\n<\/p>\n
\u201cJudicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern.\u201d [1]<\/strong><\/a><\/em><\/p>\n \u2013 Justice A. H. Ahmadi, the former Chief Justice of India<\/p>\n Today, the judiciary has been taking a more proactive role in interpreting the laws\u00a0as the polity has grown more complex, and\u00a0where there are no laws, the court has\u00a0expanded\u00a0the application of existing laws to decide on issues that are brought before it for decisions. However, the intellectual elites prefer\u00a0to use the phrase \u201cJudicial Activism\u201d in recent years to describe their level of unhappiness with the judiciary\u2019s increasing role in India\u2019s legislative democracy.\u00a0 The fundamental focus of the complaint is that the court is running the nation\u00a0and, in the opinion of some, damaging it through interfering with legislative and executive\u00a0responsibilities through its orders. One of their defenses is that the courts\u2019 scope for judicial review has been extended as a result of the broadened definition of locus standi, especially when it comes to PIL.[2]<\/a> \u00a0This article attempts to demonstrate how judicial activism is a fundamental aspect of the judicial system and develops as a result of several factors. It also tries to investigate if the growing trend of judicial activism could indeed be a cause for concern within the corporate world. <\/p>\n As courts become more actively involved in shaping and interpreting laws, it introduces an element of uncertainty for businesses. Judicial decisions may have a significant impact on corporate operations, regulations, and legal landscapes. For corporations, this increased judicial intervention means they need to stay vigilant and adaptable to evolving legal interpretations. It might also lead to more complex compliance requirements, potential legal challenges, and a need for strategic adjustments in business practices. But judicial activism, when viewed positively, can be seen as a force for justice and societal progress. Rather than being a source of worry, it can contribute to a fair and equitable legal environment.<\/p>\n Democratic politics\u00a0operate very similarly to a market. It functions best when there is fierce competition\u00a0among the players, which encourages them to adapt to customer preferences. But when rulers suppress competition and try to\u00a0bend the norms of political activity\u00a0in their favour, the system becomes \u201cdysfunctional\u201d. It is essential that all state organs operate within their sphere of responsibility inside the framework of our constitution, which places a premium on the separation of powers. A few intrusions\u00a0may occur, but that is to be expected when the \u201cdomains\u00a0overlap\u201d\u00a0and the invisible line of control is quite hazy.[4]<\/a> \u00a0However, the argument that the judiciary is running the country\u00a0and, in the opinion of some, damaging it by dictating policy\u00a0to the executive branch is couched in idealistic thinking that ignores the \u201creal-world pressures\u201d\u00a0that drive judicial decisions.<\/p>\n The best case to illustrate this point is the Supreme Court\u2019s well-known ruling in the Vishakha case[5]<\/a>, where the court had\u00a0set down regulations to safeguard women from sexual harassment at work\u00a0after being horrified by the rising number of crimes against women and the lack of adequate legislation. In a typical instance of judicial legislation, the judges established a law and endeavoured to enforce it, but they also made it clear that the rules would only be regarded as law until the legislature enacts a proper statute on sexual harassment. This occurred in 1997, and until a decade of\u00a0this judgement, our politicians had\u00a0not passed a legislation on the matter! If the Supreme Court\u2019s method was \u201cappropriate\u201d or whether \u201cjudicial excess occurred\u201d is a matter that demands an answer from the critiques.[6]<\/a><\/p>\n The question of \u201cjudicial activism or overreach\u201d\u00a0must thus be examined in its political setting. The \u201cpublic\u2019s confidence in and credibility\u201d\u00a0with the political elite has reached an all-time low today. Anyone can see how \u201ccynical\u201d\u00a0the public is becoming and how the political elite has failed miserably\u00a0to live up to expectations. The courts must step in to uphold the\u00a0grandeur of the law as it must\u00a0be upheld under such circumstances, and the public\u2019s weakening trust in justice must be preserved. It is correct to note that the \u201cinaction\u201d of the other branches of the state in most instances leads to what is termed \u201cjudicial activism\u201d.