Judicial activism

What is judicial activism ?

• Judicial activism is a term used by political commentators to describe a

tendency by judges to consider outcomes, attitudinal preferences, and other
public policy issues in interpreting applicable existing law
• Formally, judicial activism is considered the opposite of judicial restraint, but it is
also used pejoratively to describe judges who endorse a particular agenda
• Although alleged activism may occur in many ways, the most debated cases
involve courts exercising judicial review to strike down statutes as
unconstitutional
• Views about constitutional interpretation abound, ranging from strict
constructionism to the living constitution, and therefore, in practice, any
controversial decision striking down a statute may be labeled by the decision's
critics as judicial activism
• Black's Law Dictionary defines judicial activism as "a philosophy of judicial decision-making
whereby judges allow their personal views about public policy, among other factors, to guide
their decisions, usu. with the suggestion that adherents of this philosophy tend to find
constitutional violations and are willing to ignore precedent."
• David Strauss of the University of Chicago Law School has argued that
judicial activism can be narrowly defined as one or more of three possible
things:[3]
 overturning laws as unconstitutional
 overturning judicial precedent
 ruling against a preferred interpretation of the constitution

Methods
The methods by which judges engage in judicial activism, according to critics[Who?] who
make this accusation, include the following:[citation needed]

• Overturning legislation passed by an elected legislature, using an interpretation of

the constitution that critics[Who?] believe is not clearly mandated or implied by the
constitutional text;
• Ruling against the text or intent of a statute, using what critics[Who?] argue is an
incorrect or overreaching interpretation;
• Ruling against judicial precedent in a way that critics[Who?] hold is a radical or
unjustified departure from accepted interpretation;
• Holding legislation unconstitutional based on what critics[Who?] view as a clearly
flawed precedent; Selectively using obscure case law or foreign law, in
preference to what is seen by critics[Who?] as more pertinent case law or statutory
law; and
• Use by state courts of a single subject rule to nullify legislation or state
constitutional amendments, in what critics[Who?] say is a questionable manner
Reasons to justify judicial activism
Defenders of judicial prerogatives say that many cases of "judicial activism" merely exemplify judicial
review
courts must uphold the constitution and strike down any statute that violates the constitution
that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political
sentiments of the day, and that constitutional democracy is far more than just majority rule
Some proponents of a stronger judiciary argue that the judiciary should grant itself an expanded role to
counterbalance the effects of majoritarianism,
there should be an increase in the powers of a branch of government which is not directly subject to the
electorate, so that the majority cannot dominate any particular minority through its elective powers
Judicial Activism refers to the phenomenon of the courts dealing with those issues which they have
traditionally not touched or which were not in the contemplation of the founding fathers . . . . It is a
state of mind, the origin of which lies in the ‘inactivism’ of other two wings of the government .
Judicial activism, infact, is not distinctly separate concept from usual judicial activities. The
expression ‘activism’, lexically as well as in ordinary parlance, means ‘being active’, ‘doing
thingswith decision’ and the expression ‘activist’ should mean ‘one who favours intensified
activities’. Inthis sense every judge is, or atleast, should be an activist, as Justice Krishna Iyer
observed, “everyjudge is an activist either on the forward gear or the reverse.”14
 Judicial Activism is nothing but court’s move to reach at the doorstep of
the ‘lowly and lost’ to provide them justice
 One of the meanings of judicial activism is that the function of the court is
not merely to interpret the law but to make it by imaginatively sharing the
passion of the Constitution for social justice
 The ‘Theory of Social Want’ states that the origin and growth of judicial activism lies in the
failure of existing legislations to cope up with the problems of our society. Ultimately, the
judiciary responded to the knock of the poor and the oppressed for justice. The supporters of
this theory opine that ‘judicial activism plays a vital role in bringing in the societal
transformation. It is the judicial wing of the state that injects life into law and supplies the
missing links in the legislation …


Against
Detractors of judicial activism charge that it usurps power of the legislature, thereby diminishing the rule
of law and democracy
an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected
representatives, absent a real conflict with the constitution.
the discretion of judges must be limited (e.g. by the intentions of lawmakers), or else any group of people
engaged in any behavior could become a judicially protected minority, and any law could be
subverted by the predilections of unelected judges
 judicial activism had upset the constitutional system of checks and balances,
others welcomed the manner in which the judiciary was re-defining its role in a
corruption-ridden system.
  the judicial activism will have a detrimental effect on our democratic order. They
opine that the people are losing their faith in their political leadership,
bureaucracy and governmental mechanism.
 This emerging ideology will prove fatal for the basic democratic norms.
Moreover, the judicial intervention in legislative or executive domain has
endangered the system of checks and balances and has proved to be the main
threat to the system of separation of powers in India
 autocracy of the judges - the judiciary - is to be more dreaded than that of the
politicians, for there is no recourse against it. The healer becomes the killer, the
saviour the captor’
 The cases of Janta Dal v. H.S. Chowdhari,70 Krishna Swami v. Union of India71
and Simranjit Singh Mann v. Union of India72 are fine examples where the
petitioners tried to abuse the PIL to achieve political ends
 Judges are also humen. They can also go wrong .
 Who will judge the judges ? no one can challenge their decision politically or
constitutionally .


cases in India in favour of judicial activism

Similarly, the Court in several cases has affirmed

prisoners’ rights.
 In M.C. Mehta v. State of Tamil Nadu the Court ruled out the employment of
children in match factories as it is hazardous and declared various measures
aiming at child welfare in some other cases.
 Court has also directed several companies to take all necessary safety measures
 .47 In some other cases the apex Court has shown its serious concerns over the
pollution-ridden national monuments, public places, rivers etc
 .48Gender jurisprudence has emerged due to judicial activism to protect the
woman from exploitation and humiliation. In India, the Constitution and various
legislative measures have abolished inequality and atrocities against women yet
women continue to suffer injustice. To remove the loopholes the Supreme Court
has laid down exhaustive guidelines for preventing sexual harassment of working
women,49 for protection of women from prostitution and rehabilitation of their
children50 etc.
Conclusion

 The Supreme Court’s pivotal role in making up for the lethargy of the Legislature
and the inefficiency of the Executive is comendable.
 It has shown that moneyocracy can no longer corner court resources nor political
heavy weights plunder the public treasury without visiting the prison.
 At long last, the law is gaining respect.85 But the law can be dehumanized and the
allegedly infallible final forensic floor, the Supreme Court, may turn into a
dictator.
 Thus the weapon of judicial activism must be used carefully. As Justice J.S.
Verma (as he then was) has referred to judicial activism as a sharp-edged tool
which has to be used as a scalpel by a skilful surgeon to cure the malady. Not as a
Rampuri knife which can kill.86
 The judges should exercise self-restraint to avoid the latter use of judicial
activism. However we may conclude with the comments and suggestions given by
Poornima Advani on the present scenario.87
 That the intelligentia today has begun to look askance: who are ruling, the
bureaucrats, the politicians or the judiciary? It is all very confusing and till a
clearer picture can emerge, the question must remain a question
 . The tug of word-war has begun and hopefully some clearer guidelines will
emerge.
 Yet, whatever be the outcome, whosoever may be the ruler, justice is as yet a far
cry and democracy an illusion for the ruled
 It is high time the constitutional heads, the legislature, the executive, and the
highest placed judiciary put their heads together and face the realities and act
positively with a one-point goal to take India out of the abyss into which it has
fallen.