Judicial activism

useful for competitive examination and general studies/knowledge.

1. Judicial Activism by Judiciary in India. Paper – III, gs-iI /IV Constitution and Law By Mohd Abdul Muheeb.

2. Agenda for Today? Constitutional provisions regarding the judiciary in India. A comparison… Understanding the Judicial activism with the help of case laws and verdicts. Advantages-Disadvantages-necessity. Understanding the Judicial restraint and why it is important. Judicial accountability. Judicial pronouncements which can be considered as Judicial activism.

3. Subjective questions Can Judicial activism plays a key role in keeping a check on the powers of the Parliament and Executive? Critically examine. How can the courts in India practice Judicial restraint in order to prevent judicial activism. Suggest some of the measures how to tackle Judicial Activism in constructive manner.

4. Basic MCQs Public Interest Litigation in India is linked with Judicial Review - Judicial Activism Judicial intervention - Judicial Sanctity. Judicial Process in India is based on Due Process of Law - Convention Procedure established by law - Constitution.

5. Constitutional provisions regarding Judiciary in India. Article 13 : Power of Judicial review. Article 124-127 : Talks about the provisions regarding Union Judiciary as per India Constitution. The term ‘Judicial Activism’ is no where mentioned in the constitution. Hence it is an extra-constitutional term.

6. Judiciary The Indian Judiciary is the common man’s last hope for justice and also the last line of defence against arbitrary action of either government or private person. It is led by Supreme Court of India, followed by the High Courts and sub-ordinate courts.

7. Role of Judiciary in India Upholding the Law and Enforcing Fundamental Rights. Judicial Review. Dispute Resolution.

8. Judicial Independence It is to insulate the judiciary from any external pressure from other organs of the government. It is to make judiciary free from political biases, political and moral beliefs, and partisan ideologies. Judges are bound to maintain primary fidelity to the law and the constitution. Law and adjudication must remain autonomous from partisan politics. Financial independence is a crucial part of Judicial independence.

9. A Comparison American Judiciary Indian Judiciary It is a separated Judicial System The power and jurisdiction of the Supreme Court is limited to that prescribed in the Constitution Defends rights of citizens according to ‘due process of law’. Scope of Judicial review is very wide It is an Integrated Judicial system. The Parliament may increase the powers and jurisdiction of the SC. Defends rights of citizens according to ‘procedure established by law’. Scope of Judicial review is very limited.

10. A Comparison…… American Judiciary Indian Judiciary Has no advisory jurisdiction Has no plenary powers to grant special leave to appeal. Confined to Constitutional cases only. Jurisdiction extends to naval, maritime activities, etc. Has advisory Jurisdiction. Has wide discretion to grant special leave to appeal. Covers Constitutional, Civil and Criminal matters. Confined to federal matters only.

11. Judicial Activism Judicial activism refers to the use of judicial power to articulate and enforce what is beneficial for the society in general and people at large. It leads to Judicial legislation and give themselves the right to strike down any legislation or rule against the precedents if it goes against the Constitution. Example such as striking down of National Judicial Accountability Act, Golaknath case, Kesavananda Bharati case. Reasons for Public support : If administration has become apathetic and non-performing. If there is no remedy, except to move courts through PIL, enlarging the field of Judicial intervention.

12. Why Judicial Activism is needed? When the legislature fails to make the necessary legislation. When the government agencies fails miserably to perform their administrative functions. When people lose faith in the elected officials and looks upon judiciary for relief.

13. Why Judicial Activism is not good? It is fabricated solely by the judiciary. It is not backed by the Constitution and it is through suo-motu action, not mentioned in the constitution. It results in the collapse of principle of separation of power when it tries to fill up the vacuum created by other organs of the government. Extensive use of judicial powers in the administrative field may well, in the long run, blunt the judicial powers themselves. The Court should be to compel the authorities to act to pass appropriate executive orders rather than substitute judicial orders for administrative ones. It results in the inefficient use of limited judicial resources and also the dead-lock between executive and judiciary.

14. Pros and Cons of Judicial activism Pros cons It sets out a system of balances and controls the other branches of the government. It allows judges to use their personal judgment. It prevents misuse of power and helps to keep trust placed in the justice system. It limits the functioning of the government. It violates the limit of power set to be exercised by the constitution when it overrides any existing law. It can harm the public at large as the judgment can be influenced by personal or selfish motives. Repeated interventions can diminish the faith of people in govt.

15. Solution to Judicial Activism Judicial Restraint. It lets judges look at the original intent of the writers of the constitution. It promotes the changing the laws by means of constitutional amendments and not by judicial pronouncements and guidelines.

16. Judicial Accountability In India, judges are accountable only to themselves. Accountability to oneself, which is a very weak form of constraint. A strong, ethical, legal culture needs to be practiced, which plays a critical role in establishing judicial accountability. The Legal culture must be created and nurtured by judges, lawyers, legal academicians, the media and the citizenry.

