INTRODUCTION
As a democratic country, India’s administrative system consists of three main organs namely, the Legislature, the Executive, and the Judiciary. The judiciary is the branch of government that interprets the law and resolves various conflicts and disputes arising between individuals and between the centre and the states. It administers justice to all citizens without any discrimination and it is often referred to as “the watchdog of democracy”. Independence of the judiciary is a sine qua non for upholding the constitutional values of a democracy. It safeguards the rights and liberties of individuals by enforcing fundamental rights, thus upholding the law. With the dynamics of society, the concept of judicial activism and judicial restraint emerged which have contributed to the advancement of the judiciary. The former concept is flexible and keeps evolving with time whereas the latter relies on strict interpretation of laws while defining the philosophy behind judicial decisions. A balanced practice of both judicial activism and judicial restraint is necessary due to the complexity of cases in the contemporary scenario. If one practice outweighs the other there are chances of disharmony between the organs of the government.
UNDERSTANDING JUDICIAL ACTIVISM:
Kesavananda Bharati v State of Kerala (1973)[1] landmark judgement by the Supreme Court is best known for judicial activism which developed the doctrine of basic structure. The executive cannot tamper and meddle with the basic structure of the constitution and fundamental features of the constitution cannot be amended and it has helped in ensuring that the power of the parliament to make amendments is not abused.
As per Black’s Law Dictionary, “judicial activism is judicial philosophy that motivates judges to depart from the traditional precedents in favour of progressive and new social policies”. Judicial activism states that judges should actively interpret and shape the law according to the changing dynamics of society. The judiciary is vested with powers by the constitution to address public grievances when the legislative fails to make such laws. Thus, judicial activism is linked with social welfare as the courts function proactively to protect individual rights and liberties and promote justice. In India, Judicial Activism acquired importance due to public interest litigation which was initially resorted to improve the conditions of the underprivileged and marginalized people who could not seek justice from the courts. In Hussainara Khatoon (I) v State of Bihar (1979)[2], a writ petition was filed for the release of under-trial prisoners. While practising judicial activism the Apex Court opined that the right to a speedy trial is a fundamental right under Article 21 as it accepted the article published in the Indian Express newspaper which reflected the inhumane conditions of undertrial prisoners.
RATIONALE BEHIND JUDICIAL ACTIVISM
Judicial Activism came into being because of the inaction and ineffectiveness of the legislature and the executive. The violation of basic human rights also led to judicial activism and in this scenario, the courts participated actively and took cognizance of public issues unaddressed by the government. Thus, the rationale behind judicial activism was to bring about desired social change and to protect individual rights. In Vishaka v State of Rajasthan(1997)[3], judicial activism was practiced by the Apex Court while giving guidelines for the appropriate treatment of women and preventing any sort of harassment that needs to be followed at workplaces. The court also said that until the parliament makes legislation for this issue the said guidelines of the court should be treated as a law. In National Legal Services Authority v. Union of India (2014)[4], the Supreme Court recognized the right to self-identify one’s gender and held that transgender persons have the right to be treated as their self-identified gender rather than their assigned gender at birth.
CRITICISMS OF JUDICIAL ACTIVISM
It has led to controversies about supremacy between Parliament and the Supreme Court. Excessive judicial activism can lead to Judicial overreach. Judicial overreach is when the judiciary interferes excessively with the matters of the legislature and the executive. Recurrent interventions by the judiciary tend to weaken the other organs of the government. Judicial overreach is undemocratic in nature. as it violates the principle of separation of powers. Thus, judicial overreach and judicial activism should have a fine line between them. Therefore, judicial activism should be practiced with judicial restraint. The Liquor ban (2017)[5] by the Supreme Court, in which the court ruled on a Public Interest Litigation(PIL) which was about road safety in 2017 had banned the sale of liquor at retail outlets, hotels, restaurants, and bars, that are within 500m of any national or state highway. These orders by the court were seen to conflict with the principle of separation of powers and it was contended that the decisions should be taken by the state government, as it was an administrative matter. In the case of Arjun Gopal v Union of India (2017)[6] The Supreme Court had fixed timings for setting off fireworks during Diwali and had banned the use of fireworks that are not environmentally friendly, despite there being no legal basis for these restrictions.
