India has separation of power as one of the basic features of Constitution where domains of Legislative, executive and Judiciary have their own roles to play. Our constitution makers envisaged the Judicial system as independent (though integrated) along with the responsibility of being a guardian of Constitution.
In recent times, incidents like Unnao rape case, the ongoing debate over parallel governance, etc have brought Judicial activism and judicial restraint in the limelight. In this article, all details regarding Judicial activism and Judicial restraint are thoroughly discussed. This is important from the mains examination point of view for both UPSC IAS and state-level PCS exams.
Judicial Activism and Judicial Restraint
Meaning of Judicial Activism
- The overactive role played by the Judiciary in upholding the constitutional and legal rights of the citizens is called Judicial Activism.
- It is a judicial philosophy in which judiciary exercises its power to implement and enforce the constitutionally correct laws which are beneficial for the people of society at large.
- In Judicial Activism, the judiciary exercises its power to strike down the laws or rules which infringes the basic rights of the citizens or goes against the constitutional values.
- It empowers the judiciary to correct the mistakes or injustices of the other organs/branches of the government.
- The Supreme Court judgments in Golak Nath Case (1967), Kesavanand Bharti Case (1973), Menaka Case (1973), Vishaka case (1997) etc are some of the examples of the Judicial Activism.
Meaning of Judicial Restraint
- The theory, in which the judiciary restraints while sticking down any law or rule passed by the Parliament unless it goes totally against the constitutional values of the country, is called Judicial Restraint.
- Judicial restraint encourages the judiciary in considering the fact that the laws/rules passed by the elected representatives of the parliament may be the need of the hour and needs to be respected by the judiciary unless it gets necessary for upholding the constitution.
- Article 13 of the constitution empowers the judiciary to review any Law/Act/Rule that infringes upon the fundamental rights guaranteed to the citizens by the constitution of the country.
- This power of the judiciary to review any law/act/rule became dominant and was termed as judicial activism in later years. However, the term ‘judicial activism’ has nowhere been used in the constitution.
- Judicial activism is an invention of the Indian Judiciary for giving pro-active decisions by taking Suo-Moto action through Public Interest Litigation (PIL) or through other ways.
- The journey of judicial activism started from the Golak Nath case (1967) in which the Supreme Court gave a judgment that the fundamental rights as stated in Part-III of the constitution are not amendable by the legislature.
- In the Kesavanand Bharti case (1973) the Supreme Court gave a historical judgment by introducing the concept of ‘Basic Structure’ of the constitution and stated that the ‘Basic Structure’ of the constitution couldn’t be changed/ amended.
- In SP Gupta case (1981), a new concept of Public Interest Litigation was introduced and accepted by the Supreme Court.
- From here on wards, the Supreme Court started using its powers of judicial review more randomly, even in governance issues.
Recent cases of Judicial Activism
- Recently, the Supreme Court made the playing of national anthem compulsory in cinema hall before the screening of movies. The decision was later amended and made it optional.
- The Supreme Court recently in Arjun Gopal Case, prohibited the use of non-green firecrackers in Delhi/NCR and even fixed the timing for bursting firecrackers.
- In Subhash Kashinath case, the Supreme Court declared to amend the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
- The National Green Tribunal recently banned the use of more than 15-year-old petrol vehicle and 10-year-old diesel vehicle.
- A Tamilnadu judge made the study of Tirukkural mandatory for every student in Tamilnadu, which is actually prerogative of legislature and executive.
- There are many such other judgments in which the judges have excessively used the powers and interfered in the domain of legislator and judiciary.
Reasons for the evolution of Judicial Activism
- Failure of Law – In many sensitive cases, when the present law fails to handle the issue, judicial activism permits the judges to use their powers to act as per the demand of the situation. Ex – Triple Talaq judgment of the Supreme Court.
- For Reviewing the previous judgments – In many cases, the situation demands to take a relook of its own earlier judgments with a new frame of mind. In this case, also, the concept of judicial activism helps.
- For filling the legal vacuum – Many times, the Supreme Court is required to act Suo-Motto for stopping of reoccurrence of any similar incidents. For example, the Supreme Court framed the Vishaka guidelines for handling issues of harassment of women at workplace in the Vishaka case of 1997.
- For checks and balances – Many times, the government in powers takes a decision in haste and in such cases, the courts check the legality of the law/act according to the constitution.
- For timely and complete judgment – Many times, the situation demands a pro-active response of the courts for timely and complete justice. In such cases, the courts can use the power to enforce the law.
- Rising demands of Human Rights – Around the world and in India also there has been gradual demands for establishing the supremacy of the Human Rights. This motivated the judiciary to take necessary steps under its power of judicial activism.
- The Constitution has separated the functions and powers of legislature and judiciary through its various provisions.
- Article 121 and 211 of the constitution restricts the power of the legislature to discuss the conduct of the Judges while performing their duty.
- The Supreme Court and High Court judges have been provided with the security of tenure, appointment, salary and allowances etc.
- Judges have the independence of performing their duties in an impartial way without getting influenced by the legislature and executive.
- No objection or opposition can be made by anyone on the orders of courts. The decision of the court is final and binding and can be challenged only in higher courts.
Demerits of Judicial Activism
- The overriding powers of the judiciary have many times interfered in the domain of legislature and executive, which goes against the spirit of separation of power enumerated in the constitution.
- Many times, the personal and prejudiced views of the judges get reflected in their judgments, which are big drawbacks of the concept of judicial activism.
- One judgment becomes standard ruling for other cases which resulted in a chain of judicial overreach.
- Judicial activism restricts the law-making power of the parliament and the legislature.
- The chances of turning of judicial activism into judicial overreach are huge and need to be understood by the judiciary while exercising its powers.
- Many times, the decisions taken by the judiciary has eroded the public faith in the law made by the elected representative in the parliament.
- At large, judicial activism has become a challenge in the law-making process of the legislature.
- Judiciary needs to understand the thin line between judicial activism and judicial overreach and needs to act accordingly.
- The concept of separation of power should be taken into consideration by the judiciary while using its judicial powers.
- Judiciary needs to be accountable, and for this, some new methods may be adopted by the government.
- The legislature needs to be more active in filling the legislative gaps so that the need for judicial reviews and intervention is less.
- Judiciary needs to be more disciplined and accountable while using its powers under the concept of judicial activism.