Q. The evolution of judicial activism has made fundamental rights more meaningful. Comment.
A. Introduction: Indian judiciary has moved from a conservative institution to a more progressive one leading to an assertion of its institutional autonomy as well. Further, the incorporation of Due Process has asserted judiciary in matters that go beyond procedural questions of justice. Its move towards traditions of PIL and SAL has concretised an activist judiciary.
Judicial activism is a “philosophy of judicial decision – making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” The emergence of an activist Judiciary emerged on the basis of its power to review the acts of the other two branches of the government. It is a situation wherein the judiciary enters policy making and implementation in the related areas.
What is the need of Judicial Activism?
1. Failure of other organs to discharge their duties :- When the other political branches of the government viz. the legislature and the executive fail to discharge their respective functions. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive.
2. Taking proactive steps by the judiciary :- In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens cited as judicial activism.
3. Judicial romanticism:- Higher Judiciary is seen as a saviour
4. Article 142 and the idea of ‘complete justice’ :- Article 142 provides that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.”
Judicial activism & Fundamental Rights :
1. The Supreme Court has interpreted Article 32 in a very liberal manner in many cases in order to enforce fundamental rights.
2. Curative petition has been invented by the higher judiciary in order to prevent abuse of process or to cure gross miscarriage of justice. It is also maintainable in case of violation of the principles of natural justice.
3. Despite the fact that the law-making power in India lies primarily with the Parliament only, the Supreme Court is able to legislate under Article 142 of the Indian Constitution. This provision is responsible for the judicial legislation in India. Te same was seen in cases like yellowing of Taj Mahal, undertrials case, Union Carbide case etc.
4. In Vishaka v. State of Rajasthan case Vishaka guidelines were passed to save the women from sexual harassment at workplace. It was further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution.”
5. Indian Judiciary has played an active role in ensuring access to justice for the indigent persons, members belonging to socially and educationally backward classes, victims of human trafficking or victims of beggar, transgender, etc. To ensure this Supreme Court has invented Public Interest Litigation (PIL) path.
6. The judiciary in India is again responsible for the fundamental right to live in healthy environment, implementing Precautionary and Polluter Principles as basic features of the sustainable development, the application of doctrine of public trust for the protection and preservation of natural resources.
7. The Supreme Court recognized the fundamental right to education to children. In Bandhua Mukti Morcha v. Union of India, 39 the Supreme Court held that right to education is implicit in and flows from the right to life guaranteed under Article 21. Only after this Right of Children to Free & Compulsory Education Act, 2009 was passed.
8. In Supreme Court Bar Association v. Union of India, it was said therein that article 142 could not be used to supplant the existing law, but only to supplement the law.
Criticism of the idea of judicial activism:
1. Disturbs the balance between organs of government: According to some critics, judicial overreach is upsetting the constitutional balance among the three organs of state – the legislature, the executive and the judiciary.
2. As a challenge to basic structure: The practice has now grown into a situation where the idea of separation of powers, which should be considered a feature of the basic structure of the Constitution, is challenged.
3. Judiciary must perform its judicial functions : Activism can deteriorate into overreach if the judiciary considers itself the sole custodian of public interest, interprets public interest in its own fashion and seeks to force the legislature and the executive to implement its version of it.
4. The Court, in its anxiety to do justice in a particular case or matter, has failed to account for the far – reaching effects of its judgments, which may result in the deprivation of the rights of a multitude of individuals who are not before the court at that time such as the coal blocks allocation case or the ban of alcohol along national and state highways.
5. The Supreme Court’s rulings on National Eligibility – cum – Entrance Test (NEFT) i.e., single test for admissions in medical courses, reformation in Board for the Control of Cricket in India (BCCI), filling up of judges posts have been considered as judicial intervention by government.
Although, judicial review is legitimate domain of judiciary but then a limit or boundary has to be drawn. Judiciary, like all institutions in a democracy, should be accountable and know its own limits. It should not become a super parliament that frames laws and a super executive that seeks to implement them. The Supreme Court has perceived its role as one which would require it to ‘wipe away every tear from every eye’, but perhaps it is time that the use of this vast, unlimited power included checks and balances.