Our current judiciary system has its roots in the colonial era. The East India Company established courts and applied English law throughout the country, with European judges presiding over them.
After India gained independence in 1947, the Constitution of India was adopted in 1950, laying the foundation for a democratic judicial system. The Supreme Court of India was established as the highest judicial authority, empowered with the power of judicial review to oversee the legislative and executive actions of the country.
Over the years, the judiciary evolved into the protector of fundamental rights, safeguarding the liberties guaranteed by the Constitution. A landmark moment came in Kesavananda Bharati v. State of Kerala (1973), where the Supreme Court established the Basic Structure Doctrine. This doctrine limited the amending power of Parliament and ensured that the core principles of the Constitution remained intact.
Since then, the judiciary has played a crucial role in interpreting the Constitution and shaping India’s legal and political landscape.
Through this article we aim to understand:
- What is Separation of power?
- The concept of Judicial Activism and its Criticism.
What is separation of powers:
The separation of power says that the state power is divided into three different branches: legislative, executive, and judiciary. The separation of power is for the balanced and proper efficiency of the state power.
This separation is essential to ensure that one branch doesn’t interfere with the functioning of the other branch.
Each branch has its own unique function essential to maintain the democracy of the country and if this principle of separation is not followed properly there are high chances of misuse and corruption leading to injustice.
It ensures a system of checks and balances.
What are checks and balances?
The principle of checks and balances ensures and checks that no particular branch exceeds its power and limits its power hence creating a balance between each branch preventing the branch from becoming too powerful. This protects people from government abuse.
Checks and balances go beyond separating powers—they also provide each branch with constitutional tools to protect their authority from being overtaken by the others. For example, the United States Constitution of 1787 adopted this principle.
In Federalist No. 78, Alexander Hamilton, drawing from Montesquieu, emphasized that the judiciary should be an independent branch, equal to the legislative and executive branches. Before this, in British-influenced colonies, judges were seen as part of the executive branch. Hamilton’s idea marked a significant shift in how governments viewed the judiciary.
SEPARATION OF POWER AND ITS CONSTITUTIONAL STATUS :
Constitutional Provisions:
- Article 50: Directs the state to separate the judiciary from the executive in public services.
- Article 122 & 212: Prohibit judicial interference in parliamentary proceedings.
- Articles 245-255: Define the legislative powers of the Union and the States.
- Articles 124-147: Deal with the judiciary’s structure and independence.
Let’s talk about what Article 50 has to say about separation of powers:
Article 50 is a Directive Principle of State Policy, which means it is not enforceable by any court. However, it emphasizes the separation of the judiciary from the executive.
In the case of Divisional Manager, Aravali Golf Club v. Chander Hass (2007), the court concluded that while the judiciary has the power to enforce laws, it cannot create or execute new laws. This is because, under the Indian Constitution, the principle of separation of powers is fundamental. It mandates that each branch of government—the legislature, executive, and judiciary—must function within its designated scope and cannot overstep its powers.
The first major case related to the Doctrine of Separation of Powers in India was Ram Jawaya Kapur v. State of Punjab. The court concluded in this case that the separation of powers is not followed in India in its strict sense. This means that while each branch—the legislative, executive, and judiciary—has its own distinct functions, there is some overlap in their powers and responsibilities.
Later in I.C. Golak Nath v. State of Punjab, Subha Rao, C.J said
“The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function with the spheres allotted to them.”
A strict separation of powers is not followed under the Indian Constitution, unlike the American Constitution. However, the judiciary has the authority to strike down laws that violate the Basic Structure Doctrine, as established in the landmark case of Kesavananda Bharati v. State of Kerala (1973).
Montesquieu’s separation of powers system:
Montesquieu, a French philosopher, introduced the idea of separation of powers in his book The Spirit of Laws (1748). He proposed dividing government power into three branches:
- Legislative: Makes laws.
- Executive: Implements laws and handles foreign affairs.
- Judiciary: Resolves disputes and ensures justice.
Montesquieu argued that combining these powers in one person or body would lead to tyranny. For liberty to exist, each branch must function independently and not interfere with the others. Judicial independence, he emphasized, must be genuine and free from influence.
This idea inspired modern democratic systems, like the U.S. Constitution, ensuring checks and balances between branches.
WHAT IS JUDICIAL ACTIVISM ABOUT?
The Black’s Law Dictionary says that judicial activism is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
Judicial Activism happens when there is a duty of the courts to review the state action.
Article 13 read with Article 32 and Article 226 of the Indian Constitution give the power to the court to strike down any state action that violates the basic structure doctrine of the Indian Constitution.
Article 32 of the Indian constitution allows the citizens of india to directly approach the Supreme Court if any of their fundamental rights are violated and to enforce the fundamental rights by issuing orders and writs.
