HISTORY & EVOLUTION OF JUDICIAL ACTIVISM

Author: Vaishnavi G Nair, a student at the National University of Advanced Legal Studies, Kochi

INTRODUCTION

Judicial activism is a judicial philosophy that upholds the exercise of judicial review to transform and mould the existing laws in the light of the current needs of the society. It allows the judiciary to restrain laws contradictory to the provisions of the Constitution. This form of judicial intervention is vital for the promotion of justice. It is a multifaceted idea that differs across philosophies and constitutions.

THE HISTORY OF JUDICIAL ACTIVISM

The term ‘judicial activism’ was introduced to the public in a Fortune Magazine article by Arthur M.Schlesinger Jr in 1947. The article was a profile of the 9 Supreme Court Judges at the time. Schlesinger divided the judges into three groups – “Judicial Activists”, “Champions of self-restraint” and then a middle group. Schlesinger’s usage of the term was criticised by Craig Green in his article “An Intellectual History Of Judicial Activism” . The term was first used in a judicial opinion by Joseph C. Hutcheson in the case of Theriot v. Mercer

Judicial review was established in Thomas Bonham v. College of Physicians case in 1610 by Justice Edward Coke. In this case, he made the decision that any law passed by the Parliament against the common law can be declared void by the courts.

The case of Brown v. Board of Education marked the beginning of the era of judicial activism in the United States of America. The landmark judgement ruled against racial segregation in public schools on the grounds that racial segregation violated the Fourteenth Amendment to the Constitution.

The first-ever case involving the use of judicial review can be traced back to 1803. In the case of Madbury v. Madison, the US Supreme Court declared certain provisions of the Judiciary Act of 1801 as unconstitutional. It was the very first time in American history that the court had declared a legislation unconstitutional.

JUDICIAL ACTIVISM IN INDIA

The first instance of judicial activism in the Indian context can be dated back to the pre-Independence era. In 1893, Allahabad High Court Judge Syed Mahmood issued a dissenting decision, criticising the rule that dismissed appeals on the sole basis that the appellant could not afford the translation and printing of the record in English. The case involved the said circumstances as the undertrial could not afford legal representation. The dissenting decision, which involved activism meant to protect the rights of the affected undertrials, did not sit right with the English judges and Justice Mahmood was forced to resign.

The resignation of three judges due to a series of events that preceded the same laid the foundation of judicial activism in India. The period in which Indira Gandhi served as the Prime Minister of India witnessed major tussles between the judiciary and the executive. In the R.C. Cooper v. Union of India case, also known as the bank nationalisation case, challenged the constitutional validity of the nationalisation of banks by the central government. The eleven-judge bench struck down Section 15(2)(e) of the Banking Companies Act of 1969 with a ten-to-one majority. The one dissenting judge, M.N. Ray was later appointed as the Chief Justice, even though he was fourth in line of seniority. This is what led to the resignation of the three senior judges – Justice Grover, Hegde and Shelat.

Indira Gandhi v. Raj Narain is another landmark judgement of the time. In this case, the election of Indira Gandhi was challenged by Raj Narain on the grounds of fraud. Justice Jugmohan Lal Sinha of the Allahabad High Court held the election void. The judgement also barred Indira Gandhi from contesting in the elections for the next 16 years. Subsequently, Ms Gandhi moved the Supreme Court for an “Absolute Stay” on the High Court order, which was refused by Justice Iyer. Moreover, Indira Gandhi’s right to vote was withdrawn, and she was just given permission to address the Houses and draw her salary. The next day of the judgement saw the imposition of Emergency under Article 352 of the Indian Constitution. The period of Emergency is considered to be the first wave of judicial activism in India.

THE MULTIPLE FACETS OF JUDICIAL ACTIVISM

Judicial activism is a multifaceted idea. In India, it has been established in the form of the following judicial principles:

Public Interest Litigation

Also known as social interest litigation, PIL allows socially concerned individuals to approach the court on behalf of those whose rights have been infringed. The first two judges to admit PILs in court were Justice V.R. Krishna Iyer and B.N. Bhagwati. Hussainara Khatoon v. State of Bihar was the first-ever case of public interest litigation in India. The case was filed by Pushpa Kapila Hingorani, who is regarded as the ‘mother of public interest litigation in India’. The PIL was filed in the Supreme Court for the release of 17 under-trial prisoners from the Bihar jail. The detention of these prisoners was held illegal. The state governments were instructed to appoint a lawyer at their own cost, provided that the offence was bailable

Other important cases of PIL in India include :

Sunil Batra v. Delhi Administration – This landmark judgement dealt with the protection of fundamental rights of prisoners. In this case, the habeas corpus proceeding was derived from the letter the petitioner had sent to a Supreme Court Judge regarding the poor living conditions at the Tihar Central Jail

The MC Mehta v. Union of India – The PIL was filed by M.C. Mehta, a public interest attorney known as the Green Avenger of India, in response to the gas leak from Shriram Food and Fertilisers Ltd. It laid down the absolute liability principle.