17. When did Judicial activism start in India? Judicial activism started in India in 1980s where there was rapid expansion of Judicial power. It allowed ‘Public Interest litigation’ by relaxing the principle of ‘locus standi’. By the 1990s and 2000s, the courts began to engage in a host of administrative activities. The constitutional court began to perform as ‘Administrative’ Court.

18. Initial examples of Judicial activism The mandatory playing of National Anthem in Cinema theatres, before screening of movies. Ban on non-green fireworks in National Capital Region by Supreme Court in ‘Arjun Gopal Vs Union of India case’. Ban on sale of BS-IV vehicle after March, 2020 and roll out of BS-VI vehicles. Amending of the Scheduled Caste and Tribes (prevention of Atrocities) Act, 1989 by Supreme Court in Subhash Kashinath vs State of Maharastra case.

19. Judicial activism …… Supreme Court in Rajesh Sharma vs State of Uttar Pradesh case, felt that 498A of IPC being misused and issued guidelines to curb it. Observations made by the Judges, in controversial cases such as NRC, etc. Declaring some rivers as ‘Living beings’ and should be accorded with ‘Fundamental rights’. Hence, these were some of the cases which gives enough evidence that from time to time, the Judiciary has tried to enter the Legislative and Executive domain.

20. Some latest Judicial Pronouncements

21. Supreme Court of India Pandemic is spreading like a wild fire. Take strict action against those violating guidelines :whoever he may be”; make treatments affordable : Supreme Court. 18-12-2020 Financial disability of parents/guardians should not hinder education of children restored from Child care Institutions; Supreme Court issues directions.

22. Supreme Court pronouncements Financial losses cannot be offset on the weary shoulders of the laboring worker”; Supreme Court quashes Gujarat Notification permitting factories to extend work hours and cut overtime. Dated : 01.10.2020

23. Bombay High Court Instead of People chasing vaccine, you should chase people: Bombay High Court seeks NEGVAC Policy on Door-to-Door vaccination. Covid Vaccination – Ensure that Elderly Citizens are not made to stand in queues, Give online registrants preference over walk-ins. “Medical Education Policy has to be Re-looked, High time for Policy makers and Government to apply their mind.” 20-05-2021

24. Bombay High Court If there is single death due to lack of oxygen, officers responsible will be personally liable : Bombay High Court Aurangabad Bench. Rashtriya Shramik Aghadi v. The State of Maharashtra and others Principle of “No-work, No-wage” not applicable in present extraordinary situations. Bombay High Court – 12.05.2020

25. Karnataka High Court ‘Don’t give false hope to people that they’ll get Vaccine’. Karnataka HC Directs State to inform steps taken to procure second doses. Come up with rational policy to prioritize second dose of Covid-19 vaccine.

26. Himachal Pradesh High Court War against the Covid is not to be fought by the Government alone; Private hospitals should not shrink from their duties and responsibilities. Dt. 06.05.2021

27. Delhi High Court Delhi High Court issues Contempt notice to Center for non-supply of Oxygen to NCT of Delhi. Dt. 04-05-2021 Wastage of a single dose of vaccine is a criminal waste. 20-04-2021 Vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of mask therein would be compulsory. 07-04-2021

28. Delhi High Court Anil K Aggarwal and Anr V. UoI and Ors. Hyper-legalistic interpretation of the various clauses in the Guidelines issued by the Central Govt. over the Covid-19 crisis, would be fundamentally misconceived. Dated : 01.05.2020 Amit Bhargava V. The State (NCT OF Delhi) Quarantine Period cannot be strictly restricted to 14 days. Delhi High Court – Dt. 11.0532020

29. Tripura High Court Court takes suo motu action, asks State to provide detailed data to tackle with second wave of Covid 19. Dt. 10-05-2021

30. Allahabad High Court EC, govt. failed to foresee ‘disastrous’ impact of polls, says Allahabad HC. UP govt. ill-prepared to deal with spread of infections in rural areas, says Allahabad HC. Allahabad High Court seeks UP govt. response on charges of Covid mismanagement.

31. Allahabad High Court ‘Criminal act, no less than genocide’ : Allahabad HC on deaths due to non-supply of oxygen. Provide compensation to polling officials died due to covid . Allahabad HC appoints nodal officers in every district of UP to keep an eye on Covid situation. Allahabad HC orders lockdown in 5 Uttar Pradesh cities.

32. Uttarakhand High Court Japinder Singh V. Union of India Private Unaided Schools cannot collect tuition fees if the student is not attending online classes. 12.05.2020

33. Andhra Pradesh High Court K. Ramakrishna s/o K Rangaiah v. The Union of India and others. It is the duty of the State to ensure that safe travel and accommodation facilities are made available to the migrant workers. 15.05.2020

34. Constructive suggestions to tackle Judicial Activism The people of India, representatives shall engage in healthy debate addressing the Judicial activism in our country. The Courts should be vary of their Constitutional responsibility and refrain from performing as Administrative courts. The courts needs to strike equilibrium in exercise of their judicial powers without judicial over-reach. The courts shall remember that they act as final forum for those wronged by administrative excesses and executive arbitrariness.

35. Thank you!!!!!!!!!!