1. The concept of judicial activism originated and developed in the USA.
2. Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society. In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
3. The term “Judicial Activism” refers the court's decision, based on the judges personal wisdom that do not go rigidly within the text of the statutory passed by the legislature and the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.
Doctrine of separation of Power
- The Constitution, under various provisions, has clearly drawn the line between Legislature and the Judiciary to maintain their independence in their respective functioning.
- Where Article 121 and 211 forbid the legislature from discussing the conduct of any judge in the discharge of his duties. Articles 122 and 212, on the other hand, prevent the courts from sitting in judgment over the internal proceedings of the legislature.
- Article 105(2) and 194(2) protect the legislators from the interference of the Courts with regards to his/her freedom of speech and freedom to vote.
Pros of Judicial Activism
- It provides a system of checks and balances to the other government branches.
- Judicial Activism provides judges to use their personal wisdom in cases where the law failed to provide a balance.
- Judicial Activism also provides insights into the issues.
- Many a time public power harms the people, so it becomes necessary for the judiciary to check misuse of public power.
- It provides speedy solutions where the legislature gets stuck in the issue of majority.
Cons of Judicial Activism
- Judges can override any existing law. Hence, it clearly violates the line drawn by the constitution.
- The judicial opinions of the judges become standards for ruling other cases.
- Judgment may be influenced by personal or selfish motives. Which can further harm the public at large.
- Repeated interference of courts can erode the faith of the people in the quality, integrity and efficiency of governmental institutions.
- Courts limit the functioning of government, when it exceeds its power and to stop any abuse or misuse of power by government agencies.
Examples where the judges may have encroached upon the legislature:
- Arun Gopal v. Union of India (2017): The Supreme Court fixed timings for bursting Diwali fireworks and prohibited the use of non-green fireworks, although there are no laws to that effect.
- M.C. Mehta v. Union of India (2018): The court annulled the statutory Rule 115(21) of the Central Motor Vehicle Rules, 1989, when it directed that no BS-4 vehicle should be sold after March 30, 2020, and that only RS-6 vehicles can be sold after that date.
- Subhash Kashinath Mahajan v. State of Maharashtra (2018): The court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail will be granted to persons accused under the Act;
- Rajesh Sharma v. The State of Uttar Pradesh (2017): The court felt that Section 498A of the Indian Penal Code was being misused. So it amended that Section by requiring complaints under that provision to be sent to a Family Welfare Committee constituted by the District Legal Services Authority,
- National Green Tribunal (NGT): ordered that no 15-year-old petrol-driven or 10-year-old diesel-driven vehicle will ply in Delhi, and the Supreme Court has directed impounding such vehicles, though neither the NGT nor the Supreme Court are legislative bodies.
- Judicial activism is not backed by the Constitution; it is a product devised solely by the judiciaries. When the judiciary steps over the line of the powers given to it, in the name of judicial activism, one can say that the judiciary then begins to nullify the concept of separation of powers specified in the Constitution.
- If judges are free to make laws of their choices, not only would that go against the principle of separation of powers, it could also lead to uncertainty in the law and chaos as every judge will start drafting his own laws according to his whims and fancies.
- Making laws is the function of the legislature. It is the duty of the legislature to fill the gap of laws and it is the duty of executive to implement it in a proper manner. So that only the interpretation remains as a work for the judiciary.