part of constitution judiciary, legislature, executive is established from different aspects the work of these three are different to each other or they work on thee own working limits they cannot inter in the others limits or cross limits these three are check and balance on all over them. Separation of power the check and balance in article 142 says - to issue direction and guidelines for implementing and protecting the fundamental rights in the absence of any enactment. The Judiciary can issue the guidelines. From this article the judiciary gets the power. [12] Judicial activism case laws -
● “A.K. Gopalan v. State of Madras” [13] The court determined that Article 21 of the Constitution Did not mandate that Indian courts follow the rules of due process of law in the AK Gopalan v. State of Madras case. Therefore, the Court maintained the Preventive Custody Act of 1950, with the exception of Section 14, which stated that the detainee's communication of the reasons for his detention and any arguments he makes in opposition to those reasons cannot be revealed in a legal proceeding.
● “I.C. Golaknath v. State of Punjab” [14]
In 1965, the Supreme Court was asked to hear this matter. The family filed a challenge under Article 32 contesting the 1953 Punjab Act on the grounds that it violated their constitutional rights to own property, engage in any occupation, and be treated equally before the law (Article 19(f) and (g)) (Article I,14). The seventeenth amendment, which included the Punjab Act in the ninth schedule, was challenged as being out of bounds (beyond the powers). One of the important instances in Indian history is Golaknath, I.C. v. State of Punjab. The court established the doctrine of basic structure's jurisprudence with its decision in this case. The court determined in 1967 that the Parliament cannot curtail any of the fundamental rights enshrined under the constitution of India.
● “Maneka Gandhi v. Union of India” [15] According to the courts, any regulation that restricts someone's personal freedom must pass the constitutional constitutionality test set forth in Articles 21, 14, and 19. No one is denied the right to speak up in court since article 21 also protects the principles of natural justice. In addition, the "golden triangle, “comprised of articles 14, 19, and 21, must be invoked in order to invalidate any state action or law.
● “Kesavananda Bharati v. State of Kerala” [16] The Kesavananda Bharati v. State of Kerala case is a significant one in India's constitutional and judicial history since it definitively answered the question of whether the Parliament has unrestricted, unlimited power to modify the Constitution. The "fundamental structure theory" of the Indian Constitution was outlined in the Kesavananda Bharati judgment. The Kesavananda Bharati v. State of Kerala case is extremely significant for a number of reasons, one of which is that it was heard by the Supreme Court of India's largest-ever bench, which was made up of thirteen judges.
● “Mohd. Ahmed Khan v. Shah Bano Begum” [17]
A Triple Talaq ruling was rendered in this case, which, in my opinion, was a historic
judgment since it supports the public's confidence in the judicial process because, in this case, "Rights and fairness has won over religion." Because of the fair, brave, and courageous ruling that was reached, this litigation, in my view, was a turning point in the court system. The need of paying divorced Muslim women maintenance who are unable to find employment and sustain themselves has been brought to light by this decision. The Delhi Municipal Corporation was not given any guidelines on how to sanitize Delhi by the Supreme Court.
● “Almitra H. Patel v. Union of India” [18] (2000), contending that the topic was beyond its jurisdiction and that all it could do was ask the institution to uphold its legal commitments.
SUGGESTION:
Judicial activism is a very important tool of the judiciary; it plays a massive role in Indian judicial system. The effectiveness of civil justice can be increased by lowering excessive litigation rates. The average time of trials is significantly shortened when the amount of new court proceedings per capita is reduced, which varies among nations from the almost ten to less least 1 case per 100 people. To ensure that reports of bribery and other misbehavior may be made in a secure manner, strong whistleblowers policies and efficient complaint procedures must also be in place. In addition, judges have a right to due process, a fair and transparent disciplinary procedure, and appeals reviews in any prosecutions.
CONCLUSION:
Nowadays when society is evolving faster than laws, when the lives of citizens are suffering from the pandemics and global warming and the life of citizens becomes difficult with inflation and rising unemployment among other things. When the air was polluted changing of climate may cause heat waves poor harvest, floods, the development of citizen become difficult.
Judiciary have to protect the constitutional and fundamental rights of the citizens. It is the accountability of the judiciary to secure the citizens and protect their rights from being violated for the judiciary is not possible to be inactive. Judiciary should remain active to execute their power properly. Moreover, in countries that respected the rule of law, the capacity to participate in judicial activism became a prerequisite for the survival of an independent judiciary, and other contemporary democracies swiftly followed, giving rise to the idea of judicial activism.
REFERENCES:
1. Naveen Talwar, insight into judicial activism, its background and its evolution in India, ipleaders, [Aug.5,2022] https://blog.ipleaders.in/judicial-activism/ 2. National Law University Delhi [2 nov,2022]
3. The Constitution of India, art-32.is the enforcement of fundamental rights 4. The Constitution of India, art.- 226. Power of High Courts to issue certain writs
5. Akshaya Chintala, The importance of judicial activism and judicial reform in India, ipleader, [Oct.30,2020] https://blog.ipleaders.in/introduction-to-judicial-activism-and-judicial-reforms/ 6. Vishal Jain, judicial activism, legal service India e-journals, [APR, 23 ,2020] https://www.legalserviceindia.com/legal/article-2063-judicial-activism.html 7. 1979 AIR a1369
8. 1980 AIR 1579
9. Vishal Jain, judicial activism, April,23,2020 https://www.legalserviceindia.com/legal/article-2063-judicial-activism.html
10. AIR 2003 MP,233
11. Behram Khurshed Pesikaka vs The State Of Bombay.Reference
12. Abhishek Negi, Judicial activism and judicial restraint, legal service India,[May.4,2022] http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html 13. AIR 1950 SC 27 14. 1967 AIR 1643
15 AIR 1978 SC 597
16 AIR 1973 SC 1461
17 AIR 1985 SC 945
18 AIR 2000 SC 1726
Author ~ Adv. Syed Anamta Gulzar
LLM Student,
at Jagran Lakecity University, Bhopal, MP.