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Author: Varun Maheshwari, B.B.A.,LL.B from Global Jindal Law School.

The term “Judicial Activism” was coined by Arthur Schlesinger Jr. in 1947 when he used it in Fortune Magazine in his article “The Supreme Court: 1947”.There are a lot of interpretations for Judicial Activism. Wharton’s Concise Law Dictionary defines ‘Judicial Activism’ as a situation when judges allow their personal views about policies to interfere with their decisions.

However, the term has evolved with time and has shaped into basically the Supreme Court overstepping its jurisdiction and legislating into matters which either belongs to the legislative or the executive. Even though people still have utmost faith in the judiciary, I am going to argue that Judicial Activism is rising. S.P. Sathe argues that Judicial Activism is often seen as a necessary evil. However it is still evil and one cannot correct a wrong by committing another wrong. It just appears like a justification as they acknowledge the fact that Judicial Activism is on the rise and it is not a good thing. It may seem like a solution for many problems in the short-run however every coin has two sides and Judicial Activism can also take shape into domination by the judiciary. Demosprudence concerns itself with enhancing the democratic work of the judiciary.

We tend to argue that all the three pillars of the Indian democracy have a system of checks and balances however the judiciary has an upper hand in real life and has been exercising that in the recent times. The very Constitution of India has given enough scope for judicial activism to take place in India. The very articles like Article 142 which allows the Supreme Court to pass decree or order to do complete justice. There is no checks and balances for this article. This article’s use can be seen in M Siddiq(D) Thr Lrs v. Mahant Suresh Das & Ors. Another article which puts the Supreme Court on a higher pedestal than the others is article 147 which makes it the ultimate authority to interpret any substantial question of law and the constitution. Once an interpretation has been drawn only the SC can change that. Upendra Baxi hits the nail on its head when he says that the power to interpret laws combined with the power to manipulate the interpretation process is in a sense the power to make laws themselves. We can see how the judiciary has often misused this or overused this. In the case of article 124A, the NJAC was turned down by the judiciary which was seen as a very transparent and democratic methodology over the existing controversial collegium system for the appointment of the judges. The participation of the Judiciary at the state or the central level in India is very high as compared to different countries throughout the world. Upendra Baxi rightly points out how the Indian Supreme Court has unparalleled powers in the matters of Judicial Review which often take the shape of judicial activism.

In the early stages, the Judiciary was quite “conventional” and was of the ideology to stick to a narrower scope of the laws and the constitution. There were several tussles between the government and the Judiciary in the emergency era. It is often referred to as the first phase of Judicial Activism in India. The case which started the rivalry between them was the Indira Gandhi v. Raj Narain which became a turning point in the history of the judicial journey. The emergency was one of the darkest periods of the Judiciary. The case of ADM Jabalpur v Shivakant(1976) or famously known as the Habeas Corpus case is often the first example which comes into mind when one talks about the Judiciary surrendered to the whims of the government.

The Court allowed the suspension of all the fundamental rights in the case of an emergency. This was seen as a black stain on the image of the judiciary as the judiciary validated all the tyrannical acts of the government. Only Justice Khanna gave a strong-worded dissenting opinion. The amendment of article 71 made the election of Indira Gandhi legitimate due to the retrospective nature of the amendment. To regain the image the court had three options: annul the constitutional amendment and convict Indira Gandhi in Indira Gandhi v Raj Narain; Uphold the Constitutional amendment and also let Indira Gandhi go free from the case or they could do both annul the constitutional amendment a well as convict Indira Gandhi. However, if the Court would have chosen the first option it would have been a direct implication of war between the court and the government which would have harmed the court adversely as the government was really strong and didn’t have a strong opposition either. If the court had chosen the third option the public would have stopped trusting the court as the court of justice and would have made the Supreme Court look blind to the whimsical behaviour of the government at hand. Hence the court chose to take a diplomatic view and went with the third option. The suppression of Justice Khanna (dissenting opinion in ADM Jabalpur Case) and appointment of justice Beg as the Chief Justice of India as an example for the Judges to not express dissent. Post the emergency as soon as Moraji Desai government rose to power the Supreme Court started converting itself into an activist court. S.P. Sathe raised a very well-articulated point that the SC realised that the judgements in the emergency era weren’t popular and to gain the support of the masses and regain the credibility it once had focussed more on the enforcement of rights. In the process of doing so the court out-rightly took the path of Judicial Activism. The proportion of cases decided in favour of free speech went up with each passing decade for the first four decades of the court's existence . Sudhir Krishnaswamy proves the change for populism by alleging that the Supreme Court chose to enforce rights in 1990 which it wouldn’t have in 1980.

