Judicial Activism Methods
There are various methods of judicial activism that are followed in India. They are:
- Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
- PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is an interest of large public involved; the aggrieved party does not file the petition).
- Constitutional interpretation
- Access of international statute for ensuring constitutional rights
- Supervisory power of the higher courts on the lower courts
- It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
- Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian Judiciary has been considered as the guardian and protector of the Indian Constitution.
- There are provisions in the constitution itself for the judiciary to adopt a proactive role.
- Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
- According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
- Judicial activism counters the opinion that the judiciary is a mere spectator.
Pros and Cons associated with Judicial Activism India
- Judicial Activism sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
- In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
- It places trust in judges and provides insights into the issues. The oath of bringing justice to the country by the Judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits. Thus showing the instilled trust placed in the justice system and its judgments.
- Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents.
- In the issue of majority, It helps address problems hastily where the legislature gets stuck in taking decisions.
- Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way, it limits the functioning of the government.
- It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law.
- The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
- Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives.
- Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
Judicial Review and Judicial Activism
- The former is that form of latter in which judges participate in law making policies,i.e., not only they uphold or invalidate laws in terms of constitutional provisions, but also exercise their policy preferences in doing so
- The concept of judicial activism is inherent in judicial review, which empowers the court to uphold the constitution and declare the laws and action inconsistent with the constitution 1 as void. Judicial activism is necessary for ensuring proper discharge of duties by other organs.
- Judicial activism stresses the importance of judicial review and a powerful judiciary in the protection and promotion of certain core rights
- The expanded concept of locus standi in connection with PIL, by judicial interpretation from time-to-time, has expanded the jurisdictional limits of the courts exercising | judicial review.
- This expanded role has been given the title of judicial activism” by those who are critical of this expanded role of the judiciary.
- Judicial activism, as regards constitutional cases, falls under the rubric of what is commonly called judicial review, and at the broadest level, it is any occasion where a court intervenes and strikes down a piece of duly enacted legislation.
- The Supreme Court judgments in Golak Nath Case (1967), Kesavanand Bharti Case (1973), Menaka Case (1973), Vishaka case (1997) etc are some of the examples of the Judicial Activism.
- “Judicial overreach” occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate.
- It means the Court has violated the doctrine of separation of powers by taking on the functions such as law enforcement, policy making or framing of laws or interfering in day to day activities of the executive.
- This is a situation where the court goes beyond its jurisdiction as stated in the constitution and other legal documents.
- The courts also encroach upon the role of the executive by taking executive decisions.
Some examples of Judicial Overreach can be:
- Judiciary can introduce policies which are the domain of the legislature.
- Judiciary can lay down regulations which are the domain of the executive.
- Court decisions can impose a fiscal burden on the state, in the form of expenditure incurred or revenue foregone, which is the domain of both the executive and the legislature.
- Amending constitutional provisions.
- Introducing new meanings to the constitutional or legal provisions which did not exist earlier.
- Suggesting to add provisions in any legal statute.