Introduction
Judicial activism is when courts go beyond their written jurisdiction to act with consideration of the larger impact of their actions, especially in the context of social rights and issues. It can be understood as an extension of the power of judicial review. Judicial review refers to the power of the judiciary to examine any legislative or executive action, and to see if it violates the constitution. Judicial activism takes a more active approach in creating laws. Through this article, I intend to explore the origins of judicial activism, its introduction to India and its development since then.
Historical Context
Judicial activism It initially came into being in the landmark case of Marbury v. Madison, where the US Supreme Court explicitly declared Section 13 of the Judiciary Act of 1789 unconstitutional. The Supreme Court did not have the explicit power to declare laws unconstitutional as outlined in the Constitution. However, Chief Justice John Marshall interpreted the Constitution to grant the Court this power, arguing that the Constitution is the supreme law of the land and that any law that conflicts with it is void. This was the first time in American history that a court had ever declared any legislation to be unconstitutional. In doing so, the Supreme Court ruled that federal courts had the power to invalidate unconstitutional laws, establishing the principle of judicial review, from which judicial activism later evolved. The term ‘judicial activism’, itself, was first used by Arthur Schlesinger Jr. in an January 1947 Fortune magazine article titled “The Supreme Court: 1947.” Schlesinger used this term specifically to analyse the Roosevelt Court justices’ approaches to judicial decision-making, classifying them as activists, self-restrained and middle position (“balanced”).
Evolution of Judicial Activism
Judicial activism as a concept in India can be traced back to 1893, when Justice Mehmood of the Allahabad High Court criticised the rule that appeals should be dismissed on the basis that the appellant is unable to pay for the translation and printing of the record in English. This was the first instance of some form of activism from the judiciary in India. Contrastingly, the British judicial system was a bit stricter and tended to adhere to its outlined jurisdiction. Therefore, the idea of judicial activism evolved gradually in its role in safeguarding constitutional rights during the colonial period.
The A.K. Gopalan v. the State of Madras (1950) case, where a writ was filed to determine whether detention without trial was a violation of fundamental rights, was a hallmark case in the evolution of judicial activism in India. The court adopted a very restrictive and narrow interpretation of Article 21, focusing on physical deprivation of liberty. It held that procedural safeguards were not necessary for preventive detention, as long as the detention was lawful and authorised by law. This approach was influenced by a textual interpretation of the Constitution, prioritising legislative intent over judicial activism. The Supreme Court’ judgement limited the judiciary’s role in protecting individual rights. However, this restrictive interpretation was overturned through Maneka Gandhi v. Union of India (1978) wherein the scope of Article 21 to include procedural fairness and substantive due process, and subsequent cases further refined the interpretation of fundamental rights, emphasising the role of the judiciary in protecting individual liberties. The eventual overturning of this doctrine marked a major shift from judicial restraint to judicial activism, where courts began to adopt a broader interpretation of the Constitution, emphasising the protection of individual rights and liberties.
Public Litigation Interests
The introduction of Public Interest Litigation (PIL) was a result of this shifting trend. PIL is a mechanism that allows any member of the public to approach the courts with regards to some issue that may or may not affect them, in the interest of the public. It came about because of judgments by Justice P.N. Bhagwati and Justice V.R. Krishna Iyer’s, who took on an activist approach. The landmark judgement came in Mumbai Kamgar Sabha v. Abdul Thai (1976), where Justice Krishna Iyer introduced the concept of PIL.
PIL empowers individuals and social organisations to approach the courts to seek redress for public wrongs and to protect public interests. This mechanism has allowed the judiciary to play a more proactive role in addressing social and environmental issues, often exceeding its traditional role of adjudicating disputes between individuals. PILs are one of the crucial distinguishing features of judicial activism in India as compared to other countries. Therefore, PILs are a case of judicial activism creating a tool to further judicial activism.
Since then, judicial activism has grown and become more assertive and active. The number of PILs filed in Indian courts has increased over the years.The subject matter these cases cover has also expanded to a wide range of issues, including environmental protection, human rights, consumer rights, and good governance. As a result of their increased judicial intervention, the Supreme Court has also expanded the interpretation of fundamental rights, such as the right to life, liberty, and dignity. Recently, judicial activism has become involved in cases such as the freezing of the controversial farm laws in 2021.
Judicial Overreach
However, the judiciary’s involvement in this case has also been classified as judicial overreach. Judicial activism, since its inception, has grown and evolved considerably. It will continue to adapt to the changing society and its political surroundings, and how it does will be key to its future. There’s a fine distinction between judicial activism and judicial overreach. Judicial activism is a guardian of rights whereas the judicial overreach results in the infringement of the same. The former serves to balance the powers of the three branches of the government, while the latter can disrupt this balance, and even lead to encroachment on the powers of the legislature and executive. It treads a dangerous line between protecting citizens and overstepping its bounds.
Conclusion
Therefore, judicial activism is very much a double-edged sword in terms of its consequences. It is imperative in ensuring the fundamental rights of citizens and protecting the constitution from being violated. However, it can also lead to judicial overreach, and a blurring of lines between the three branches of the government. It can serve as a safeguard against executive overreach, especially when the incumbent party enjoys the support of the majority, and minority rights are at stake.
Judicial activism could be key in halting this. At the same time, the judiciary can end up undermining the executive and preventing it from functioning. A conflict between the judiciary and the other two branches of the government can lead periods of tension and disagreement which in turn can certainly lead to delays, inefficiencies, and political gridlocks. Therefore, a fine balance must be drawn between judicial activism and judicial restraint for it to be a useful mechanism and not an imposing procedure. Ultimately, its impact depends on its use. However, there is no real standard to judge between judicial activism and judicial overreach. The line between the two is often blurred and subject to interpretation. What one judge may consider as necessary judicial intervention, another may view as overreach. Thus, until this line is distinctly drawn, this risk will always be high.