The concept of judicial activism came to the fore when in January 1947 Arthur Schlesinger Jr. introduced the term in the Fortune magazine in his article ‘The Supreme Court: 1947’ classifying the courts into three categories:
- Judicial activists,
- Champions of self-restraint, and
- A middle group.
The term ‘judicial activism’ is being used as a legal term generally in the context that the court rulings might be partially or fully based on the judge’s political or personal considerations, rather than existing laws. In this context the topic of judicial activism became a source of controversy in the U.S. political landscape for some time.
Constitutional and legal scholars have given their divergent views on this concept, for example, David A. Strauss says that judicial activism can take at least three forms:
- The act of overturning laws as unconstitutional.
- Overruling judicial precedent.
- Ruling contrary to a previously issued constitutional interpretation.
Black’s Law Dictionary judicial activism is a ” judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies”. In the politico-legal context in the US, judicial activism became visible in Brown v. Board of Education of Topeka, 347 US 483 (1954) when the Supreme Court overruled an earlier judgment saying that segregation of blacks and whites was unconstitutional. This ruling flew in the face of the legal doctrine of stare decisis, which requires judges to uphold prior rulings of higher courts. This is also referred to as case precedent. In this case, rather than relying on the ruling in Plessy v. Ferguson 163 US 537 (1896), which was a similar case, the Supreme Court overruled it. However, it raised eyebrows on the issue that the Court did not consider the existing rules and had given its ruling exercising what was called judicial activism.
Since then the concept of judicial activism has gained importance in the US system and it makes the US Supreme Court a powerful judicial body with the power and authority to administer justice, though that justice must be within the bounds of the law. In cases of ambiguity in laws or lacking in specific direction as applied to a particular case, the judicial system is also responsible for interpreting the laws liberally and ensuring that they are applied correctly on both the state and federal levels. Thus, in the US it emerged as one of the tools to deliver justice despite the fact its Constitution does not expressly mention any such concept.
By such facts, it is now evident that judicial activism is an approach to exercise judicial review of constitutional or legal provisions either in case of ambiguity or in lieu of emerging or changing trends in the social-economic-political system when new rights also emerge are required to be recognized. It’s a proactive step by the judiciary and shall not be considered as a step to overcome inaction.
In the Indian context also, the concept of judicial activism has assumed significance in the last couple of decades. The Preamble to the Constitution of India expressly writes that social, economic and political justice shall be secured for the people. The Constitution creates the political design (Union of States) and the authorities (Legislature, Executive, Judiciary) for achieving this goal. Of late, considering the widespread income inequalities and rampant corruption it appears that the Executive has not been able to deliver the services properly, hence the Judiciary has come forward and through its rulings has guided the Executive. Very often this situation makes us feel that the Judiciary has stepped into the domains of either legislature of the executive. However, one needs to delve into the details of the concept of public interest litigations to understand the meaning and significance of judicial activism and, also of judicial restraint.
Public Interest Litigations
The concept of public interest litigation is believed to have originated in India in Mumbai Kamagar Sabha vs. Abdul Thai AIR 1976 SC 1455 and was initiated in Akhil Bharatiya Soshit Karmachari Sangh (Railway) v. Union of India 1981 AIR 298, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common grievances. The Court enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar v. Union of India AIR 1981 SC 149 and the ideal of ‘Public Interest Litigation’ was finally brought to the fore in S.P. Gupta v. Union of India AIR 1982 SC 149. The decisions of the Supreme Court gave rise to the following directives related to the protection of rights which could be considered as the outcome of this phase of judicial activism in India:
- Exercise of State power to eradicate corruption may result in unrelated interference with individuals’ rights.
- Social justice needs liberal judicial review of administrative action.
- Restrictive rules of standing are antithesis to a healthy system of administrative action.
- Activism is essential for participative public justice.
It is evident from such facts that anyone who is concerned with public interest shall be given an opportunity to move the court. It may also be said here that the Constitution of India through fundamental rights, directive principles, separation of powers and an independent judiciary provide the foundational basis of judicial activism in India have now institutionalised the concept of public interest litigation.
