Impact of Judicial Activism on Government

Shivani Pandey

Abstract

After independence even though judicial system was bestowed with the title of “independent judiciary” it was not of much significance because what role it was performing on ground was way more insignificant. The inference can be drawn from the infamous emergency case in which the importance of judiciary was suppressed and the ruling party intended to emerge as a custodian for other two pillars of democratic system. But as the years rolled by, judicial system identified its role as a personal voice to unjust issues whether it relates to political interference or not and by this approach became a concept known as ‘Judicial Activism’. Basically, Judicial Activism refers to judicial pronouncements suspected of being based on personal opinions of judges rather than on existing laws of land. Though a law is made to regulate giving due considerations all possible circumstances yet each wrongful act cannot concurrent of other acts in particular class of wrongs. There are always deviations in each circumstance. Hence, the judges are expected to put their analytical ability to synthesize judgments. While doing so, they are often confronted with government as either parties of the case. In this research paper, gradual transformation in the role of judiciary on policy making which further relates to its relationship with legislature and executive are discussed at length.

This research paper explores the impact of judicial activism on government by examining various case laws and instances of Government’s respond to major reforms made by the judiciary.

Introduction

In a modern democratic system, judicial activism should be looked upon as a mechanism to curb legislative adventurism and unnecessary executive control by enforcing Constitutional limits. In other words, Judicial Activism should be looked upon as a ‘damage control’ system which guards constitutional set up. Judicial Activism has become a source of heated debate in the recent past, especially in the branch which involves government undertakings and agencies.

Over the past few decades, this term is being frequently used to criticize the enthusiastic nature of judges who tend to fill the gaps between the existing legal system and the required one, by applying their own analytical approach to interpret the laws so as to fit in the presented case.

Before moving ahead with the impact of judicial activism on government, it is quite necessary to throw light upon what is judicial activism, reasons for judicial activism, theories of its development, its Evolution and Growth in India.

Meaning of Judicial Activism

At the very outset, it should be stated that neither the Constitution of India nor any statute defines the term ‘Judicial Activism’. Its interpretations vary and are subjected to personal opinion. That is why; there is no particular definition of judicial activism accepted by all. However, there is a widely accepted notion that it pertains to the problems and processes of the political development of a country. Here, political development is used in reference to the political role played by the judiciary.

Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors to guide their decisions”. So it can be inferred as an active role played by judiciary to promote justice”.

An eminent jurist Prof. Upendra Bakshi describes judicial activism as:

“Judicial Activism is that way of exercising judicial powers which seeks fundamental re-codification of powers relations among the dominant institutions of the State, manned by members of the ruling classes.”

It goes on to add that judicial activism is to articulate and re-codify the extent of power of the institutions of governance i.e. legislature, executive and judiciary. Since the term activism is prefixed with judicial, it obviously emphasizes more on changes in the powers of judiciary. Whenever this re-codification of power occurs, there is one institution that is in a deterring position; hence the proportion of its power diminishes. Judicial Activism allows use of this excessive power. It describes judicial rulings suspected of being based on personal opinions and political considerations rather than on existing laws. The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers.

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The justification for the judicial activism comes from the near collapse of responsible government and the pressures on the judiciary to step in aid which forced the judiciary to respond and to make political and policy making judgments. In the words of Justice J.S. Verma:  “Judicial activism must necessarily mean the active process of implementation of the rule of law essential for the preservation of a functional democracy.”  In S. P. Gupta vs. Union of India[1], it was held that:

“He [the judge] has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonize the law with the prevailing concepts and values and make it an effective, instrument for delivery of justice.”

Reasons for Judicial Activism

It has already been stated that there is no universal definition accepted by all for judicial activism, therefore it becomes further more difficult to analysis the reasons for which judiciary takes a political role. Based on the various interpretations of judicial activism following are the possible causes which leads to judicial activism.

  • Near Collapse Of The Responsible Government

Collapse of the responsible government results when two political system of the Government i.e. legislature and executive fail to discharge their function. A responsible government is a mirror to show a successful democracy and constitutionalism, when it collapses many drastic and unconventional consequences are drawn. This particularly results from failure of legislature to make necessary legislature and failure of governmental agency to perform their administrative function sincerely and with integrity which further corrodes the confidence of citizens in the democracy. So the judiciary legitimately steps into the areas earmarked for legislature and executive. There have been such instances after independence where judiciary has accepted a revolutionary approach.

  • Pressure On Judiciary To Step In Aid

The judges as responsible members of the society feel that they have a role to play in ameliorating the worsening the condition of the citizens. It has become natural to the citizen to look up to the judiciary, to step in their aid and to protect their fundamental rights and freedom which leads to an activist role being played by the judiciary.

  • Voluntary Participation Of Judiciary In Social Reforms And Change

The judges cannot be expected to remain silent and idle spectators when a vast interpretation of law is required in the changing time. In fact they are expected to take part in social reform with a liberalize approach

  • The Constitutional Provisions

The constitution of India contains a good deal of provisions, which render the judiciary enough power to play an active role. Article 13 empowers judiciary to review the validity of any law which affects the fundamental rights and to declare the same as void if it contravenes them. Under article 19 the apex court makes a dichotomous decision regarding reasonability of fundamental rights. Article 32 contains right to constitutional remedies. Under article 141 the apex court has the power to declare any law and said declaration has the force of an authoritative precedent, the binding on all other courts in India.

