Judicial Activism…

 

In 1978, a prisoner named Sunil Batra wrote a letter to Supreme Court regarding the inhuman treatment and tortured the fellow prisoners, which the honourable court treated as a PIL (public interest litigation) and it led to the landmark case named Sunil Batra v.s. Delhi administration, which upheld the prisoners’ rights ruling that the prisoners have fundamental rights which can’t be violated on mere imprisonment.

It may make us wonder how can a mere letter be treated as a petition or can judiciary really assert such a power? Think of the role of judiciary which as most of us know is to interpret the laws made by the legislation and solve the conflicts. It makes me wonder how can the landmark judgement Keshavananda Bharti case (Keshavnanda Bharati Sripadagalvaru v.s state of Kerala and Anr, 1973) come up with something like basic structure doctrine, which has no roots in the Constitution? Also, when we as common citizens, sometimes appreciate a judicial system being ahead of its times, what do we infer by that?

An American scholar, Arthur Schlesinger referred to this as ‘Judicial activism‘

The term was introduced and brought into practicality in India by the former CJI P.N Bhagwati, along with eminent legal scholars like Justice VR Krishna Iyer, Justice O Chinnappa Reddy, and Justice D.A Desai .

‘Judicial activism’ as the term suggests, is the proactive and vigilant role played by the judiciary to uphold the rights of citizens and to ensure justice in the society . Judicial activism, is becoming a very prominent concept in the contemporary period with the widening scope of judicial interpretation and its ability to gain trust through establishment of democratic judiciary.

In India, where we have a democratic system of checks and balances, the judiciary acts as an instrument to maintain the hopes of the most vulnerable and most deprived one to get justice . The Constitution confers judiciary with the tool of judicial review under which is the power to review the legislations (under article 372) and ensures fairness and justice. It is in a way the most important tool to keep check on legislature along with the various writs.

But when we talk of socio-economic justice, for all adhering to the principle of ‘Antodaya’ (the upliftment of the last person) by Gandhiji, we tend to ignore the lack of legal awareness and legal literacy in the people. In our society where so many women face domestic violence on a daily basis and children work in hazardous factories, where tribals are exploited of their rights and workers treated brutally all because they are unaware of their rights or of the legal meaures available, Judicial activism comes as a saviour in such cases. Enabling tools like PIL i.e.,public interest litigation, which is defined by the Supreme Court in the People’s union for democratic rights and ors v.s union of India and ors as: 

“PIL is a cooperative or collaborative effort by the petitioner, the state of public Authority and the judiciary to secure observance of constitutional basic human rights, benefits, and privileges upon poor, downtrodden and vulnerable sections of society.”

Under the PIL, any person or social organisation can move to the court for enforcement of rights of any other person or organisation who is unable to do so on his or her own .

This tool has resulted in serving justice in many ambits like ensuring prisoners’ rights, Vishakha guidelines: ensuring women’s safety at workplace , changes in labour laws and moving the authorities to court in Bhopal gas tragedy. PIL has since been the driving vehicle of judicial activism.

Why is judicial activism at all necessary when the Parliament can act on popular will to ensure people’s demand? Though Judiciary functions to interpret the legislation, the changing structure and ambitions of society has led to a legislative gap. Judicial activism proved as a tool to bridge this by active rulings like decriminalising the same sex marriage and extending the interpretation of right to life to include right to live with dignity.

In a democratic set up when legislature and executive are unable to impart their duties, judicial activism has come up time and again to ensure access to justice through instruments like PIL and judicial review and emerged as a protector of rights.

Certain instances have hint of ‘judicial enthusiasm’ where judiciary proactively functions to ensure social welfare and for the betterment of society .

Judicial activism, as is sometimes criticised and compared with judicial overreach which is seen as a threat to the basic principle of separation of power, where judiciary interferes into the realms of legislature and executive and other independent bodies. An example of which is when a panel of three members was established to report on the film Jolly LLB2, which was held to have mocked the legal profession. This censorship was seen as an overreach, for the Board of Film Certification already exists for the purpose.

Judicial activism is thus, often criticised to be ‘unconstitutional’, where judiciary is overpowering the other co-equal organs by the means of judicial creativity, perhaps as criticised is an attempt to rewrite the constitution and not owing to what the framers had on mind while drafting it, through the ruling is like basic structure doctrine are under question. The question that arises here is whether judiciary is adhering to follow the principle of separation of power when it embraces judicial activism?

‘Judicial activism, like beauty lies in the eyes of beholder’

Inspired by the constitutional goal of socio-economic justice, judiciary has perhaps been cautious in its activism. It has practised ‘judicial restrain’ in certain regards like Narmada Bachao Andolan v.s Union of India. , S.R Bommai v.s. Union of India, adhering to the principle of separation of power.

Moreover, when judiciary extends the ambit of Article 21 i.e., Right to Life to include right to clean environment, right to good reputation and right to marry on one’s choice. Doesn’t judiciary re-establishes peoples’ trust in democracy?  Or simply makes us admire set up for once?