Vishaka v. State of Rajasthan – The PIL was filed by different women’s organisations led by Naina Kapoor’s organisation, Sakshi. The Supreme Court set forth the famous Vishaka guidelines for preventing workplace sexual harassment, and the employers were made accountable for the said prevention.

Murli Deora v. Union of India – The judgement had a significant impact on the right to life of passive smokers. The court directed the Central and State governments, as well as the Union territories, to issue orders to ban smoking in public places.

Judicial Review

It is the power of the courts to interpret the Constitution and ensure that all the laws passed by the legislature are in line with the provisions of the Constitution. The courts can declare a law void if it is found to be violating one or more provisions of the Constitution. In Kesavananda Bharati v. State of Kerala, it was held that the legislature has the power to amend the Constitution, but it cannot alter the basic structure of the Constitution.

Judicial review’s scope is very broad as it extends to almost all executive actions, from the power of the President to issue a proclamation in case of failure of constitutional machinery in states to the granting of pardon or exercising the right to go to countries outside of India, as seen in the cases of S.R. Bommai v. Union of India, Kehar Singh v. Union of India & Satwant Singh v. Assistant Passport Officer, respectively.

Independence of Judiciary

The independence of the judiciary has been ensured through a series of judgements of the Supreme Court. For instance, the 99th Constitutional Amendment, which established the National Judicial Appointments Commission for the transfer and appointment of the judges of the Supreme Court and High Courts, was struck down by the Supreme Court to ensure the minimal interference of the executive in the working of the judiciary.

Curative Petition

Curative petitions exist as a form of last resort for the dismissed review petitions. It allows the petitioner to seek a second review for the court’s final order. This kind of petition was first recognised by a five-judge bench in the case of Rupa Ashok Hurra v. Ashok Hurra.

Post Decisional Hearing

It refers to the hearing which is held after a decision has been reached. It was developed by the Supreme Court in the Maneka Gandhi v. Union of India case to ensure proper adherence to the principle of natural justice during adjudication.

Prospective Overruling Doctrine

It was first adopted by the American Judiciary. According to the doctrine, a particular case will not have a retrospective effect on the decisions that were made before the said decision and will only have a prospective effect. This idea was evolved by the Supreme Court in 1971 while deciding the case of Gokulnath v. State of Punjab, which challenged the 17th Amendment’s constitutional validity.

THE RELEVANCE OF JUDICIAL ACTIVISM IN THE CURRENT POLITICAL LANDSCAPE OF INDIA

Judicial activism is vital for the proper functioning of a democracy like India. It is essential for safeguarding people’s rights. Even though it has been criticised on the grounds that judicial activism blurs the line that separates the three organs of the government – the legislature, the executive and the judiciary, it is of utmost importance as it prevents the existence of arbitrary laws and keeps a check on the government. In such a way, the judiciary ensures better governance. From a positive perspective, this reinforces the system of horizontal sharing of power by enabling the organs of the government to coexist and function efficiently by ensuring that they keep a check on one another. Judicial activism also protects the political system from the tyranny of the executive. It also fills the gaps in legislation. The Vishaka Guidelines discussed earlier are a prime example.

In this day and age, when governments fail to protect the rights of the citizens, the judiciary steps up to their rescue. Through such intervention, the judiciary not only plays a role in the protection of people’s rights but also in shaping public policy. It reinstates the faith of the people in the judiciary and encourages them to approach the court in case of any dispute or extreme circumstances, such as the violation of fundamental rights. Thus, judicial activism is instrumental in the promotion of justice in society.

The subject matter of the early cases of judicial activism is an open testimony to its significance in a democracy like India. The Supreme Court broadened the scope of Article 19(1)(a) in the Sakal Newspapers Pvt. Ltd v. Union of India. It also ruled that newspapers cannot be subject to the same regulations as that of other newspapers. The case of Balaji v. State of Mysore dealt with economic backwardness and the policy of reservation.

The exercise of judicial activism also resulted in broadening the scope of Article 21 or the right to life and personal liberty. A variety of rights have now been incorporated within the right to life. These rights include rights to travel abroad, privacy, an environment free of pollution, free legal aid and a speedy trial, and rights against solitary confinement, illegal arrest and custodial death.

CONCLUSION

Various Judgements of the apex court have resulted in the broadening of the scope of judicial activism in India. It has proven to be of immense significance for the restoration of the people’s faith in the judicial system of the country. Not only does it keep a check on the government, but it also encourages the people to keep a check on the government by ensuring their right to move the Supreme Court or the High Courts in case of violation of their fundamental rights. It helps in creating socially concerned individuals for the general welfare of the people.

The independence of the judiciary is to be preserved at all costs. The executive’s approach to the judiciary should be one of minimal interference. Judicial activism ensures the same. This concept is thus important for the preservation of the very idea of democracy upon which our nation was built.

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