Judicial Activism

When the judiciary acts like a legislature than it is called “Judicial Activism". It has opened the gate for Public Interest Litigation. PIL was meant to provide redress to downtrodden and marginalised people.

However, its scope kept on increasing and recently PILs were filed seeking ban on films (Bajrangi Bhaijaan and Mohalla Assi) or to search missing persons like Rahul Gandhi which had no relevance to the life of a common man. On the other hand, some important PIL like caste survey before deciding reservation quota were found unworthy.

 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."

The Judicial activism is usually appreciated by the media and intellectual elite for dynamism and creativity. The Judiciary has earned applaud for rebuking and compelling top brass executives to perform their duties. The Bureaucracy has a tarnished image. It has become callous and redundant. The entire system gives an impression of Mafioso working on the direction of some invisible Don, who are political head or their close relatives. Some scholars like Prof. Upendra Baxi think that it may lead to terrorism, extremism and discontentment in other organs of democratic setup.

In the words of Justice J.S Verma under whom I had an opportunity to work, Judicial Activism must necessarily mean “ the active process of implementation of the rule of law, essential for the preservation of a functional democracy”. The Judiciary comes out from traditional image and acts as trustee of social justice. However the transgression is seen as tyranny by the few. Soli J Sorabji said Judicial Activism has contributed to the protection of fundamental human rights.

Social Scientist wonder that what would be the limit of Judicial Activism. After administration and the legislature who could be their next target? Is there any organ of the constitution, which has potential to come out of shell of traditional role model and be more dynamic. 

N. Sheshan was first Chief Election Commissioner to become popular by exercising his powers to curb corruption in the election process. He did not cross the boundaries of his function, he simply established them by operating the established system.

T.N. Chaturvediwho remained Comptroller and Auditor General of India, in his report exposed the corrupt practices in Bofor’s Deal. After that C & AG has exposed 2G, 3G and Coal Gate scandals. Everything has been done within the framework of prescribed duties. Once I met Mr. T. N. Chaturvedi in circuit house, Jodhpur he talked about ‘integrity’. It was a wonderful experience to hear the views of an eminent scholar. He had mustered  activism in Audit as Sheshan did in Election process.

Bollywood movie “Holiday- A Soldier is Never Off Duty” is remake of Tamil Movie Thuppakki. Akshay Kumar a military officer  who is on holiday witnesses a bomb explosion and killing of innocent people. He decides to forgo his holiday and on his own eliminates criminals in an action packed drama. The Movie raises a question. Is it justified for military official to combat internal enemies of society. After all, they too are custodians of sovereignty of the country. Activism in forces could be dangerous for any democratic country.

Chief Justice R. M. Lodha, Supreme Court of India has expressed concern over piling of cases in courts across the country. As on today more than 63000 cases are pending in the Supreme Court. In High Court and Subordinate courts the number is alarming. He suggested that vacations system must be scrapped and courts should remain open all year.

Justice V. Ramaswami who is the first judge against whom impeachment proceedings were initiated talks about accountability in Judicial System when he came to visit JNV University, Jodhpur.

Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the The Daily Mail and still, who abhor it”

Justice Guman Mal Lodha in his book Judiciary: Law, Morality Politics says that judges should have a poetic sensibility and artistic creativity. They are the combination of the Historian, Philosopher and a Prophet.

Supreme Court opened at midnight for the first time to reject last minute plea filed by Yakub Menon.

The court held that it would be “travesty of justice” to stay the death warrant.

Read more at https://vipinbeharigoyal.blogspot.in

? Vipin Behari Goyal

Advocate, Rajasthan High Court, Jodhpur, India 

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