‘Judicial activism’ is the current term in use. If we have a judiciary it is to be hoped that its members will be active, but the term activism of course implies intervention. According to Justice J.S. Verma of the Supreme Court “The role of judiciary in interpreting existing laws according to the needs of times and filling in the gaps appears to be the true meaning of judicial activism.” Judicial activism helps to advance ‘the course of law and it has been a continuous process in India.
In this context the doctrine of the basic structure of the constitution limits the scope of amending power of Parliament in substantial ways. The judgment enunciating the concept of the basic structure of the constitution may be described as judicial activism and it come more than twenty years ago. A decade later come the public interest litigations (PIL) in favour of social action and the court’s accepting its reality and stepping in to set things right.
Ideologically, such litigation and judicial intervention born of it has transformed the “classical liberal right model enshrined in the constitution (part III fundamental rights) into a paradigms of people’s rights.” These cases have broadened the scope of fundamental rights to include right to dignity, shelter, health, environment, privacy, they have given rise to fresh forms of judicial scrutiny of governmental institutions whether they be hospitals, prisons or juvenile homes.
The question is how did public interest litigation grow. Public spirited individuals began to seek redress in matters affecting not them individually, but the rights of people in general. The term public interest litigation was initially encouraged in 1980’s by justice P. N. Bhagwati.
There are three wings to a polity. These are—Executive, Legislature and Judiciary. Each generally has its own role to perform. Outlining the guiding principles of judicial activism Prof. Jowell—said that judges may intervene if the executive exceeds the terms of power confirmed on them. So is judicial intervention to be invited if the state refuses to comply with the statutory provisions. It is also to be seen that policy is not scarified for principle. In the present era when governments are weakened, judges in the circumstances, provide better guideposts to the state so that policy is not ignored.
Judicial activism becomes necessary to put a check on tyranny born out of a temporary political majority in legislature which might otherwise seek to rewrite the constitution in order to be entrenched in power.
In the same way judicial intervention becomes inevitable when the executive and the legislature abandon their duties and responsibilities. There are fears in some quarters that the judiciary is overstepping its authority by interfering into spheres reserved for Parliament and the executive. Policy-making and administration or carrying on the business of government is the executive’s job, to legislate is the prerogative of legislature, after due debate and discussion of public interest involved.
Judicial activism prompted by public interest suits ranging from cases of out-of-turn allotment of government houses without proper reason, discretionary allotment of petrol pumps and LGP connections to those having influence with highly placed bureaucrats and politicians, the fraud involving ‘fodder scan’ in Bihar, and of course, the infamous “Hawala cases,” the Supreme Court has given firm decision. The court has assumed the role of issuing allocations telling the CBI to investigate thoroughly land not to close any case without the court’s order, though this is a job of executive. But what are the citizens to do if the executive authority would not do anything about the spreading canter of corruption in public life, and the legislature, including the highest one, is unable to do anything except to paralyse itself? Having lost all hopes of any self-reform by the political system, most Indians have started viewing politicians of all hues with cynicism, even content. They look up to the higher judiciary as the only possible redeemer of the despairing situation.
The Indian constitution allows a person to move the Supreme Court directly for redress of violation of basic right under Article 32. If the decisions of the coordinate branches of government are constitutionally correct, the judiciary has no right to interfere. But if a decision violates a right of Indian people it is not constitutionally correct, hence judicial intervention is valid.
However, just as the ministers, bureaucrats and legislators are not above criticism, similarly, the judges of the High Court and the Supreme Court cannot be presumed to be beyond the pole of scrutiny. Judicial activism should not become judicial fundamentalism.
It is also necessary that the effort lot redemocratise India is not left to judges alone. It is the duty of every thinking citizen of this country to help the judiciary in this effort. The media, too, has a role in educating the public and crusading for a clean and efficient administration.