Judicial activism must necessarily mean the active process of implementation of Rule of Law, essential for the preservation of law of a functional democracy. The judicial activism is welcomed not only by individuals and Social Activist, who take recourse to it but also by government’s political parties’ civil servants constitutional authorities. Such as the President, the Election Commissions, the National Human Rights Commissions or regulatory bodies or other political players have protested against judicial instrument into matters that essentially belonged to the executive1.
The UN Commission on the Empowerment of the Poor, as the first global initiative to focus specifically on the link between the exclusion, poverty and law. it believes that where state provides protection to all citizens especially for poor by providing free legal aid, poverty could be reduced especially.2 In India the power of Supreme Court for the protection of the constitutional rights of the citizens are of the widest amplitude and there is no reason why the Court should not adopt activist approach similar to in America and issue to the State directions in which may involve taking of positive action with a view to securing enforcement of the Fundamental Right. The judiciary has been assigned this active role under the Constitution.3 They are not expected to sit in an ivory tower like an Olympian closing their eyes uncaring for the problems faced by the society. Therefore, in order to achieve this mission the judiciary has to exercise and evolve its jurisdiction with courage, creativity and circumstances and with vision, vigilance and practical wisdom. Judicial activism and self restraint are facets of that courageous creativity and pragmatic wisdom.
In several Public Interest Litigations admitted by judiciary with respect to payment dwellers, tribal people etc. The Supreme Court of India played a vital role in the concept of activism for protecting the poor and needy since 1977. Article-39 A4 in Directive Principles of State Policy inserted by which the State shall have responsibility in promoting justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid and to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.5
EVOLUTION OF JUDICIAL ACTIVISM IN INDIA
Judicial activism originates from the US. It is the process by which the judiciary uses the concept of judicial review to point out the unconstitutionality of legislative and executive orders. In the US it was derived from the “due process of law” from its Constitution.
The study of India reveals that the glimpses of judicial activism were visible, even during pre-independence colonial era, in various judgments of the Privy Council which had the jurisdiction to review the decisions of the Company’s Courts and the Crown’s Courts in colonial India. In Emperor v. Sibnath Banerjee,6 the Privy Council held that the Court can investigate the validity of orders passed under Section-59(2) of the Government of India Act, 1935. Judicial review of the Privy Council however ended with the abolition of the Privy Council Jurisdiction Act on Oct. 10th, 1949. The High Commissioner for India v. I.M. Hall7, is another case where the Privy Council incorporated the principles of ‘reasonable opportunity to the heard’ within the meaning of Section-240(3) of the Government of India Act, 1935. Judgments given by the Federal Court constituted under the Government of India Act, 1935 in Niharendu Dutt Majumdar v. Emperor,8 is yet another example of the activist judiciary. Here the Federal Court held that mere the criticism or even ridicule of the government does not amount to sedition unless the Act was calculated to undermine respect for the government so as to make people cease to obey it so that only anarchy can follow. However, the Federal Court constituted under the Government of India Act, 1935 mainly played the role of a literal interpreter. This was because the Constitution of 1935 had no specific chapter of the Bill of Rights and wide discretionary powers were conferred on the executive.
It is a fact that Supreme Court has become more powerful in recent times due to failure of the legislature and executive. The Supreme Court has ruled out the powers of the Parliament to amend the Basic Structure of the Constitution. Sometimes the executive is referring the various policy matters to the Supreme Court for its advisory opinion.9
Before emergency period the judiciary was not so aggressive to work beyond the prescribed provisions of the Constitution. The first case relating to this came in 1893 when Justice Mahmood of Allahabad High Court gave his dissenting decision which sowed the seeds of Judicial Activism. In that case which dealt with an under trial who could not afford to engage a lawyer, Justice Mahmood held that the pre-condition of the case being “heard” would be fulfilled only when somebody speaks.10
The judiciary was an institution of state during the colonial period. Interpreting the meaning of laws first changed its character during the Nehru years. Chief Justice Subba Rao exhibited a very rare judicial activism in the instant case to enable the Fundamental Rights to attain the supremacy in the Indian Constitution and in the process has over ruled two long outstanding judgments on that topic viz., Sankari Prasad and Sajjan Singh.11
Vishakha v State of Rajasthan12 is the landmark case on judicial activism. In this case the Supreme Court has laid down the exhaustive guidelines to prevent sexual harassment of women at work place. Until a legislation has been enacted for the purpose, the Court held that it is the duty of the employer or other responsible persons at work place or other institution, whether public or private, to prevent sexual harassment of working women.
1. S.P Sathe., Judicial Activism in India: Transgressing Borders and Enforcing Limits, p. 25( Oxford University Edition, 2005)
2. Dr.Pratilcsha Baxi, Access to Justice and Rule of (good) Law: the Cunning of Judicial Reform in India (Oct. 12, 2019, 5:20 pm) http://www.scribd.com/doc/50175274/12-4-Access-to-Justice
3. Dr. JN Pandey, Constitutional Law of India, p. 428( 54th Edition, 2017)
4. Added by 42nd Amendment Act, 1976
5. R. Sudarshan, Avatars of Rule of Law and Access to Justice, some Asian aspects (Oct. 12, 2019, 6:45 pm) http://www.snapundp.org/leplcnowledgebanIc/Public%20Document/020Libmry/Avatars%20or/020Rule%20
6. AIR (32) 1945 PC 156, p.161
7. AIR (35) 1948 PC 121, para 21 and 22
8. AIR 1942 FC 22.
9. Mach Kishwer v. State of Bihar, AIR 1991 SC 420
10. Balakrishna, Ref. to the article, When seed for judicial activism was sowed, p.9, “The Hindustan Times” (New Delhi), Apr.1, 1996
11. GB Raddy, Judicial Activism in India, p.136(1st Ed., 2001)
12. AIR 1997 SC 3011