UNDERSTANDING JUDICIAL RESTRAINT
Judicial Restraint suggests judges should not act beyond the scope of powers and the functions assigned to them. The personal views of judges must not shape their verdicts. Legal principles, laws, and precedents alone must be followed to adjudicate a matter. Supporters of this theory contend that the role of judges should be limited and that the law-making role should be left to the legislature and the executives. Restraint must be practiced by courts such that Judicial Review should not lead to courts striking down laws unless they are deviating from constitutional values. This theory further suggests judges must not enact new laws or policies since it is ultra vires. Under this theory, judges should always try to decide cases based on: The original intent of those who wrote the constitution, Precedents and the court should leave policy making to other organs of the government. In Divisional Manager, Aravali Golf v Chander Hass & Anr. (2007)[7] the apex court held that judicial restraint should be exercised by all the courts and the doctrine of separation of powers should be respected by all organs of state. In S.R. Bommai v Union of India (1994)[8] it was held that judicial review is not possible in some cases, the matter being political. thus, the standards of the judiciary should not be applied to matters of politics, as the court shall avoid entering the political domain.
STRIKING THE BALANCE
The essence of Judicial activism is updating construction, for law must not remain stagnant and shall evolve with societal norms. Also, the judiciary would not be able to keep checks and balances on other organs if only restraint is followed. French philosopher Montesquieu proposed the doctrine of Separation of Powers and argued that if all three powers of government were concentrated in one single branch it would lead to a despotic government. Thus, there should be a proper distribution of powers between the Legislature, Executive, and judiciary. Article 121[9] of the Indian constitution states that the conduct of any judge of either the supreme court or high court for discussion is restricted in the parliament. Similarly, Article 212[10] restricts the power of courts to inquire into proceedings of the parliament. The judiciary must aim to strike a balance between activism and restraint. Only the balanced and nuanced approach between the two can make the judicial decision-making process fair and unbiased. For striking a balance it is important to consider the specific context and circumstances of each case to ensure that the judiciary fulfills its role of checks and balances on other organs while also being responsive to the needs of society.
CONCLUSION
While judicial activism helps in ensuring and addressing public grievances and issues, its excessive practice of it may take the form of judicial overreach which is undemocratic in nature. Judicial restraint helps in ensuring that precedents and the written law are only followed, and it adheres to a strict interpretation of the law. Such a practice cannot accompany itself with modern developing society as such practice can lead to stagnation of the evolution of a country. Thus, there is a need to strike a balance between both these approaches keeping in view the contemporary society and different facts of a case. The principle of separation of powers needs to be followed so that no organ encroaches upon the functions of another. Thus, the courts should equitably ensure access to justice by balancing both approaches and ensuring that the judiciary works in harmony with other organs of the government.
Author(s) Name: Simar Sarup Kaur (Jamia Millia Islamia)
References:
[1] Kesavananda Bharati v State of Kerala (1973) AIR 1461 SC
[2] Hussainara Khatoon v State of Bihar (1979) AIR 1369 SC
[3] Vishaka v State of Rajasthan (1997) AIR 3011 SC
[4] National Legal Services Authority v Union of India (2014) AIR 1863 SC
[5] State of Tamil Nadu v K.Balu (2017) 2 SCC 281
[6] Arjun Gopal v Union of India (2017) 16 SCC 280
[7] Aravali Golf Club v Chander Hass (2008) 1 SCC 683
[8] S.R. Bommai v Union of India (1994) AIR 1918 SC
[9] Constitution of India, 1950, art 121
[10] Constitution of India, 1950, art 212
