JUDICIAL ACTIVISM IN INDIA
“The great contribution of judicial activism in India, has been to provide a safety valve in a democracy and a hope that justice is not beyond reach”.
Judicial activism is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and ‘legislate’ from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.
Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not do so as a proxy for the victim or the aggrieved party. But around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, started charting out new horizons of social justice. This period was characterized by not only administrative and legislative activism, but also judicial activism.
Judicial activism earned a human face in India by liberalizing access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of justices V R Krishna Iyer and P N Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalization and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice J S Verma and Justices S P Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the ‘hawala’ route in the Vineet Naraih Case (Jain Hawala Case). A cover-up by the Central Bureau of Investigation (CBI) to protect its political masters was exposed and the court monitored the investigation upholding the principle “Be you ever so high the law is above you.”
The courts on several occasions have issued directions in Public Interest Litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, and unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen’s child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
Though, it becomes necessary for the judicial to step into the shoes of legislature at some points, but it this be let happen. Legislature would also start exerting its power by constituting laws curbing the powers of judiciary. So, judiciary must intervene sometimes for the good, but it should not go up to the point of overreach.
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. Judicial activism has added oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.