Critically, on occasions it has been said that PILs have become a tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs. The framers of Indian constitution did not incorporate a strict doctrine of separation of powers but envisaged a system of checks and balances. Policy-making and implementation of policy are conventionally regarding as the exclusive domain of the executive and the legislature.
The credibility of PIL process is now adversely affected by the criticism, as said earlier that the judiciary is overstepping the boundaries of its jurisdiction and that it is unable to supervise the effective implementation of its orders. Sometimes PILs may also be misused by the people agitating for private grievance in the grab of public interest and seeking publicity rather than espousing public cause.
The legislature, the executive and the judiciary should respect boundaries laid out in the Constitution and work together to strengthen Indian democracy. Maintaining a balance between the three arms of the Constitution, it should be remembered that this balance is the backbone of the Constitution. This is because the balance had helped the country stay on the course of democracy even during emergency.
To cite BR Ambedkar, “Legislature should have the independence of making laws, the executive should have independence in taking decisions and Supreme Court should have the independence of interpreting the Constitution.” In this context, it is crystal-clear that PILs cannot be a substitute for governance. It is generally perceived that the Government was not happy when the Supreme Court decided to strike down the National Judicial Appointment Commission (NJAC). However, the Court was very clear in saying that the independence of judiciary is a part of the Basic Structure of the Constitution which cannot be destroyed by political process. In fact, the Supreme Court believes in the supremacy of the Constitution and the power of judicial review is meant to strike a balance.
While recognising, respecting and accepting the separation of powers, the Supreme Court had refused to hear several PILs as they dealt with policy matters or were in the legislative domain.
Hence, it could be said that Judiciary is not really interested to make policies but the policies or laws very often need interpretation followed by their proper implementation. To recall here, proactive actions by the Courts became prominent after the emergency was revoked in 1977. It is also to be recalled here that emergency was proclaimed in 1975 on the ground of internal disturbance which was definitely, politically motivated. Hence the Constitution (44th Amendment) Act, 1978 replaced the words ‘internal disturbance’ with ‘armed rebellion’ to prevent any possible misuse of the ground in future. Through such proactive steps the Supreme Court contributed to a greater extent to the protection of prisoner’s rights, prevention of arbitrary arrest and elimination of bonded labour.
Judicial Activism and Fundamental Rights
The Supreme Court has been very instrumental in interpreting the provisions to protect the fundamental rights and thereby the democratic values. This was very clearly noticeable in Menaka Gandhi v. Union of India AIR 1978 SC 597 when the Court overruled its previous decision on Article 21 of the Constitution in A.K. Gopalan v. State of Madras AIR 1950 SC 49 saying that Articles 14, 19 and 21 are interrelated on the grounds of human rights, natural justice and rule of law. While interpreting the Right to Life, the Court ruled that innumerable rights emerge from this provision such as the right to education, right to speedy trial, right to medical aid to workers and so on.
The Supreme Court in its activist role directed providing a second home for Asiatic Lions in Centre for Environmental Law V. Union of India (writ petition 337/1995 decided in 2013) on the ground that protecting the environment is part of Article 21. The Court also held that there is a necessity of an exclusive parliamentary legislation for the preservation and protection of endangered species so as to carry out the recovery programmes before many of the species become extinct. Further, the right to sleep was held to be part of Article 21 in In re Ramlila Maidan (2012) S.C.I.1.
Moreover, two case references will also justify the critical role being played by the Court in safeguarding the rights. In Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 the Court held that passive euthanasia i.e. withdrawal of life support to a person in permanently vegetative state may be allowed subject to approval by the High Court. On another occasion the Court also has included the right to privacy in the meaning of Article 21. All these facts reveal that whether it is a matter of rights or environment, the Judiciary has always taken initiatives though criticized sometimes but the main object is to protect the constitutional values and doctrinal aspects.
Conclusively, the concept of judicial activism shall not be considered antagonistic to the constitutional philosophy nor it should be called an interference in the acts of either legislature or executive, rather it shall be defined as such that it is a constructive interpretation of ambiguous provisions of the Constitution or a law for the delivery of per capita justice. However, it should also be equally important that the judges follow the principle of ‘judicial restraint’. It is in fact, a principle of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicial restraint will help judges respect stare-decisis, or the doctrine of precedent also for protection of constitutional design.