  • Judicial System- Guardian Of Fundamental Rights
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When the fundamental rights were incorporated in the constitution the higher judiciary was designated as the guardian of fundamental rights and the custodian of the constitution. Article 13,32,226 makes  it very clear that the higher judiciary in India has been bestowed with the herculean task of protecting fundamental rights of the citizen which often result into the brooding omnipresence of judicial activism.

  • Public Confidence In The Judiciary

The greatest asset and the strongest weapon in the armory of the judiciary is the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even handed justice and keep the scales in balance in any disputes.

Theories of Development of Judicial Activism

As far as theories of its development are concerned, it is quite essential to mention them in reference to influence of judicial activism over government as these theories depend on the role which the government performs while incorporation of judicial activism.

  • Theory Of Vacuum Filling

This theory states that a power vacuum is created in the governance system when there is inaction and laziness on part of one organ. And when such a vacuum is formed it may leads to disasters in the democratic setups of the country. Generally, this vacuum is created by the inactivity, incompetency, and corruption, infringement of law, utter indiscipline and lack of character among the two organs. To safeguard the interest of public and to protect the democratic system, judiciary takes vigilant steps to fill the vacuum. It’s obvious that when the judiciary comes forward there will be a replacement in the power of either organ. Since the most of the reasons of vacuum involves the legislative system the government is influenced. Judicial activism is of two types: positive and negative. When there occurs a complete erosion of government function there is negative judicial activism. Hence it can be iterate that here the judicial activism is created by the non-activism of the legislature and the executive.

  • Theory Of Social Want

The Theory of Social Want states that judicial activism emerged due to the failure of the existing legislations to cope up with existing situations and problems in the country.  When the existing legislations failed to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. According to this theory, there is a voluntary initiative by the judiciary to safeguard public interest. Since the legislation failed to provide any pathway to the emerging problems and situations, the only way left to the judiciary was to provide unconventional interpretations to the existing legislations so as to apply them for greater good.

How Does It Affect Government?

The judicial pronouncements have a very strong influence on current and future laws, policies and practices. Court decisions have an impact on policy, law and legislative or executive action. For a very long time, the Indian judiciary had taken an orthodox approach to judicial activism. However, it would be wrong to say that there have been no incidents of judicial activism in India. Some scattered and stray incidents of judicial activism took place but they do not come to the lime light as the very concept was unknown to India. After independence the roots of judicial activism can be seen in the courts early assertion regarding the nature of judicial review which occurred in A.K.Goplan v. State of Maharashtra[2]. This was the first case which affected that the functioning of state government. In Sakal Newspapers Private Limited v. Union of India[3], the court emphasis on freedom of press and struck down the rule of government which decides the price and page schedule for the newspaper. In Balaji v. State of Mysore[4] the Supreme Court struck down the rule of government which provides protective discrimination to the backward classes on the basis of class alone. It held backwardness should not be determined by caste alone but a secular criterion should be used and percentage of reserved seats in educational institution should not exceed 50. These are few instances of judicial activism affecting government in the early 1960s.

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In 1967, L.C. Golaknath v. State of Punjab[5], the supreme court held that parliament could not amend the constitution so as to take away or abridge the fundamental rights. In the aftermath of Keshavnanda Bharti v. State of Kerala[6], the court has assumed to itself the power to determine the validity of constitutional amendment affected under article 368. The government was also blown away by the Supreme Court refusal to exercise its advisory jurisdiction under article 143 of the constitution in the matter of “Ayodhaya Controversy” Such a refusal is itself is an example of judicial activism. The courts have given to themselves to power to monitor and supervise certain investigating cases which involves the political bigwigs in certain scandals be it fodder scam, to 2g spectrum or common wealth scam. The court stretched its power too far when it directed the Union of India to enact Uniform Civil Code within a time frame.

The recent example of judicial activism which affects government is as follows:

 In Noida, the Supreme Court cancelled the acquisition of land by U.P government as it was acquired for industrial purpose but it was given to builders for making apartments. The court ordered that land should be reverting back to farmers from whom land was acquired.

In Shyam Narayan Chouksey v. Union of India[7], the Supreme Court made it mandatory to play national anthem in all the cinema halls in India before the feature film starts.

The Supreme Court ordered UPA Government to set up special investigation team to investigate black money, the task was fulfilled by NDA Government now.  All these instances reveal that in every stage judicial activism has led to welfare of the public which does not diminish the role of government in society. In fact it provides an effective support to its systematic functioning.

Conclusion

It can be inferred from the above elongated discussion that Judicial Activism has a major impact on governmental functions. Although this impact is not harmful for democratic system as it keeps alive the spirit of constitutionalism and also keeps a check on the actions of government. The separation of power among the institutions of the governance is such that there is always over lapping and one keeps a check over another. Therefore it is very important that one keeps a check on other without interrupting in the matters deal by that institution. That is only how smooth functioning of the government will be possible. Sometimes that interruption does become necessary by either of the pillars of the government but that does not amount as an infringement into the working of the other if it is focused on welfare of the public.


[1] S. P. Gupta vs. Union of India AIR 1982 SC 149.

[2] A.K.Goplan v. State of Maharashtra AIR 1950 SC 27.

[3] Sakal Newspapers Private Limited v. Union of India AIR 1962 SC 305.

[4] Balaji v. State of Mysore AIR 1963 SC 649.

[5] L.C.Golaknath v. State of Punjab AIR 1967 SC 1643.

[6] Keshavnandabharti v. State of Kerala AIR 1973 SC 1461.

[7] Shyam Narayan Chouksey v. Union of India (2017) 1 SCC 422.