This blog is written by Prayas Das, a First-Year Law Student of National Law University, Odisha

Introduction

In this world of more than 98 countries with an equal number of governments, governing their respective countries. Nowadays, more than half of these countries are known as democratic countries, which consist of an independent judiciary. The phrase “Judicial Activism” conveys that the judge presiding over a particular case will consider his personal bias partially or fully before coming to a concluding decision. A lot of time judicial activism was criticized for acting like a judicial overreach, which means breaching the parliament or legislature’s domain of power. This approach by the courts of different countries helped different classes of people to maintain their basic fundamental human rights from the might of the executive hold. This doctrine of judicial activism first got its sign in 1610 by Justice Edward Coke of the United Kingdom. From that time onwards, we saw an increase in the interpretation of the law and a challenge to the legislative and executive might of curtailing its citizen's rights. In India, we saw the advent of judicial activism from the time Justice Mehmood in 1893, passed a remark against the requirement of translation fees from the undertrials for obtaining a bail from the court.

The Concept of Judicial Activism

Justice Edward Coke of the United Kingdom in the year 1910, brought forth the principles of judicial review into practice, in the case of Thomas Bonham Vs College of Physicians case, in which he decided that any law passed by the Parliament is subjected to judicial review, to check if that concerned law passed by the legislature breached the common law or not. Thus, upon violation of the common law or reason, the court can declare void or unconstitutional that particular enactment.

The phrase “Judicial Activism” was first used by Arthur Schlesinger Jr. in the article “ The Supreme Court: 1947” in which he called the Supreme Court judges of the USA “Judicial Activists”. The independence of the judiciary is paramount in most of the democracies, especially in the major democracies of the world. Judicial activism is seen as a success, through which the judiciary granted a lot of accessible rights to the normal populace, in India we remember the former Chief Justice of India P.N Bhagwati, and former Justice V.R Krishna Iyer for their contribution towards the setting up of “Public Interest Litigation”. Thus, the landmark decision to introduce PIL for the normal public is still today seen as a remarkable form of judicial activism, in which the judiciary came out of its prism of delivering justice on the already enacted law and introducing the concept for the larger public good and upholding the fundamental rights, guaranteed to them in Part III of the constitution of India. According to the black law dictionary, we can refer to judicial activism as a “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

The ways through which judicial activism is followed in India

In India, the judiciary follows the path of judicial activism in various ways, either given the required powers in the constitution of India or by introducing judicial activism through judicial activism which is the concept of PIL pioneered by former CJI P.N Bhagwati and former Justice V.R Krishna Iyer. The following different methods of judicial activism, are as follows:-

a) Judicial review – The judiciary has the power to interpret the Indian Constitution and to declare any law of the legislature or order the executive can be checked upon and if contrary to the constitutional provision, it will be declared void or unconstitutional. We can find an example of this from the landmark, Kesavananda Bharti Vs. State of Kerela, the Supreme Court of India gave a judgment with a wafer-thin majority of 7:6, in which it said that the parliament has a vast power to amend any provision of the constitution and that such amendment should not change the basic structure of the constitution, whereas the other dissenting judges were wary of giving unrestrained power in the hand of the executive or legislature. This case, to date, is referred to as the basic structure doctrine case which restrained the executive from transcending any provision that can affect any basic principle granted to the people by the Constitution, we can also call it “ Constitutionalism,” which refers to a limited power government, bound with a check and balance provided by the constitution.

b) Public Interest Litigation- This particular application can be accepted by the court only if there is an interest present of the public at large and the aggrieved party cannot or does not file a case

c) Article 142 of the Indian Constitution – This particular article gives the Supreme Court of India full liberty to provide the aggrieved with full justice in the absence of any statute or law enacted by the parliament. This article acts as a witness to the judicial activism concept, where the judges on the bench can decide any matter according to their conscience to grant the aggrieved party full justice as required by the constitution.

Judicial Activism during the covid period

During the 1st wave of COVID-19, the Prime Minister of India declared a nationwide lockdown without much planning executively and medically due to which a lot of migrant labourers, started returning to their homeland barefooted due to the frozen transport systems. Subsequently, the Supreme Court passed various instant orders to alleviate the problems faced by the migrant labourers and the Delhi High Court directed the government to create a system and mechanism for registering all the migrant workers keeping all the state government under its confidence, so that their concerns can be properly addressed.

During the second wave of the covid, the government continuously failed to provide sufficient oxygen cylinders which caused a lot of casualties on the contrary, the government was busy organizing rallies for different state elections, subsequently, multiple High Courts passed judgments, directing the government to improve the availability of oxygen cylinders and provide with sufficient medical infrastructure to address this situation and took a collective step towards holding the Union and State governments accountable regarding their disturbing handling and response of the situations.

CONCLUSION

The constitution of India gave the judiciary the power to review the enactments, thus signalling the check and balance power of the judiciary. It is a lot more vital power, which advocates for judicial independence and protection of fundamental rights provided by the constitution. It sometimes leads to criticism from intellectuals and various governments, about transcending its area and limitation of powers, this concept is known as ” judicial overreach.” Thus, the judiciary should also restrain itself and examine each case with utmost necessity to determine the case needs of judicial activism.

References

· Tanya Vig, 'How Judicial Activism Played a Role in Breaking Through the Political Complacency During the Two Phases of Lockdown' (21 August 2021) The Law Blog https://thelawblog.in/2021/08/11/how-judicial-activism-played-a-role-in-breaking-through-the-political-complacency-during-the-two-phases-of-lockdown/comment-page-1/ accessed on 24th September 2024.

· Sneha Marwar, 'Judicial Activism' (5 August 2022) iPleaders Blog https://blog.ipleaders.in/judicial-activism/ accessed on 23rd September 2024.

· Judicial Activism' BYJU'S https://byjus.com/free-ias-prep/judicial-activism/ accessed on 25th September.

· Kermit Roosevelt, 'Judicial Activism' (n.d.) Encyclopaedia Britannica https://www.britannica.com/topic/judicial-activism accessed on 25th September 2024.

· Elianna Spitzer, 'Judicial Activism: Definition and Examples' (22 June 2020) ThoughtCo https://www.thoughtco.com/judicial-activism-definition-examples-4172436 accessed on 24th September 2024.