Back to Roots : Judicial Activism

JUDICIAL ACTIVISM:

Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.

In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.

DURING THE last two decades, judicial activism has played a major role in protecting the rights and freedoms of individuals, as guaranteed under the constitution. After the landmark decision in the Maneka Gandhi case, courts have assumed an activist posture and come forward to the rescue of aggrieved citizens. In a number of cases, subsequent to the Maneka Gandhi case, the judiciary interpreted the constitutional provision in its wider possible meaning to protect basic civil liberties and fundamental rights.

During this period, our judiciary developed the concept of social action litigation and public interest litigation by discarding the traditional and self-imposed limitations on its own jurisdiction. In 1975, Justice VR Krishna Iyer for the first time in the Bar Council of India case, advocated the liberal interpretation of locus standi in public interest litigation. He observed that in a developing country like India, public-oriented litigation better fulfils the rule of law if it is to run close to the rule of life.

The concept of public interest litigation took a clearer shape through the remarkable judgement in what is popularly known as the case of the judges’ transfer. In this case, Justice Bhagwati said that the traditional rule was of ancient vintage and arose during an era when private law dominated the scene. Justice Bhagwati observed that there is an urgent need to innovate new methods and devise new strategies for the purpose of providing access to justice to the large masses of people who are denied their human rights and to whom freedom and liberty have no meaning. The courts have a duty to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for general or group interest.

Public interest litigation and judicial activism has touched almost every aspect of life. Be it the case of bonded labour, rehabilitation of freed bonded labour, payment of minimum wages, protection of pavement and slum dwellers, juvenile offenders, child labour, illegal detentions, torture and maltreatment of woman in police lock-up, the implementation of various provisions of the constitution, environment problems, the courts took cognisance of each case and laid down various judgements to protect the basic human rights of each and every member of society.

Today, with the vast change in judicial process, the traditional rule of locus standi is replaced by group action litigation. No doubt law regulates the society, but some time society also regulates law. Changing aspirations of people also affects law. Constitutions, courts and other parts of the judicial system are made for common people. In the seventies, Justice Yeshwant Vishnu Chandrachud observed, “It is really the poor, starved and mindless millions who need the court protection for securing the enjoyment of human rights.”

Realising the fact that in spite of all constitutional provisions and other enactments, socio-economic justice remained a distant dream for the poor and down-trodden, Justice Bhagwati invites judges to use their power to further the cause of social justice. In his work ‘Social Action Litigation: The Indian Express’ Justice Bhagwati observed:

“Today, we find that in third world countries, there are large number of groups which are being subjected to exploitation, injustice and even violence. In this climate of conflict and injustice, judges have to play a positive role and they cannot content themselves by invoking the doctrine of self-restraint and passive interpretation. The judges in India have fortunately a most potent judicial power in their hands, namely the power of judicial review … The judiciary has to play a vital and important role not only in preventing the remedying abuse and misuse of power but also in eliminating exploitation and injustice.”

In the last, it can be easily concluded that judicial activism has played an important role in protecting human rights. In other words, it has indeed proved to be a boon to the victims of arbitrary, illegal and unconstitutional actions of state as well as of public servants. Right to life and personal liberty has been given a broader meaning to include all the essential rights for human life with dignity and those rights are easily made available through the channels of an activist judiciary. The right to life and personal liberty was elevated to the status of fundamental rights, which could not be abridged, defeated or taken away by the state.