JUDICIAL ACTIVISM : MEANING AND FORMS
Judicial activism is a state of mind. It is the creativity to fill the gap between the positive and the normative aspects of the law. It is generally understood as connoting that function of judiciary, which represents its active role in promoting justice. It is the pro active approach adopted by the judiciary. A judge who selects a bold course of action is generally understood as representing judicial activism.
The task of the judiciary is not merely to interpret the law but to make it by imaginatively sharing the constitution for the end of social justice.
DEFINITION OF JUDICIAL ACTIVISM
In general sense, judicial activism refers to upgraded version of judicial review. In 21st century the term ‘ Judicial Activism’ has been used in 1,817 articles.
According to Merriam Webster’s Dictionary, Judicial Activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.
According to Justice J. S. Verma, Judicial Activism must necessarily mean the active process of implementation of the rule of law essential for the preservation of functional democracy.
According to Judge Richard Posner, Judicial Activism is a judicial review with an outcome adverse to the result reached through the political process.
The concept of Judicial Activism is “Multi- dimensional”. Chief Judge Frank Easterbook referred to the term ‘ Judicial Activism’ as ” that notoriously slippery term”.
REASONS FOR JUDICIAL ACTIVISM
The reasons for Judicial Activism are as under:
- Due to near fall of the responsible government.
- Due to the lapse and failure on the part of legislature and executive.
- Due to the constant pressure on the Judiciary to maintain balance between 3 organs of the government.
- Due to the fact that legislature left vacuum open.
- Due to the fact, the Supreme court has decided to play an active role in protecting the interest of people.
FORMS OF JUDICIAL ACTIVISM
The forms of Judicial Activism are as under:
The court decides not to act by declaring the case as falling outside the scope of law. Judicial passivism appears when the court chooses not to use its powers in cases where it is supposed. Judicial passivism is interpretation of existing legislation without an attempt to enhance its beneficial aspects. It implies the limiting the role of judges.
In Kalpana Mehta v. Union Of India, (AIR 2018 SC 2493), it has been observed that Judicial passivism is not warranted when fundamental rights of individuals are in jeopardy. For interpreting fundamental rights of individuals, liberal attitude is required.
Judicial formalism happens when the court uses its judicial power in a formalistic and strict way, thus straying from its usual teleological approach. The court decides to act but in a formalist way without taking into account the purpose of the case and the circumstances . Richard A. Posner says, ” Judges apply law, they do not make it”.
In Union of India v. Deoki Nandan Aggarwal, ( 1992 AIR 96, 1991 SCR 3 873), it has been held that the court cannot re- write the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts . The courts cannot add words to a statute or read words into it, which are not there.
Judicial Enthusiasm happens when the court acts substitutio legis i.e., when the court underlines the necessity for fresh legislation and gives the adequate legal basis for it when the law is silent on some matter, the court is not officially entitled to create new legislation. However, it can broader the scope of existing legal bases, therefore pushing the legislature to act.
In U. P. Power Corporation Ltd v. Rajesh Kumar, ( AIR 2012 SC 2728), it was held that, Judicial decorum and discipline principles and norms as laid down by supreme court should be adhered and Judicial enthusiasm should not obliterate the responsibility that is expected from judges.
The court acts Preater Legem i.e., the court submits policy ideas to policy makers when political institutions have left some gaps in legislation. The notion of equity preater legem is particularly important for its function in filling gaps in existing laws. In certain circumstances to fill existing gaps within the law, courts may introduce their policies or guidelines while deciding the cases. It is called as equity preater legem.
In Vishaka v. State Of Rajasthan, ( 1997 6 SCC 241), the apex court issued guidelines that defined sexual harassment and put the onus on the employers as well as other responsible persons or institutions to provide a safe working environment for women.
Judicial creativity happens when the court acts contra legem i.e., the court goes beyond what is provided for, in the law. Here, the court tries to expand the scope of existing law. In India, Article 19(1)(a) and Article 21 are the best examples of Judicial creativity. The courts have interpreted these articles from time to time and expanded their scope. These articles include various rights within their ambit.
In State of Bihar v. Bal Mukund Shah, (2004 4 SCC 640), it was held that the judiciary has a socio- economic destination and a creative function .
In S. P. Gupta v. President Of India, ( AIR 1982 SC 149), it was held that Judiciary has to adopt pro- active approach and it was emphasized that the judiciary has to adopt a positive and creative approach.
Judicial Activism is an upgraded version of judicial review. Judicial activism connotes the assertive role played by the judiciary to force the other organs of government to discharge their assigned constitutional functions towards the people .
The judiciary thus by being a responsible should breathe life into the dead words of the constitution. An activist judiciary is very essential for the ” Rule of law”. A judge should hence, not merely be an interpreter but rather be an ” Activist” who addresses the wants and needs of the deserving .
- Reddy G. B., Judicial Activism in India, ( Gorgia Law Agency, Hyderabad, 2nd edn., 2013).
- Shukla V. N., Constitution of India, ( Eastern book company, Lucknow,13th edn , 2019).
- Kmiec Keenan D., ” The original and current meanings of Judicial Activism”, 92, California Law Review (2004).
- ” Judicial Activism”, Merriam- webster. com legal dictionary“, available at https://www.merriam-webster.com/judicial-activism.
Author: Anirudh Rajeev Joshi,