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What is judicial activism?

Assertion of judiciary and its power is referred to as judicial activism.

india Updated: Apr 13, 2006 11:51 IST

Assertion of judiciary and its power is referred to as judicial activism. It is also defined as an over active judiciary. Few landmark cases that highlight judicial activism are Keshvanand Bharati Vs. Kesala, Minerva Mills Vs. Union of India, India of Gaudlis Vs. Raj Naraian & SP Vs. Union of India etc.

The active role of the Indian judiciary, particularly that of the Supreme Court, has been appreciated both within and outside India. The independence ensured through the constitutional provisions in favour of the judiciary and subsequently strengthened by the judicial interpretation has definitely contributed to the present status of the Indian judiciary. Yet, in this sphere of judicial activism, there are also a few coexisting misconceptions that need to be understood in order to appreciate the activist role of the judiciary in India better.

Public Interest Litigation (PIL) made judicial activism possible in India. Before the court accepts a matter for adjudication, it must be satisfied that the person who approaches it has sufficient interest in the matter. The test is whether the petitioner has locus standi to maintain the action? This is intended to avoid unnecessary litigation. The legal doctrine that no one except the affected person can approach a court for a legal remedy was holding the field both in respect of private and public law adjudications until it was overthrown by the PIL wave.

PIL, which is a manifestation of judicial activism, has introduced a new dimension to judiciary's involvement in public administration. The issue of locus standi and the procedural complexities have taken a back seat in the causes brought before the courts through PIL.

In the beginning, the PIL was confined only to improving the lot of the disadvantaged sections of the society, who by reason of their poverty and ignorance was unable to seek justice and, therefore, any member of the society was permitted to file a case for appropriate directions.

Consequently, the expectations of public went high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions increased. Beginning with the Ratlam Municipality case the sweep of PIL had encompassed a variety of causes.

Golak Nath case is also an example of judicial activism in that the Supreme Court. For the first time by a majority of 6 against 5, despite the earlier holding that Parliament in exercise of its constituent power can amend any provision of the Constitution, declared that the fundamental rights as enshrined in Part III of the Constitution are immutable and so beyond the reach of the amendatory process.

The declaration of law by the Supreme Court that Indian Parliament has no power to amend any of the provisions of Part III of the Constitution became the subject matter of very animated discussion.

Kesavananda Bharati had given a burial to the controversy of amendment of any of the provisions of the Constitution. By a majority of seven against six, the court held that under Article 368, Parliament has undoubted power to amend any provision in the Constitution but the amendatory power does not extend to alter the basic structure of the Constitution.

A criticism that we often hear about judicial activism is in the name of interpreting the provisions of the Constitution. The allegations are that judiciary very often rewrites them without explicitly stating so. In the process, some of the personal opinions of the judges metamorphose into legal principles and constitutional values.

Another criticism is that in the name of judicial activism, the theory of separation of powers is overthrown and the judiciary is undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them.