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Transcript of Chapter - 4 JUDICIAL ACTIVISM: CONCEPT AND · PDF file139 Chapter - 4 JUDICIAL ACTIVISM:...

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    Chapter - 4




    Judicial activism has recently become a source of heated debate, especially in

    the light of hyper activity witnessed in the judicial branch of government

    throughout the states with federal structures. Over the past six decades, the

    term judicial activism has also become an immensely popular tool for

    criticizing judges behaviour. Moreover, through various controversial

    decisions, judges of the Supreme Court and the High Courts of India, Justices

    of the United States as well as other countries having federal set-up, have once

    again triggered off the debate on judicial activism that has always generated a

    lot of heat. Since a very long time, there has been a lively debate on the role of

    judiciary in the governance of states. Judicial activism has emerged as the most

    acceptable term to denote judicial intervention beyond its boundaries around

    which such debates revolve. Despite the terms prominence, due to one reason

    or the other, the controversy about its definition has not been resolved and its

    universally acceptable meaning still remains elusive. Some politicians would

    like to call it as Judicial Anarchy, Judicial Over-activism and Judicial

    Despotism.1 This chapter is an attempt to bring out the various connotations of

    judicial activism and to find out its effects on todays changing society.

    The term judicial activism is generally used by scholars of social sciences to

    describe a tendency by judges to consider outcomes, attitudinal preferences,

    and other public policy issues in interpreting applicable existing laws. 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.2 Therefore, judicial activism is formally

    considered the opposite of judicial restraint, but it is also used pejoratively to

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    describe activist 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 labelled by the decisions critics as judicial


    Legislating from the bench is also a good way to describe judicial activism,

    when judges dictate policy guidelines to other branches of government.3

    Judicial activism occurs when a judge or justice decides an issue based on

    personal or political ideology or pressure from special interests instead of

    abiding by the constitution or previous precedents. The United States has a

    system of checks and balances to ensure that one branch of the federal

    government will not become too powerful. Under the separation of powers

    doctrine, only Congress has the power to legislate. Judicial activism violates

    that separation of powers by effectively creating new law that often affects the

    entire nation instead of settling the particular case at hand. It means that the

    judiciary, which is appointed rather than elected and held accountable by the

    people, does not have the authority to legislate. In other words, judicial

    activism means a justice oversteps the jurisdiction of the court or creates a

    ruling that radically diverges from common law, jurisprudence, and the intent

    of the constitution. Judicial activism may also be a case of judges or justices

    over-ruling existing law, or creating legal doctrines without precedent or

    support which undermine or recreate policies, usually social policies.


    Of late, the term judicial activism has become more popular, but its meaning

    and definitions have become correspondingly and increasingly, ambiguous

    because at present judicial activism is defined in a number of disparate, even

    contradictory ways; scholars and judges recognize this problem, yet persist in

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    speaking about the concept without defining it. Thus, the problem continues

    unabated: people talk past one another, using the same language to convey very

    different concepts.4 In order to comprehend the phenomenon, it will be

    convenient to discuss some lexicon as well as scholarly definitions of the

    concept. Merriam-Webster's Dictionary of Law defines judicial activism as

    the practice in the judiciary of protecting or expanding individual rights

    through decisions that depart from established precedents or, are independent

    of or, in opposition to supposed constitutional or legislative intent.5 The term

    judicial activism has also been defined in many ways by legal scholars. It

    would be pertinent here to refer to many legal sources in order to reach a

    considered conclusion. In the Harper Collins Dictionary of American

    Government and Politics, the term judicial activism has been defined as the

    making of new public policies through the decisions of judges. Blacks Law

    Dictionary defines it as a philosophy of judicial decision making whereby the

    judges allow their personal views about public policy, among other factors, to

    guide their decisions.6

    While in the US, both the views are prevalent, in the developing world, the

    view commonly held is that the court should function as an instrument to

    achieve desired social results. It is widely believed that the judges should not

    hesitate to go beyond their traditional role as interpreters of the constitution and

    laws in order to assume a role as independent trustees on behalf of society. The

    reason for widespread acceptance of this view is that in these countries the

    executive and legislature have failed to ensure good governance and provide a

    fair deal to their citizens.7

    In the developing countries like India, it is generally believed that the concept

    of judicial activism contributed to uphold the rule of law and consequently, it

    has a positive impact on governance. In some of the Indian experiences

    judiciary has been able to keep up the standards of good governance in the face

    of corruption, failed political processes, incompetent political elite and lack of

    respect for human rights. Some scholars in India have defined it in the context

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    of Public Interest Litigation (PIL) or Social Action Litigation (SAL) or Private

    Attorneys of Law (PAL). For example, K.L. Bhatia has outlined the

    imperatives of judicial activism in the context of widening the perspectives of

    locus standi as follows: Judicial activism, in India, is a movement from

    personal injury to public concern by relaxing, expanding, and broadening the

    concept of locus standi. Judicial activism is correlated, with a progressive

    movement from personal injury standing to public concern standing to

    allowing access to justice to pro bono publico, that is, public spirited

    individuals, groups and organizations, on behalf of lowly and lost or

    underprivileged or underdogs or littlemen who, on account of constraints

    of money, ignorance, illiteracy, have been bearing the pains of excesses

    without access to justice.8

    Although it is true that in the eyes of some critics the Indian judiciary is also

    acting as a third chamber and a super executive yet, some scholars deny the

    very existence of the term.9 They are of the view that the judiciary is doing its

    primary duty and nothing more. J. Kuldeep Singh, former judge of Supreme

    Court of India, blazed this new trend.10 Some other legal-eagles steered the

    same course and referred to judicial activism as a myth or as a farcical

    term.1112 However, judicial activism which has been a uniquely American

    development has been defined in Indian context, in many ways. In the words of

    Surya Deva, 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.13 Thus,

    Surya Deva emphasized the inactivism on the part of the legislature and the

    executive. It is because of the violation of peoples rights that judiciary has

    come to their rescue. On the one hand, it has to ensure that any law passed by

    the legislature is in conformity with the provisions of the constitution and on

    the other hand, it has to assure the citizens, the effective implementation of

    these laws without executives move beyond its powers. The aforesaid

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    phenomenon given by Surya Deva is encouraged by Ashok Kumar Johri as he

    writes: Judicial activism, in fact, is not distinctly separate concept from usual

    judicial activities. The expression activism, lexically as well as in ordinary

    parlance, means being active, doing things with decision and the expression

    activist should mean one who favours intensified activities. In this sense

    every judge is, or at least, should be an activist, as Justice Krishna Iyer

    observed, Every judge is an activist either on the forwar