Speech on Judicial Activism in India

Here is your speech on Judicial Activism in India:

It is a tradition of law that a judge either allows a case or dismisses it, depending upon the merits of the case, but, he never travels beyond the domain of the case. He exercises a limited jurisdiction, but in the recent years the Supreme Court as well as High Courts have adopted a creative approach. Judges have travelled beyond the domain of the case. They have exercised on unconventional jurisdiction. Such a creative and unconventional exercise of jurisdiction is nowadays popularly called “Judicial Activism”.

The judiciary has been assigned this active role under the Constitution. Now, the powers of Supreme Court for the protection of the constitutional rights of citizens are of the widest amplitude. Judiciary is not expected to sit in an ivory tower like an Olympian closing its eyes uncaring for the problems faced by the society.

It has to exercise its judicial power for protecting the fundamental rights and liberties of citizens of the country. Therefore, in order to achieve this mission, the judiciary has to exercise and evolve its jurisdiction with courage, creativity in circumstances as also with vision, vigilance and practical wisdom. Judicial activism and self-restraint are facets of that courageous creativity and pragmatic wisdom.

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E.g.—Supreme Court treated even a letter as a writ petition (PIL) and passed appropriate orders.

When the executive and legislature are apathetic and fail to discharge their constitutional obligations, or the bureaucracy shows a total indifference and insensitivity to its mandatory duties, it in turn affects the basic rights of the people. When the law enforcing authorities show their brutality in the process of implementation of Law, the judiciary should check the excesses and also direct the authorities to effectively implement the welfare legislation.

The Supreme Court’s role in Maneka’s case is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty and gives a new dimension to Art. 21. It held that, right to ‘Live’ is not merely confined to mere physical existence but it includes within its ambit the right to live with human dignity After this judgment, in many cases the Supreme Court interpreted Art. 21 as right to livelihood, Right to privacy, Right to shelter, Right to health and medical assistance, Right to get pollution free water and air, Right to free legal aid, Right to education, Right to speedy trial, Right against solitary confinement, Right against inhuman treatment, protection against illegal arrest and detention, custodial death and prevention of sexual harassment. All above are included in the ambit of Right to life.

In Bandhua Mukti Morcha v. Union of India, 1984 SC 802, it has been held that the provision conferring on the Supreme Court the power to enforce fundamental rights in the widest possible terms shows the anxiety of the constitution makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights.

It is not at all obligatory that an adversary procedure must be followed in proceedings under Art. 32 for the enforcement of fundamental rights. There is no such compulsion in clause (2) of Art. 32 or in any part of the Constitution.

Public interest litigations for the enforcement of fundamental rights is very much included in Art. 32.

The poor & helpless in India can seek enforcement of their fundamental rights from the Supreme Court by writing a letter to any judge of the court even without the support of an affidavit. It is the most important achievement of growing judicial activism.

In an another landmark judgment in the case of M.C. Mehta v. Union of India (AIR 1987 SC 1087) S.C. widened the scope of ‘PIL’ as social interest litigation.

S.C. has now realised its proper role in a welfare state and using its new strategy is not only helping the poor by enforcing their fundamental rights of a person but also for the transformation of the whole society as an orderly and crime free society.

The S.C.’s role as a check over the lethargy of legislature or its misuse of discretionary power, or inefficiency of the executive is commendable. Those who oppose the growing judicial activism of the higher courts, do not realise that it has proved a boon for the common man.

Judicial activism has set right a number of wrongs committed by the state and in this way the Supreme Court and High Courts have added a new dimension is to through Public Interest Litigation, by treating them as writ petitions and initiating suo motn action against the erring authority.

The judges of the Supreme Court, notably Justice P.N. Bhagwati and Justice V.R. Krishna Iyer championed the cause of judicial activism to promote social justice by liberalizing the locus standi rule. It is indeed a revolutionary step in the history of judicial administration in India.

But nowadays this Yeoman service of higher judiciary is criticised for its over activism and such judicial over activism is fraught with many dangers.

Many reasons are responsible for it. Firstly, the court has assumed the role of a state within the Union of India by creating new norms, exercising supervision over the implementation or appointment of commissions or committees while deciding the cases even to the extent of supervising investigations.

Secondly, while deciding ‘PIL’ case the Court may keep in mind the constitutional mandate of socio-economic transformation, but should not usurp the legislative role.

It needs to be emphasised that the Constitution has entrusted the responsibility of good governance to the Executive.

Therefore, judiciary should not take upon itself the role of executive and legislature in the guise of judicial activism.

Thirdly, the over liberalization of the rule of locus standi has produced groups of individual who tend to assume the roles of both the petitioner as well as the judge.

Fourthly, the well established doctrine of precedent is becoming out of fashion, because of above statements. It is said that judicial activism has brought uncertainty in law.

But to deal with this problem and in order to ensure that only genuine and public interest writs are placed before the court, a ‘PIL’ cell has been established in the Supreme Court and all the letter-petitions are now processed and thoroughly scrutinized by the Registry of Court. They have also devised the method of imposing exemplory costs, fine to curb the bogus PIL.

Undoubtedly it is true that expanding scope of judicial activism is useful to society in general and to the neglected and oppressed poor classes in particular.

It is really true that judicial activism has helped to contain administrative lapses; it is a check over discretionary power of officers as well as legislators to a considerable extent but in absence of an effective enforcing machinery one really wonders what fruitful purpose is it going to serve.

Mere judicial pronouncement is never sufficient to heal the wounds of the victims of social injustices and there is need to penalise the erring officials and authorities. Only there is little hope of concrete results and unless and until the decisions of the Courts are properly implemented then there is no use of dynamic judicial activism.