Upendra Baxi brilliantly sums it up by saying “the Supreme Court of India as an apex adjudicative bureaucracy, a final arbiter of the ‘doings’ of other courts in the hierarchy, has now fully emerged as an institutional political actor”. In the Keshvanada Bharti Case (1973) the SC interpreted the Legislature’s amendment powers in a very restricting way confining those powers and also formulating a theory itself as the “Basic Structure Doctrine”.

The amending powers of the parliament under article 368 of the Constitution of India were challenged. The amending powers of the Parliament were upheld by the court in Sri Sankari Prasad Singh Deo v. Union of India and Sajjan Singh v. the State of Rajasthan. In Keshvananda Bharti the Supreme Court held that the parliament could not amend the Basic Structure of the Constitution. This was known as the “Basic Structure Doctrine”. This was well within the interpretation rights entitled to the Supreme Court given by the Constitution of India however this methodology of interpretation raises eyebrows as this not only rules the amendment at hand to be null and void which is well within the judicial review’s purview but also legislates the restrictions on the amending powers of the Parliament. Even though the Courts are responsible for reviewing and invalidating executive actions and laws passed by the legislative, in this scenario the court not only did so but came up with a new doctrine which was equivalent to a new legislation in practice.

Sathe also interprets Judicial Activism as the liberal interpretation of the provisions of the constitution such as article 21 which has been recently interpreted in a wider context to include several other intrinsic rights. The Puttaswamy Judgement (2017) in which the SC ruled that Article 21 included Right to Privacy where no such terms were used in the original Constitution or even in the discussions of the constituent assembly. One may argue that changes are necessary and rights should evolve with time but they should evolve through a legislative process through the Legislature and not by the judiciary. In the Unni Krishnan vs State of Andhra Pradesh, the Supreme Court of India held that article 21 covered 16 rights in itself. This may come under the purview of interpretational rights of the Supreme Court of India but one must understand that rights set up a positive action against the government. To put 16 fundamental rights through a judicial case seems inappropriate and disturbs the very balance of the separation of the powers given through the constitution. This also falls bad on the concept of democracy as the rights are not expanded by the people who have been chosen by the people but by the Judges. The people now aware of the liberal and active judiciary “seek extraordinary remedies” transcending the inscribed difference between legislation and adjudication.

The very concept of PIL (1976) is the pinnacle of Judicial Activism. PIL was introduced by Justice B.N. Bhagwati and Justice Iyer. It was a relaxation on the concept of Locus Standi. Even though PIL has served the purpose of improving the judiciary’s approachability for people in practical life yet the way it came into existence turns a few heads. The Judges can also take a matter suo motu or through letters addressed to them. Several factors connect Judicial Activism and Public Interest Litigations like how one interprets the role of Judges, separation of powers and courts in a democracy especially the Indian democracy. However, the validity of the facts is also very important. Varun Gauri points out that most social and economic matters do not have matters of contention of genuine rights but of positive actions which entail significant expenditures which in-turn affects other branches of the government. It would have been the role of the legislature to introduce that but the judiciary. It is a classic example of Judicial Activism as they overstepped their jurisdiction to legislate. Justice Iyer says “Activism is essential for participative public justice” which shows how the judge that proposed it knew it himself yet chose to stick with the ‘necessary evil’. It is believed that the social and economic matters are the prerogatives of the legislative or the executive and giving positive guidelines are just inappropriate judicial activism.

Varun Gauri argues that “policy, environmental and social must emerge from a socio-political process and must be considered in a legitimate forum, not a judicial one”. A.K Thiruvengadam documents the criticism of the judiciary’s invasion in the legislation on the topic of Public Interest Litigations.

These include the comments of Justice Hidayutullah, Justice Srikrishna and Justice Kaju who stated that the Public Interest Litigation “has developed into an uncontrollable Frankenstein”. Roy even goes to the length to say that we live in a “judicial dictatorship” and we don’t even know that yet. It is important for us to look beyond the empirical profits of a concept like the PIL and understand the legitimacy of the process behind it and their consequences.