Introduction:
It is a consented understanding that the main responsibility of the judiciary is to ensure justice is delivered. They have the power to interpret the existing laws and legislations, and create new laws through precedents. In many cases, the judiciary has extended the scope of the law, and interpreted the law in vague matters. This overreach of the judiciary in matters that don’t fall in its scope, can be termed as judicial activism.
In India, the judicial body is viewed as the protector of the Indian Constitution. In the process of protecting fundamental rights, as basic human rights, the Indian judiciary has shown a great mark in judicial activism.
Genesis of Judicial activism.
Through judicial review processes in the United Kingdom, the concept of Judicial activism first emerged. The idea of judicial review was first laid down in the case of Thomas Bonham v. College of Physicians case [1]. It refers to the power of the Court to review any piece of legislation, and deem it void if it is violative of any fundamental rights or human rights, or is not in consonance with what is laid down in the Constitution.
In the American perspective, the case of Marbury v. Madison [2] stands very significant, as it was the first time the US Supreme Court struck down a law, claiming it to be violative of the US Constitution.
However, in his article “The Supreme Court: 1947,” [3] written by Arthur Schlesinger Jr. and published in the January 1947 issue of Fortune Magazine, Schlesinger used the precise phrase “judicial activism” to describe his actions. He adopted the phrase to designate the American Supreme Court judges at the time as judicial activists, self-control advocates, and judges who fell somewhere in the middle between the two categories.
Definitions of Judicial Activism.
There exists no exact definition of the term “judicial activism”.In a broad and simple sense, it refers to the judiciary’s constructive participation in resolving issues brought to its attention by the executive or legislative branches in order to ensure the effective coordination of all three essential pillars.
Judicial activism, according to Black’s Law Dictionary, is a way of thinking about how judges make decisions where they let their own opinions about public policy, among other things, influence them.
In India, judicial activism means that the Supreme Court and the high courts, but not the lower courts, have the power to declare laws unconstitutional and void if they violate or are inconsistent with one or more constitutional provisions.
Judicial Activism in India.
Initially more of a technocratic court, the Supreme Court of India has started to become increasingly involved in constitutional interpretation. The court transformed into an activist by its involvement and interpretation of the law and legislation, but the process took years and was slow. The court’s early and rash declaration regarding the purpose and character of judicial review is where judicial activism first emerged.
For the first ten years following independence, judicial activism virtually disappeared as the executive and legislative branches of the government actively controlled and meddled with the judiciary’s operations. The Apex court began to examine the judicial and structural views of the constitution in the 1970s.
The first time the Indian judiciary showed instances of judicial activism was in the case of Keshavanand Bharti v. State of Kerala [4]. It is a case that took place right before the declaration of the emergency. The Indian Supreme Court ruled that the executive branch lacked the authority to interfere with or alter the constitution’s fundamental principles. Although the judiciary was unable to stop the urgency imposed by the then-prime minister Indira Gandhi, the idea of judicial activism began to gain more traction as a result.
Important cases of Judicial Activism.
Since the judgement of the Keshavanand Bharti case, there was a growth of judicial activism across the country. There have been many landmark judgements passed through this concept. Some of the most famous judgements with regards to judicial activism are:
- ADM Jabalpur v. Shivkant Shukla [5]
This case produced the Supreme Court ruling on judicial activism that was the most divisive. The majority of the bench decided that in circumstances of extreme emergencies, such those that occurred between 1975 and 1977, a legal process may be developed that would allow for the taking of even human life. The decision’s author, Justice Chandrachud, came under fire for writing a pro-government opinion, yet the legal theory he offered was a superb example of judicial activism. The legitimacy of legislation mandating acceptance in order to retain the nation’s sovereignty in the event of internal or external assault has been maintained by Justice Chandrachud’s interpretation of Article 21.
- Hussainara Khatoon (I) v. State of Bihar [6]
The newspaper articles reflected the inhumane and savage treatment of the detainees awaiting trial. Numerous defendants had already served the maximum amount of time in prison without being charged with a crime. Under article 21 of the Indian Constitution, a lawyer filed a writ petition. The supreme court acknowledged it, declared that the right to a fast trial is a fundamental freedom, and ordered the state to offer free legal services to those who are now being held without bail or final release in order to enable them to obtain justice.
- Sunil Batra v. Delhi Administration [7]
The court used its arbitrary jurisdiction to treat a letter that was written by a prisoner as a petition. According to the letter, the head warden brutally hurt and abused a different prisoner. The court ruled that technicalities could not prevent it from upholding peoples’ civil liberties.
- Golaknath v. State of Punjab [8]
In the concerned case,when addressing the constitutional legitimacy of the 17th Amendment to the Constitution, the Supreme Court of India invented the concept of “prospective overruling” by ruling that Parliament lacked the ability to change Part III of the Constitution or to curtail any of the essential rights.
Conclusion
In conclusion, judicial activism in India has been crucial in advancing social justice and reshaping the country’s legal system. The Indian judiciary has successfully filled the gaps created by the legislative and executive branches through proactive judicial interventions, assuring the protection of fundamental rights and holding the government responsible for its deeds. The rights of marginalised people, environmental protection, gender equality, and corruption have all been addressed by judicial activism.
A balance must be struck between the judiciary’s function as a rights protector and the democratic norms of separation of powers, even when judicial activism has obvious advantages. The overuse of judicial activism may result in judicial overreach and intrusion into the purview of the elected officials.
[1] Britannica, The Editors of Encyclopaedia. “Bonham’s Case”. Encyclopedia Britannica, 21 Nov. 2013, https://www.britannica.com/event/Bonhams-Case. Accessed 16 July 2023.
[2] 5 U.S. 137 (1803)
[3] Arthur. M. Schlesinger(1947), ‘The Supreme Court, 1947’, Fortune Magazine
[4] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970
[5] ADM Jabalpur v. Shivkant Shukla , AIR 1976 SC 1207
[6] Hussainara Khatoon (I) v. State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532
[7] Sunil Batra v. Delhi Administration, (1978) 4 SCC 409
[8] Golaknath v. State of Punjab 1967 AIR 1643
