Judicial Activism in India

IN NEWS:

• The Supreme Court has put in place a 12-member National Task Force (NTF), to facilitate a public health response to the pandemic based on scientific and specialised domain knowledge.

JUDICIAL ACTIVISM Vs JUDICIAL OUTREACH:

• According to Black's Law Dictionary judicial activism is a " judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies”.
• Judicial Activism means the rulings of the court based on political and personal rational and prudence of the Judges presiding over the issue, rather than current or existing legislation.
• The line between judicial activism and judicial overreach is very narrow. In simple terms, when judicial activism crosses its limits and becomes judicial adventurism it is known as judicial overreach.

CONSTITUTIONAL PROVISIONS:

• Judicial activism in India implies the authority of the Supreme Court and the high courts, but not the subordinate courts, to declare the regulations unconstitutional and void if they breach or if the legislation is incompatible with one or more of the constitutional clauses.
• The Courts in India resorts to the four major provisions of the Constitution, i.e. Articles 13, 32, 226 and 142, to justify its power of Judicial Review.
  • Article 13 read with Articles 32 and 226 of the Indian Constitution gives the power of judicial review to the higher judiciary to declare, any legislative, executive or administrative action, void if it is in contravention with the Constitution.
  • From Article 142, the Supreme Court derives overarching powers to perform the functions of Executive and legislative in order to bring about complete justice. This provision is responsible for the judicial legislation in India.

WHY JUDICIAL ACTIVISM ARISE? 

• Inefficiency in the other branches of governance, like corruption, delays, non-responsive, red-tapism etc.
• Failure of Legislative to come out with law in a number of contemporary issues, due to factors such as absenteeism, coalition politics, legislative's apathy etc.
• Rising complexities of laws in the backdrop of globalization.
• Growing number of the Public interest litigations (PILs) due to increased consciousness among people and strong role played by the media and civil society organizations.

INSTANCES OF JUDICIAL ACTIVISM:

• Maneka Gandhi vs Union of India case: The court ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’.
• Union Carbide Corporation vs Union of India: Supreme Court awarded the compensation of $470 million to the victims. Post Union Carbide-Bhopal gas case, government created legislations such as environmental Acts, air Act, water Act, rules, regulations, etc.
• Vishakha vs State of Rajasthan: The court laid down guidelines for protection of women from sexual harassment at workplace, popularly known as the Vishakha guidelines.
• Cleansing of the Taj Mahal: The marbles of the iconic place were yellowing on account of sulphur fumes from the surrounding industries. On account of the court’s efforts over a period of years, the heritage has been restored to its original beauty.
• Hussainara Khatoon v. State of Bihar: Undertrials were suffering in jails for greater periods than the maximum punishment which could have been inflicted on them, as their very existence was forgotten by the criminal justice system. The court directed the State to provide free legal facilities to the under trials so that they could get bail or final release.
• Olga Tellis Vs Union of India case: The court said that the outlines of Article 21 which provides right to life also include the Right to livelihood as well as shelter. The Supreme Court ruled that it is the state’s responsibility to rehabilitate people instead of displacing them.
• Vineet Narain vs Union of India: The Supreme Court issued directions to the government in order to bring transparency and accountability in the Central Bureau of Investigation (CBI).

INSTANCES OF JUDICIAL OVERREACH:

• Coal block allocation case: In 2014, the SC cancelled the allocation of coal blocks granted from 1993 onwards, along with a penalty of ?295 per tonne of coal already mined over the years. This was a severe setback to India’s coal mining sector.
• The ban on the sale of alcohol along national and State highways: Acting on petitions filed against allowing liquor vendors to operate along National highways, the Supreme Court ordered a total ban on the sale of liquor within 500m of national and state highways throughout the country.
• Creation of Fund for drought management: In Swaraj Abhiyan vs Union of India, the apex court directed the Union government to set up a National Disaster Mitigation Fund within three months. This direction raised questions, since the National and state Disaster Response Funds were in existence and the year’s appropriation bill was already passed.
• Appointment of judges: Based on its own judgements which are collectively known as the Three Judges Cases, the court has effectively taken away the constitutional right of the President of India to appoint judges. It also declared the National Judicial Appointments Commission (NJAC) Act and the 99^th Constitutional Amendment unconstitutional as violating judicial independence.
• Reforming Board for the BCCI: The Supreme Court had set up Mudgal committee and the Lodha Panel to investigate the betting charges and suggest reforms in the Board for the Control of Cricket in India (BCCI). This is surprising since the BCCI is a private body.
• Police reforms: in Prakash Singh v. Union of India,2006, the apex court pushed through new legislation for governing police forces to be passed by States across India. The Court instructed the Central and State Governments to comply with a set of seven directives laying down practical mechanisms to kick-start police reform.

SIGNIFICANCE OF JUDICIAL REVIEW:

• Supplements the legislative: Judicial legislations can fill the statutory vacuum in some critical areas. For eg: The Vishaka guidelines laid the foundation for the creation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• Upholds constitution: It also helps in the protection of the spirit of the constitution by giving a wider definition to a number of significant articles of the constitution such as article 21.
• Acts as a measure of check and balance: Judicial review allows courts to prevent any actions that could potentially undermine the constitution.
• Improve people’s trust: Through effective interventions, judicial activism makes the judiciary vibrant, updated and thereby enhances people’s trust on the judicial system.
• Ensures good governance: Through judicial activism judiciary is trying to promote more transparency and accountability in governance.

CRITICISM OF JUDICIAL REVIEW:

• Undermines People’s will: The core of democracy that envisages the rule of majority. In contrast, the judiciary is an unelected institution. In the exercise of the power of Judicial Review, when the judiciary declares a legislation to be unconstitutional, it overturns the popular will that is reflected in the enactment of a popularly elected legislature.
• Violates separation of power: Separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. But judiciary making laws violates this principle.
• Accountability of Judges: The executive is accountable to the Parliament, which is accountable to the people. However, unlike representatives, a judge is not elected by people which diminishes the sense of accountability in him/her.
• Quality of decisions: The judges pronouncing any law may lack the expertise to make it. Their decisions are largely based on their personal views and opinions on the issue rather than on objective data or studies.
• Affects executive’s functioning: The executive functions on policy making and policy implementation based upon the 4F i.e. Fund, function, framework and functionary. Judicial overreach may have a negative impact upon the executive. Eg: In ordering the liquor ban along highways, the court rejected serious reservations about the excise revenues of states and potential large-scale unemployment.
• Promotes poor governance: Activism by the courts promotes inefficiency in the legislative, as the legislative can leave inconvenient decisions for the courts to take up. Also, repeated interventions of courts can diminish the faith of the people in the elected government.

CONCLUSION:

The Supreme Court in Aravali Golf Course v. Chander Haas had observed that Judges must know their limits and must not try to run the Government and that it must respect the other branches.

There has to be a clear balance between judicial activism and judicial overreach through the exercise of judicial restraint, which can aid in ensuring that justice is assured without overstepping the powers bestowed to the judiciary by the Constitution of India.

A possible way of attaining this is by establishing clear guidelines. For eg: The guidelines can mandate deadlines to be given for the government to formulate laws on a matter, before the court could legislate on them.

PRACTICE QUESTION:

Q. Activism of the Indian judiciary has served as an invaluable tool in strengthening our democracy. Explain with suitable examples?