Essays on the meaning, causes and evaluation of Judicial Activism in India

Its emergence can be traced back to 1893, when justice Mahmood of Allahabad High Court delivered a dissenting judgement.

It was a case of an undertrial who could not afford to engage a lawyer. So the question was whether the court could decide his case by merely looking his papers. Justice Mahmood held that the pre-condition of the case being “heard” could be fulfilled only when somebody speaks.

As to its meaning Judicial Activism is not a distinctly separate concept from usual judicial activities. The word ‘activism” means “being active”, ‘doing things with decision’ and activist is the ‘one’ who favours intensified activities. Justice Krishna Iyer observed every judge is an activist either on the forward gear or on the reverse.’

Judicial Policy making can be either an activity in support of legislative and executive policy choices or in opposition to them. But the latter one is usually returned to as judicial activism. The essence of true judicial activism is the underling of decision which are in tune with the temper and tempo of the times.

Activism in judicial policy making furthers the cause of social change or articulates concepts such as liberty, equality or justice. It has to be an arm of the social revolution. An activist judge activates the legal mechanism and makes it play a vital role in socio-economic process.

Causes:

The following trends were the cause for the emergence of judicial activism expansion of rights of hearing on the administrative process, excessive delegation without limitation expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard Kites of interpretation in its search to achieve economic, social and educational objectives: and passing of orders which are unmarkable.

Evaluation:

In the first decade of independence, activism on part of the judiciary was almost nil with political stalwarts running the executive and the parliament functioning with great enthusiasm, judiciary went along with the executive.

In the 50s through half of the 70s the apex court wholly held a judicial and structural view of the constitution. In the famous the declaration of emergency, the Supreme Court declared that the executive had no right to tamper with the constitution and after its fundamental features.

But it could not avert emergency declared by Mrs. Gandhi and it was only at the end of it that the apex court and the lower courts began to continuously intervene in executive as well as legislative areas.

The first major case of judicial activism through social action litigation was the Bihar under trials case. In 1980 in came in the form of a writ petition under Article 21 by some professions of law revealing the barbaric conditions of detention in the Agra protective Home, followed by a case against Delhi women’s Home field by a Delhi law faculty student and a social worker. Then three journalists filed a petition for the prohibition of the prostitution trade in which women were bought and sold as cattle.

Taking cognizance of custody death Supreme Court ordered the police not to hard with a man arrested purely on suspicion not to take a woman to the police station after dusk. High Court judges visited the prisons to check the living conditions of prisoners.

In the year 1993 in just a month the apex court proclaimed judgement protecting the rights of innocents held in Hazaratbal Mosque in Srinagar defining the constitutional powers of the chief election commissioner, threatening multi-crore rupees industries with closure if they continued to pollute the Ganga and Taj Mahal and brought all government and semi government bodies under the Purview of the consumer protection Act.

In a 1994, judgement it asked the chief of Army staff to pay Rs. 6.00.000 to the widow and two children of an army officer who died due to the callousness of the authorities concerned some 16 years before.

The controversial 27% reservation of jobs in Central Government and public sector undertakings was referred to the Supreme Court by the Rao government.

The court decision favoured castes and class but the enemy lawyers’ were exempted from this reservation. Similarly the court put a curb as the operation of capitation fee in colleges in Karnataka.

The Supreme Court giving directions to the CBI and summoning the head of the CBI to report on the hawala case reveals the breakdown of other machineries of the government.

The court interference with the CBI working became inevitable in the wake of the factices of delay and technical evasion that was undertaken by the investigative agonies.

As justice A.M. Ahmadi had opined “Judicial activism has been more or less thrust upon Indian judiciary.” The reluctance of the legislature and the executive to take hard an unpleasant decisions have compelled the judiciary to become active.

When a sensitive issue remains unattended to an unresolved people become restive and seeks the courts to come across a solution. But this era of judicial activism is a temporary one. In our democracy the legislative, the executive the judiciary and the media have their mutually reinforcing roles which cannot be urged by a single authority.