In Fertilizer Corporation Kamgar Union v. Union of India, the Supreme Court stated that,
Article 32 is part of the basic structure of the Constitution because fundamental rights are meaningless without an effective remedy for their enforcement. Article 32 cannot be suspended, even during emergencies.
Article 226 empowers High Courts to issue orders or writs to enforce fundamental rights and other legal rights. In this way, the jurisdiction of High Courts under Article 226 is wider than the Supreme Court’s under Article 32.
ORIGIN OF JUDICIAL ACTIVISM :
- The concept originated in The USA, the term was first coined by 1947 by Arthur Schlesinger Jr., an American historian and educator.
- In India, the foundation of Judicial Activism in India was laid down by Justice V.R Krishna Iyer, Justice P. N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.
THE CONCEPT:
Judicial activism is when judges take an active role in interpreting laws, striking down those that violate the Constitution’s basic structure, or stepping in where legislative or executive actions fall short. It’s essentially the judiciary going beyond its usual limits, sometimes stepping into the shoes of the executive or legislature, to ensure justice is served. This approach often becomes a lifeline for disadvantaged or marginalized groups, especially when the other branches of government fail to protect their rights. When people face injustice, often against powerful individuals or entities, the judiciary steps up as their last hope—striking down unfair laws or setting new legal principles to ensure justice and fairness.
Judicial activism acts as a system of checks and balances, ensuring that the other branches of the state do not overstep their boundaries and are held accountable for their actions. It encourages the judiciary to innovate in law, providing solutions to problems that the executive or legislative branches may have failed to address. While some argue that judges use personal judgment rather than strictly adhering to the law, this should be done within reasonable limits. Judicial activism empowers the judiciary to intervene when the government or state misuses its power, ensuring justice for individuals and preventing harm caused by state actions. Additionally, when the state is slow to act on matters of public interest, judicial activism helps address these issues, ensuring timely justice is delivered.
The concept of PIL( Public Interest Litigation) is always talked about when talking about Judicial activism.
PIL is a form of judicial activism that allows individuals to approach the court to seek justice on matters affecting the public at large, rather than personal grievances. It is designed to protect the fundamental rights of people, especially the disadvantaged sections of society. It serves as a means for the judiciary to intervene in issues concerning public welfare, human rights, and other societal matters that may be overlooked by the government.
Vishakha v. The state of Rajasthan a landmark judgment by the supreme court of india.The Vishaka case significantly contributed to judicial activism in India, particularly in the area of women’s rights. Since there was no clear law on sexual harassment at the time, the Supreme Court took suo motu cognizance of the case and addressed the issue of sexual harassment in the workplace, which was not explicitly covered under Indian law. Under the leadership of Justice J.S. Verma, the Court formulated a set of guidelines to prevent sexual harassment, drawing from international conventions and the provisions of the Indian Constitution, especially the right to gender equality under Article 14 and the right to life and liberty under Article 21. These guidelines, known as the Vishaka Guidelines, laid the foundation for future laws related to sexual harassment in India.
Criticism of Judicial Activism:
Judicial activism is often criticized for overstepping the boundaries of the judiciary and interfering in matters that should be left to the legislature and executive.
- Judicial activism has long been criticized on several grounds, especially in relation to the principle of separation of powers, where the judiciary is seen to overstep its boundaries and make decisions traditionally reserved for the executive and legislative branches. Critics argue that elected representatives, not unelected judges, should have the authority to create laws that impact the public, leading to what is termed judicial overreach.
- Secondly, judicial activism is considered a violation of the separation of powers, as it disrupts the clear distinction between the branches of the state, hindering the proper functioning of democracy.
- Critics also contend that judges sometimes base their decisions on personal beliefs, overreaching their powers instead of strictly adhering to the law.
- Finally, since judges are appointed rather than elected, they take on functions meant for the legislature, leading to a lack of democratic accountability.
CONCLUSION:
Concluding, while judicial activism has played an important role in providing justice and shaping public policies where the legislative and executive authorities have failed, it remains a controversial approach. It challenges the theory of separation of powers, raising concerns about the judiciary overstepping its boundaries. Since the functioning of separation of powers is essential for the proper functioning of democracy, any form of judicial intervention should be practiced with caution. Hence, the judiciary must be mindful of its role. Ultimately, judicial activism should be used as a tool for upholding justice without undermining democratic accountability.
FAQ.
Q.1.How does judicial activism affect democratic accountability?
Since judges are appointed and not elected, critics argue that judicial activism diminishes democratic accountability. When courts make decisions typically reserved for elected representatives, it may undermine the democratic process by bypassing the will of the people, as expressed through their elected officials.
Q.2.How can judicial activism be practiced responsibly?
Judicial activism can be practiced responsibly by ensuring that judicial interventions are based on clear legal principles, are necessary for protecting fundamental rights, and do not undermine the functioning of the legislative or executive branches.
ARCHITA SHARMA
GOVERNMENT LAW COLLEGE,MUMBAI.