<\/strong><\/p>\n The \u201cexecutive class\u2019s lack of compassion\u201d\u00a0and \u201cindifference\u201d\u00a0cannot be ignored by the courts of justice. When the court is informed\u00a0of\u00a0and satisfied\u00a0with grave abuses of fundamental human rights, it cannot throw up its hands in defeat\u201d\u00a0and turn a blind eye. The judicial system cannot dodge\u00a0or delay\u00a0decisions. Citizens who believe the legislative is unresponsive\u00a0and the administration is uncaring\u00a0would descend on the streets\u00a0if the judiciary closed its doors to them, which would be detrimental to both the rule of law and the democratic operation\u00a0of the state. Hence, it\u2019s safe to say that the judiciary in our nation has and must\u00a0consistently stand\u00a0up for democracy, democratic principles, and constitutionality. [7]<\/a><\/p>\n The extended notion of \u201clocus standi\u201d\u00a0concerning \u201cPIL\u201d, critics claim, has occasionally broadened the jurisdictional scope of courts\u00a0conducting judicial review. However, it\u2019s crucial to realize that the Supreme Court has created this\u00a0tool that allows it to consider issues, particularly unconventional and unpopular ones\u00a0pertaining to the poor, the underprivileged, and the deprived\u00a0who, in the absence of a platform, to seek redressal of their grievances. They now have immediate access\u00a0to the supreme court. This is the public interest litigation\u00a0or social action litigation instrument, according to Upendra Baxi. Numerous topics, including \u201cbonded labour\u201d, \u201cprison conditions\u201d, the \u201ceducation of prostitute\u2019s\u00a0children\u201d, etc., have been examined by the Supreme Court as a result of PILs.<\/p>\n Not only that, but there have also been cases involving the pavement in Mumbai (Olga Tellis v. Bombay Municipal Corporation[8]<\/strong><\/a><\/em>)\u201d, Delhi hawkers and street vendors (Saudan Singh v. NDMC & others<\/em>[9]<\/a>), free and mandatory education for all children, and the eviction of people from their natural habitats as a result of enormous civil projects (dams, etc.). The court has demonstrated foresight and a progressive agenda\u00a0in this regard. It has aided such underprivileged people\u00a0in their endeavors to achieve some measure of justice and dignity. According to Baxi, \u201cactivism\u201d\u00a0has helped to \u201cdefend, promote, and preserve human rights\u201d as well as \u201credemocratize the Indian polity.\u201d.[10]<\/strong><\/a><\/strong> One of the main justifications for exercising restraint in judicial orders\u00a0is\u00a0that judicial activism\u00a0may negatively influence the independence the judiciary enjoys, according to Justices AK Mathur and Markandey Katju, whose comments on this drew a lot of public attention. As stated by the judges: \u201cThe lesson of this tale is that politicians and others will inevitably respond if the court does not show discipline and overstretches its bounds. When this happens, politics will intervene and limit the judiciary\u2019s authority or even its independence.\u201d But are they really advocating judicial restraint or literally\u00a0calling for a \u201csubmissive judiciary\u201d?[11]<\/a> The social, economic, and political facets of justice\u201d\u00a0should, in theory, be left primarily in the hands of legislators, and it should be assumed that the \u201centire legislative process influenced by ideas of justice, reason, and fairness. But as was previously mentioned, idealism is regrettably ineffective\u00a0in a society that is rife with entrenched interests, corruption, and poverty. Consequently, it only seems sensible that the court plays a relatively proactive role in interpreting the true meaning of the law in the greater advantage of the public. [12]<\/a><\/p>\n The \u2018Basic Structure Doctrine\u2019s\u2019 usefulness is also disputed by academics because of its anti-democratic underpinnings. It is true that a constitutional tool\u00a0for reform is required for the Constitution\u2019s orderly development, which leads to the process of constitutional amendment. But there is always a chance that the government might abuse its power\u00a0and become an autocratic tyranny\u00a0when it is endowed with such unchecked\u00a0power. For some, it might be acceptable to utilize the amending authority\u00a0to make appropriate adjustments in order to fulfil the promise made by the enlightened luminaries\u00a0who serve as the people\u2019s representatives in constituent bodies. However, it would be abhorrent and unequivocally condemnable\u00a0to seek to utilize such a process to repeal or overturn the Constitution\u2019s fundamental foundation. Indeed, one can even view the situation as a great hoax against the people who gave themselves this Constitution.[13]<\/a><\/p>\n It will be a show of submission to the whims of majoritarianism if a constitutional change is blindly accepted with the broadest possible significance. The current legislature may abuse its power to violate the Constitution due to \u201cindividual\u201d, \u201cgroup\u201d, and \u201cinstitutional interests\u201d. Since history has repeatedly shown that unlimited power\u00a0leads to absolute corruption, allowing it to act arbitrarily, as was shown during the declaration of a national emergency in 1975, would effectively entail legitimising \u201cconstitutional hara-kiri\u201d. Therefore, it\u2019s crucial to implement certain protections, such as refraining from arbitrary\u00a0or superficial\u00a0constitutional amendments.[14]<\/a><\/p>\n As Justice Chandrachud had exquisitely laid down,<\/p>\n \u201cAmend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity\u201d.[15]<\/strong><\/a><\/em><\/p>\n Then\u00a0criticisms also raise the question of how an unelected entity like the court can have such authority when the legislative majority reflects the will of the people. It is important to understand that in India, even without obtaining a majority of votes, a party or coalition of parties\u00a0can win a legislative majority and establish the government. The logic goes that such a \u201ccoalition\u201d\u00a0shouldn\u2019t be permitted to change the \u201cfundamental provisions of the Constitution\u201d, which the Constituent Assembly enshrined after extensive discussion and debate.