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Updated: Jan 19, 2021


Kavya S. Suvarna, III year of B.A.,LL.B, from Sinhgad Law College Pune.

The term Judicial Activism first originated and further developed in the United States of America. It was first introduced by Arthur Schlesinger Jr., an American historian, social critic, and a public intellect. He wrote an Article titled ‘The Supreme Court: 1947’ in the Fortune magazine. However, his introduction to the term ‘Judicial Activism’ was said to be doubly blurred as it not only failed to explain what activism was but also, he declined to mention whether activism was good or bad. In 1970, Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy, Justice D.A. Desai laid the foundations of Judicial Activism in India.

The Union Government of India created under the Constitution of India comprises of the Executive, the Legislative and the Judiciary. These three bodies consist of all the powers vested by the Constitution in the Prime Minister, Parliament and the Supreme Court of India.

Executive- The sole authority and responsibility of the administration of the state bureaucracy lives with the Executive body by the power vested by the Constitution of India. The executive body consists of the President, Vice-President, Prime Minister, Cabinet Ministers and Agencies, Secretaries, Civil Services and the Cabinet Secretaries.

The highest position under the Executive is that of the President by the power given to him under Article 53(1) of the Constitution of India. Under this Article the President is supposed to exercise the executive powers given by the Constitution of India directly or through an officer subordinate to him. Under Article 74 of the Constitution of India, the President is supposed to function by the aid and advice provided to him by the Council of Ministers with the Prime Ministers. The President is elected by the Parliament of India, including Rajya Sabha and Lok Sabha and the Legislative Assemblies of all the states and territories.

Legislative- The power of the Legislative body is exercised by the Parliament of India, which further consists of Rajya Sabha and Lok Sabha. Rajya Sabha is considered to be the ‘Upper House’ or the ‘Council of States’. Lok Sabha is considered to be the ‘Lower House’ or the ‘House of the People’. Rajya Sabha consists of members appointed by the President of India and elected by the State and the Territorial Legislatures.

Judiciary- The Judiciary consists of the Supreme Court of India which possess the highest judicial power, High Courts to perform at the State level, District Courts and Sessions Courts to perform at the District level by the powers given by the Constitution of India. The Supreme Court of India further consists of the Chief Justice and 30 Associate Justices. It has extensive powers in the form of original, appellate and advisory jurisdictions These 30 Associate Justices are appointed by the President of India by the advice of the Chief Justice of India. The Supreme Court of India is located in New Delhi.

The Supreme Court of India is the Advisory Court, and it primarily deals with the verdicts of the High Courts of States and those referred by the President, and the law declared by the Court is binding on all the courts within India. And hence, the Supreme Court is considered to be the most powerful public institution of India. The role of the Judiciary is to protect the rights of the citizens of the country, to promote justice in the society by forcing the Legislative and the Executive bodies to discharge their duties.

Judicial Activism:

The Black’s Law Dictionary defines the term 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, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”.

At times, when the Legislative or the Executive fails to perform their functions mentioned under the Constitution of India, the Judiciary steps out of its own duties to take the necessary actions. When the Executive fails to provide the basic human rights to the society, the Judiciary takes it upon itself to provide justice.

In India, power is divided into three: Executive, Legislative and the Judiciary, which means that there is a ‘Separation of Power’ between the three bodies of the Union Government of India. Also, all of these bodies of the Union Government have certain functions and responsibilities mentioned under the Constitution of India. And hence, there is a risk involved when the Judiciary tries to step into the functioning of the other two bodies.

Public Interest Litigation (PIL) is considered to be one of the major outcomes of judicial activism. Filing of a Public Interest Litigation ensures justice to a large group of the society that is usually at a disadvantage or not accessible to pursue justice on their own, even in cases where they are not even involved. It basically provides justice to the society at large. The concept of Public Interest Litigation (PIL) was brought by Justice P. N. Bhagwati. Incidents of Public Interest Litigation (PIL) are observed when the Government is being irresponsible to provide the people with what they deserve, or at times when the Judiciary shows enthusiasm to give justice to the society, or at times when there is no law available related to a particular issue creating a Legislative Vacuum, or at the mere need for Justice.

However, there are certain problems related to Judicial Activism. As the Judiciary is not elected by anyone, unlike the other two bodies, i.e., the Legislative and the Executive, it is difficult to except the fact that all the decisions taken by the Judiciary in the name of the Public Interest Litigation (PIL) are actually in the favour of the society or with the purpose of fulfilling their own desires. And also, as the Judiciary is not elected by anyone, ones the authorities of the Judiciary are changed after the end of their terms or even due to any other reason. No one else is answerable to the people, not even the Government is answerable for the decisions made by the Judiciary. At time the Judiciary takes such issues in hand, which is not in their speciality and making decisions in such a case has various drawbacks. The function of the Judiciary is to keep a check on the functioning of the Executive and the Legislative bodies but also to not step over from its own duties. As a result, there is a need to know when and how the Judiciary can step in to perform the functions of the other bodies of the Union Government, and when it does, it is really for the good of the society.

1 則留言

Devashish Bhattacharya
Devashish Bhattacharya

Great, very timely published and excellently written

Congratulations to the writer

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