Source of Law: Judges

Kalpana

Abstract

We are in the era of judicial activism where every day an innovative interpretation of laws, statutes is being done by courts for delivering justice to the needy. The Supreme Court of India and other courts are going behind their jurisdiction in public interest and interfering with independent autonomous authorities. Judicial activism is not backed by the constitution nor does this term find any place in it. The power given to courts to review all the state actions paves way to judicial activism. It is a product which is devised solely by the judiciaries. Judicial activism is a pro-active approach of judges in deciding matters of socio-economic interests of public at large. It is taken as a step to ensure justice and build public faith in constitutional bodies. Every judge is an activist himself either as a progressive or reverse gear one. The true essence of judicial activism is in furnishing decisions which are in tune with temper and tempo of times. This paper covers the emergence of judicial activism in Indian scenario post emergency period. This paper includes evolvement of judicial activism through cases which were torch bearers in the way of it. It also describes the role of PILs (Public Interest Litigation) and SuoMoto cases which were milestones in the development of judicial activism. This paper contains causes for the growth of judicial activism in India. This paper briefly describes the impacts of judicial activism on other branches of state; executive and legislative. This paper also presents the possible outcomes and solutions for the positive amplification of this concept.

Introduction

Justice is the cheese of law and Supreme Court acts as the sprinkler to add flavour to it. Same is the case with judicial activism; it is a new flavor of sprinkle by the Supreme Court. It is the unpredictable and newly invented savor of Indian judiciary where it left the generally taken path for wanting outcome.

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Judicial activism is the liberal interpretation of laws or the constitution by the judges according to their rationale It is not molding of laws but in fact it is uncovering the latent meaning of law. It can be described as intervention of personal views, feelings and values of judges in deciding cases, instead of solely abiding by the law in action. It can be called personal interpretation of laws. It denotes a more active role taken by the judiciary to dispense social justice. It is a philosophy of judicial decision making whereby judges allow their personal views about public policies, among other issues, to make decisions with the suggestion that adherents of this philosophy, tends to find constitutional violation and are willing to ignore precedent.

Research Methodology

Doctrinal method of research has been used for this article. Data was gathered through books, articles, newspapers, blogs and online sources.

Objective

 This research was conducted to know the emergence of judicial activism and understand the reason behind the dominance of judicial activism in the matters recently decided by the Supreme Court.

Description of the Research Issues Including Socio-Legal Analysis of the Problem

 Judicial activism is a recent trend in Indian judiciary. Judiciary is expanding its horizons and by doing so it is entering into the periphery of executive and legislature. This statement leads us to the question as to what are the boundaries of judiciary. We can find answer of this question in the leading case of Indira Gandhi v. Raj Narain. It was held in this case that the main work of judiciary is to make sure that the legislature and the executive stay within the limits defined by constitution   interpret the constitution and apply the law as interpreted to situations which might rise. The court is for all the practical purposes disregarding the separation of powers under the constitution and has assumed a general supervisory function over other branches of government. In Shyam Narayan Chouksey v. Union of India case the Supreme Court made it mandatory to play national anthem in all cinema halls before featuring any movie and other guidelines regarding the national anthem being played was also passed. It was an unnecessary imposition of patriotism. However, this order was later amended to putting it on cinema hall owner’s discretion to play national anthem or not. Supreme Court ruling a PIL banned liquor sale within 500 meters of any national or state highway. Another example is cancellation of telecom licenses in 2G case. Economic decisions are the sole domain of executive and legislature and Supreme Court has overreached it by doing so. Supreme Court had set up a Lodha committee on BCCI despite it not being a central or state government body. It is definitely not suits as court work to run a sports body or prescribing how to run it.

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Precedent and Judicial decisions

PILs are an important part of judicial activism. The concept of PILs on the basis of judicial activism was for the first time explained in SP Gupta v. Union of India case. It was held that where a legal wrong or injury happens to a person and he is helpless in reaching the court for relief, then any person can file an application for appropriate action under article 32 and article 226 of Indian constitution.

Keshvanand Bharti v. State of Keralacase is also an example of judicial activism. The term basic structure of constitution is nowhere mentioned in constitution, but this case affirmed that the power to amend does not extend to destroying or abrogating the basic structure of the constitution.

Impacts and Implications

Judiciary is suffering from the poor implementation of laws and it is struggling in making it accessible to poor and oppressed. But while struggling for it, it has outstepped the parameters of the judicial function and has undertaken functions that really belong to the other organs of government; legislature and executive. This way, judicial activism has a negative impact on the doctrine of separation of powers. This is a dangerous situation and its solution lies only in judicial self- restraint.

In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But judges should exercise unfettered discretion in the interpretation of laws and interpretation of justice too. They should remain uninfluenced in the discharge of their duties. The maintenance of the independence and impartiality of the judiciary both in the letter and in spirit is the basic condition of the rule of law, that for the liberty of people, and human progress.

Possible Outcomes and Solutions

If there is a vacuum that denies citizens their fundamental rights then in that case judicial activism can be a remedy. Judicial activism is a necessity but it should have limitations too. Judicial activism in public interest is where laws which fall short are welcome but judiciary must also set a boundary line for itself. Judicial activism is way of having checks on other organs of system but it should put some check on itself too.

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