Write an answer the following question. Full Marks 15
Judicial activism by higher judiciary now a days supplements functions of executive in many aspects of governance. Critically evaluate this statement with suitable examples.
Answer -
Judicial activism is the phenomenon of the judiciary taking an active role in interpreting and applying the law, sometimes going beyond the traditional precedents and constitutional provisions. Judicial activism by the higher judiciary in India has been seen as a response to the failure or inaction of the executive and the legislature in fulfilling their constitutional obligations and protecting the rights of the citizens. However, judicial activism also raises some questions about the separation of powers, judicial overreach, and accountability of the judges.
Some examples of judicial activism by the higher judiciary in India are:
1 The introduction and expansion of public interest litigation (PIL), which allows any person or group to file a petition in the Supreme Court or the High Courts for the enforcement of fundamental rights or public interest, without being directly affected by the issue. PIL has enabled the judiciary to address various issues such as human rights, environmental protection, corruption, prison reforms, etc.
2 The development and application of the basic structure doctrine, which limits the power of Parliament to amend the Constitution and preserves its core features such as democracy, secularism, federalism, judicial independence, etc. The judiciary has used this doctrine to strike down several constitutional amendments that were seen as violating the basic structure.
3 The issuance of guidelines and directions to fill in the gaps in legislation or executive action, such as the Vishaka guidelines on sexual harassment at workplace, the guidelines on police reforms, the directions on environmental protection, etc. The judiciary has also monitored the implementation of its orders and directions by appointing committees or commissioners.
Judicial activism by the higher judiciary can be seen as a positive and necessary intervention in many aspects of governance, especially when there is a lack of effective and responsive action by the executive and the legislature. Judicial activism can also serve as a check and balance on the other organs of the state and prevent arbitrary or unconstitutional actions. Judicial activism can also promote social justice and human rights by giving voice to the marginalized and disadvantaged sections of society.
However, judicial activism by the higher judiciary can also have some negative implications, such as:
1 It can encroach upon the domain of the executive and the legislature and violate the principle of separation of powers. Judicial activism can also undermine the democratic legitimacy and accountability of the other organs of the state, which are elected by the people. Judicial activism can also create friction and conflict between the judiciary and the other organs of the state.
2 It can lead to judicial overreach or excess, where the judiciary goes beyond its constitutional role and interferes in matters that are not within its jurisdiction or expertise. Judicial overreach can also result in inconsistency and unpredictability in judicial decisions and create confusion and uncertainty in the legal system. Judicial overreach can also affect the efficiency and quality of judicial functioning by increasing the workload and backlog of cases.
3 It can compromise the independence and impartiality of the judiciary by exposing it to political or public pressure or influence. Judicial activism can also erode the trust and confidence of the people in the judiciary by creating a perception of bias or activism. Judicial activism can also affect the internal discipline and cohesion of the judiciary by creating dissent and division among judges.
Therefore, judicial activism by higher judiciary now a days supplements functions of executive in many aspects of governance, but it also poses some challenges and risks for constitutional democracy. Judicial activism should be exercised with caution and restraint, keeping in mind its scope and limits. Judicial activism should also be balanced with judicial accountability and transparency, ensuring that judges are answerable for their actions and decisions. Judicial activism should also be complemented with judicial reforms, improving the capacity and performance of courts at all levels. Judicial activism should ultimately serve as a catalyst for good governance, not as a substitute for it.