<\/p>\n The parliament has occasionally veered off course and begun misusing the amending powers given\u00a0to it in the past and even in the present. The Indian Constitution is a wonderful gift to \u201cWe the People,\u201d but the Parliament has abused it to forward its own agenda at the expense of the will of the populace. Due to the amending power\u00a0granted by Article 368, the Parliament made several unfavourable adjustments.<\/p>\n The internal emergency\u00a0declared by Indira Gandhi in 1975, after she had been unseated\u00a0by the Allahabad High Court for violating an electoral law, helps\u00a0to the judiciary\u2019s success in addressing the aforementioned issue. The 39th Constitution Amendment Bill was passed in part to overturn this decision and in part to preserve more authority\u00a0for the Parliament. In Indira Gandhi v. Raj Narain<\/em>[16]<\/a>, this amendment was contested on the grounds that it upset the Constitution\u2019s fundamental structure. Although Indira Gandhi\u2019s election was affirmed based on merits, the Supreme Court invalidated the amendment on the grounds that it was incompatible with the fundamental principles of the Constitution. Another justification for the court\u2019s activism\u2019s validity was this verdict.[17]<\/a> The \u201cpoor and disenfranchised\u201d, for whom the legal system is their final line of defense, would prefer that it be \u201cmore activist\u201d.<\/p>\n Today, it is believed that the Supreme Court, rather than the Parliament or the government, is more sympathetic to the concerns of the oppressed\u00a0and more indicative of a consensus\u00a0in a multicultural society made up of many \u201ccultures\u201d, \u201ctraditions\u201d, and \u201ccompeting interests\u201d. The former two are seen to be split by \u201ccasteism\u201d, \u201cregionalism\u201d, and \u201ccommunalism\u201d, and are\u00a0\u201cpolitical and\u00a0opportunistic\u201d, but the court is thought to be relatively\u00a0more unbiased and above these difficulties.[18]<\/a><\/p>\n Critiques also\u00a0claim that the term \u201cbasic structure\u201d has a very broad definition and that not defining it\u00a0would contradict the point of having one. Although it is true that the term or the phrase basic structure has not really been defined by the courts, but\u00a0the judiciary has repeatedly provided\u00a0the fundamental components\u00a0that make up basic structure. It\u2019s also critical to keep in mind that constitutional provisions cannot simply be separated into those that express rights in general terms\u00a0and those that express non-rights in particular terms. It should not come as a surprise that such characteristics exist. Any regulation must be somewhat general or broad, and the wording of the constitution is under special pressure to be as broad as possible.<\/p>\n In a similar line, generality encourages the longevity of constitutions. Due to the intricacy of governance, it would be challenging to properly define all of the government\u2019s powers\u00a0even if it were wanted. Because of this, constitutions are full of ideas that are expressed in general or abstract words\u00a0and to which judges are required to add further elements, even in matters of structure.[19]<\/a><\/p>\n As a result, we might draw the conclusion that judicial activism in India covers a legislative gap. Judicial activism strengthens democracy\u00a0and restores the confidence of the general public in the rule of law. But at the same time I do agree that judges must strike a delicate balance between activism and excessivism\u00a0while still becoming activists which means that they\u00a0must try to\u00a0refrain from taking on subjects that, although being urgent, are outside the purview of the court. The practice may be broadened, but it should stay within the boundaries of the courts. They must only be \u201cactivists\u201d.[20]<\/a> In the words of Upendra Baxi, too little activism would signify under-enforcement of constitutional notions of good governance, rights, and justice. Too many results in over-enforcement of these ideals, imperiling the legitimacy and efficacy of judicial power.<\/p>\n REFERENCES:<\/p>\n [1]<\/a> A.M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability<\/em> , 4 S.C.C. J. v.1, 1-10 (1996).<\/p>\n [2]<\/a> SK Patnaik and Swaleha Akhtar, JUDICIAL ACTIVISM IN INDIA\u202f: MYTH AND REALITY<\/em>, 58 Indian Journal PS 88, 79\u201392 (1997)<\/p>\n [3]<\/a> Shouvik Kumar Guha & Moiz Tundawala, Constitution: Amended it Stands?,<\/em> 1 NUJS L. Rev. 533 (2008)<\/p>\n [4]<\/a> Sidharth Sharma, Myth of Judicial Overreach<\/em>, 43 Economic and Political Weekly 17, 15\u201318 (2008)<\/p>\n [5]<\/a> 1997 ALD CRI 2 604<\/p>\n [6]<\/a> supra note 4<\/em><\/p>\n [7]<\/a> A. S Anand, , JUDICIAL REVIEW \u2013 JUDICIAL ACTIVISM \u2013 NEED FOR CAUTION<\/em>, 42 Journal of the Indian Law Institute 157, 149\u201359 (2000)<\/p>\n [8]<\/a> 1985 SCC 3 545<\/p>\n [9]<\/a> 1992 AIR SC 1153<\/p>\n [10]<\/a> Ravi P Bhatia, EVOLUTION OF JUDICIAL ACTIVISM IN INDIA<\/em>, 45 Journal of the Indian Law Institute <\/em>267, 262\u201374 (2003)<\/p>\n [11]<\/a> supra note 4<\/em><\/p>\n [12]<\/a>Id.<\/em><\/p>\n [13]<\/a> supra<\/em> note 3<\/p>\n [14]<\/a> Id.<\/em> [15]<\/a>Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.<\/p>\n [16]<\/a> 1975 AIR SC 2299<\/p>\n [17]<\/a> Id.<\/em> [18]<\/a> supra note 10<\/em><\/p>\n
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