Judicial activism refers to a philosophy or approach in which judges interpret the law in a way that goes beyond the text of the Constitution or other legal statutes, and which involves the judge taking an active role in shaping public policy or social change.
Through activism, the Judiciary tries to protect the rights of citizens in cases wherever there is a legislative vacuum or lack of executive actions.
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Scope of Judicial Activism
The concept of judicial activism is often contrasted with judicial restraint, which is the philosophy that judges should defer to the legislative and executive branches of government whenever possible, and that the role of the courts is to interpret the law narrowly and avoid making policy decisions.
Judicial activism is often associated with liberal or progressive judges, while judicial restraint is associated with conservative judges.
Background
The concept of judicial activism has a long history, with roots dating back to the early days of the United States. In the U.S., judicial activism has been associated with landmark decisions such as Brown v. Board of Education (1954), in which the Supreme Court struck down racial segregation in public schools, and Roe v. Wade (1973), in which the Court established a woman’s right to choose to have an abortion.
In India, the concept of judicial activism emerged in the late 1960s and early 1970s, with the Supreme Court taking an active role in interpreting and enforcing the Constitution.
This period was marked by several landmark decisions, including Golak Nath v. State of Punjab (1967), in which the Court held that the Parliament could not amend the fundamental rights provisions of the Constitution, and Kesavananda Bharati v. State of Kerala (1973), in which the Court established the principle of the basic structure of the Constitution, which held that certain fundamental features of the Constitution could not be amended by the Parliament.
Since then, the Supreme Court of India has continued to engage in judicial activism, particularly with respect to protecting individual rights and promoting social justice. Some of the key cases in which the Court has engaged in judicial activism include Maneka Gandhi v. Union of India (1978), Vishaka v. State of Rajasthan (1997), and the Right to Information cases (2011), among others.
Need for Judicial Activism
- Protecting individual rights: Judicial activism can be used to protect the individual rights of marginalized or minority groups who may be subject to discrimination or unequal treatment by the majority. For example, in India, the Supreme Court has used judicial activism to protect the rights of women, Dalits, and other marginalized groups.
- Addressing legislative or executive inaction: In cases where the legislature or executive branch of government fails to act on an issue or protect individual rights, judicial activism can be used to fill the gap and ensure that justice is served.
- Advancing social justice: Judicial activism can be used to advance social justice by promoting equality, fairness, and access to justice for all members of society.
- Upholding the Constitution: Judicial activism can help to uphold the Constitution by ensuring that laws and policies are consistent with its principles and values.
- Promoting public accountability: Judicial activism can help to hold the other branches of government accountable by checking their actions and ensuring that they are acting within the bounds of the law.
- Providing a forum for public debate: Judicial activism can stimulate public debate and discussion about important issues, such as human rights, equality, and social justice, and can help to raise public awareness of these issues.
Judicial Activism: Examples
- Kesavananda Bharati v. State of Kerala (1973): In this case, the Supreme Court established the doctrine of the basic structure, which holds that there are certain fundamental features of the Constitution that cannot be amended by the legislature.
- Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court expanded the scope of Article 21 of the Constitution, which guarantees the right to life and personal liberty, to include a wide range of individual rights and freedoms.
- Vishakha v. State of Rajasthan (1997): In this case, the Supreme Court established guidelines for preventing and addressing sexual harassment in the workplace, which became the basis for legislation on the subject.
- Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to the Supreme Court addressing the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognizance of that matter.
Drawbacks of Judicial Activism
- Overstepping the boundaries of the judiciary: Critics argue that judges engaging in judicial activism go beyond their role as interpreters of the law, and instead become legislators who make policy decisions.
- Lack of accountability: Judicial activism can make judges less accountable to the public, as they are not directly elected and may not reflect the views of the majority.
- Judicial overreach: Critics argue that judicial activism can lead to the judiciary taking over functions that are better left to the legislature or executive, which undermines the balance of power between the branches of government.
- Inconsistency and unpredictability: Critics argue that judicial activism can lead to unpredictable and inconsistent rulings, as judges may base their decisions on their own personal beliefs and values rather than a consistent interpretation of the law.
- Threat to democratic principles: Critics argue that judicial activism undermines democratic principles, as it can lead to decisions that are not supported by the majority of the people, or that conflict with the will of the legislature or executive.
