Judicial activism

Judicial activism and its development

Judicial Activism does not carry any statutory definition. It connotes that function of the judiciary which represents its active role in promoting justice.   Judicial activism, to define broadly, is the assumption of an active role on the part of the Judiciary.  In the words of Justice J.S. Verma, Judicial Activism must necessarily mean “the active process of implementation of the rule of law, essential for the preservation of a functional democracy”. The jurist, speaking  of  judicial activism in the modern context, explores how justice to the individual or group of individuals or to the society in general is ensured through the active participation of the court, particularly as against public agencies.

Every proceedings before the Court must reflect judicial initiative, involvement, resourcefulness, concern which can be packed up in one word namely judicial activism.  It means the moving spirit of justice.  It is to be noted that the source of this judicial activism is the crusading spirit of the concerned judge in delivering the substantial and speedy justice which we would said as Judicial crusadism.

The rise of judicial activism has been result of deep public frustration with successive dysfunctional and apathetic, often corrupt governments.  The higher judiciary has been looked upon by sections of the public as the last hope for redress against administrative and governmental apathy.  It is important to note that the Supreme court of India exercises a profound impact on the day-to-day lives of over a billion people.

Meaning of Judicial Review:

It refers to the courts inherent power to review the action of other branches or levels of Government, and in particular, the courts power to invalidate legislatives and executive action as being unconstitutional.  In England, there was judicial review of administrative action, but the judiciary do not have the power to review the acts of Parliament since it is supreme.  The English people felt secure with an omnipotent parliament because they had full faith in the strength of their democracy.  Judicial review means scrutiny of the acts of other organs of the government by the courts to make sure that they act within the limits of their competence as drawn by the Constitution.  It is to be found in various countries.  Basically it was originated in England, where the courts reviewed the acts of the executive to ensure that they lay within the limits of its competence drawn by the parliamentary statutes.

The juristic basis of judicial review is the doctrine of ultra vires as was decided in the case of Boddington v. British transport Police (1999) 2AC 143.  The ultra vires principle was used under English law to achieve the courts function of policing the boundaries stipulated by Parliament.  This principle was used to achieve the object in two ways one in a narrow sense, that the agency must have the legal capacity to act in relation to the topic in question.  While in a broader sense, the ultra vires principle has been used as the vehicle through which to impose a number of constraints on the way in which power given to an agency has been exercised to ensure that the agency has complied with the rules of fair procedure, that discretionary power has been exercised to obtain proper and not improper purposes, that the power has been exercised reasonably and proportionately to its object.

Judicial Review in U.S.A:

Judicial review of legislation has been acknowledge as a product of American Constitutional law. The doctrine of Judicial review was for the first time propounded by Supreme Court of America.  Originally, the Constitution of U.S.A. did not contain an express provision for judicial review.  The power of judicial review was assumed by the Marbury v. Madison 2L Ed. 60, which is the famous historic case. In this case, Chief Justice Marshall held that the power to invalidate the acts of congress, if they are contrary to the Constitution, was implied in the written Constitution.  This assertion of power criticized severely. The main thrust of criticism was that an unelected court was to censor the legislation enacted by an elected legislature.  The observations of C.J., Marshall pertinent to note that “ the constitution is either superior paramount law unchangeable by the ordinary means or it is on  a level with ordinary legislative Acts, and the like other Acts is alterable when the legislature shall please to alter  it …. Certainly all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation and, consequently, the theory of every such Government must be that an Act of the legislature repugnant to the Constitution is void”.

The debate on whether the courts should have the power to decide questions of policy has always been fought vehemently. Judicial Activism has always evoked varying types of responses.  When the court took a series of objections to the regulation of the economy taken in the year 1930’s, the liberals criticized it as being reactionary.  Subsequent to the decision of the Supreme Court in Brown v. Board of Education 347 US.483, the conservatives threatened to impeach the judges, effigies of Chief Justice Warren were burnt.  Such responses have arisen from disapproval of the judicial decision by particular groups.  The liberals disapproved of the courts policy against state intervention during the year 1930’s and the conservatives liked the same policy.  On the other hand, the liberals welcomed the decisions of the Warren court because they concurred with its policies of desegregation, liberalization of the rights of the accused criminal and concern for freedom of speech and freedom of religion.

Judicial Review in India:

Judicial activism is nothing but the review of legislative and executive action.  If such legislative and executive action undermines the basic structure of the Constitution, it results in infringement of any of the fundamental rights.  Dr. B.R.Ambedkar, the chief architect of the Constitution of India, observed that judicial review is absolutely necessary.  In particular, the provision of judicial review and writ jurisdiction should give immediate relief against the infringement of fundamental rights.  While discharging its functions, the judiciary cannot ignore the socio-economic conditions of the contemporary society. Thus the judiciary in India is kept under obligation to balance the scale of justice for protecting the human rights in general and the rights of weaker sections and women in particular.  Unlike in the United States of America, judicial review in India was provided expressly in the Article 13 (1) of the Indian Constitution which says that all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void. While the Article 13(2) of the constitution of India, says that the State shall not make any law that takes away or abridges any of the fundamental rights and any law made in contravention of the above mandate shall, to the extent of the contravention, be void.

The earliest case in which court asserted its activist role was in A.K.Gopalan v. State of Madras, stating that its power of judicial review was inherent in the very nature of the written constitution. The court observed that Articles 13(1) and (2) of the Indian Constitution provides for judicial review in explicit terms.  The court has always power to declare the enactment as invalid if it transgresses the limits within the framework of the Constitution of India. The Apex court of India starts a positivist tendency an strictly confined to the rules of liberalization.   In the above case, the court acts in a liberal view to interpret the Article 21 of the Constitution rather than the customized narrow construction to worlds such as personal liberty and procedure established by law.  In matters of personal liberty, the courts observed judicial restraint and legitimated the actions of the government.  Later on the court seems to have become bolder, and it soon challenged parliament’s power to amend the constitution.  This brought a bout a major confrontation between the court and parliament.

While speaking about the judicial review, in the case of State of Madras v. V.G.Row AIR 1952 SC 196, Justice Pathanjali Sastri observed that “in all circumstances of a given case, it is inevitable that the social philosophy and the sale of values of judges participating in the decision should play an important part, and the limit to their interference with the legislative judgment in such case can only be dictated by their sense of responsibility and self restraint the sobering reflection that the constitution is meant not only for people”.  Thus, it makes it clear that even the first generation of judges of the Supreme Court were conscious of the activist role of the court…”.

Every judge must play an active role in discharge of his duties as adjudicator of disputes.  His role as an interpreter of law and dispenser of justice according to law should not be allowed to be diminished either because of the perceived notion of the other two wings of the State i.e the legislature and the execution or any section of the public.  But, this alone and by itself cannot be termed as judicial activism.  The role of the judge in interpreting law has been graphically described thus, judges must be cautious and sometimes bold. Judges must respect both the tradition of the past and the convenience of the present.  Judges must reconcile liberty and authority, the whole and its parts.  Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.  The expanding horizon of judicial review has taken in its fold the concept of socio-economic justice.

In order to find safeguard the interests of public and peoples rights such as their fundamental rights and to maintain quality of life, the Supreme Court of India on many occasions condemned arbitrary actions and necessary protection has been provided to pavement dwellers, destitute women, children, bonded labour and victims of pollution.  The famous case in S.R.Bommai v. Union of India   AIR 1994SC 1918,  in the exercise of its judicial review, has struck down presidential proclamation by President of India under Article 356 of the Constitution of India on finding that there was no matter on which the President could have reached that conclusion.