The judiciary is a system of courts which take decisions by interpreting the law. In judiciary is a independent body, which has separate powers, especially to interpret the constitution and other statutes to take any decision in the court of law. The judiciary is one of the organ of the government along with executive and legislature, and only if all of them function properly it lead to the development of the nation. When the judiciary goes beyond the provisions of the constitution and other statutes to take a decision, and thinks about the political, moral, ethical and social aspects of taking the decision, then it is said that the court law has taken decision through “Judicial Activism”. This has been defined by Black’s Law Dictionary as the “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”Ironically judicial activism is no where to be defined in the Indian Constitution or other statutes. Only the supreme courts and high courts can use the process of judicial activism to take a decision. There has been an evolution in respect to this concept from the times of independence. From those times efforts have been taken to implement judicial activism, however it is being effectively followed only from the past few years. P.N Bhagwati was the first one to use judicial activism to introduce the concept of PIL (Public Interest Litigation).
In the starting stages, where the legislature was just building up, it did not give importance to judicial activism, rather it stuck to its old traditional ways. Only after a decade or two after India got independence in 1947, the concept of judicial activism just started to evolve. The course of judicial activism in the nation did take some wild turns, and its origin and evolution will de discussed further in the article. The concept of judicial activism started gaining power firstly in the Keshwananda Bharti case, where it was declared that the basic structure of the constitution shall not be prone to nay change, this decision was taken place when our hon’ble prime minister Indira Gandhi imposed an emergency in the nation, even though the judiciary was under pressure, it took the right decision by keeping judicial activism in mind. Later in the In A.K. Gopalan v. State of Madras, the Supreme Court of India has rejected the claim that a person cannot be deprived of art 21 only by due process of law, but that procedure established should be reasonable and fair. It stated that this was a mistake of the makers of the constitution as it has been omitted by them during its making. This has taken another turn when the word “life” under article 21 does not simply mean mere existence, but means that every human being shall carry on life with dignity and respect in the society. Then in 1967, in the Golaknath & Ors vs State Of Punjab, the supreme court has given the judgement that the fundamental rights under part III of the constitution shall not be amended, even if it could be done as stated under article 368 with a two third majority in both the houses of parliament. The PIL case which was mentioned earlier has also judicial activism possible in India, as it avoids unnecessary litigation, and gives anyone the chance to file a case. There are several cases which were landmark judgments to the concept of judicial activism, like Hussainara Khatoon (I) v. State of Bihar, Sunil Batra v. Delhi Administration,etc.
However, there have been some criticism that the concept of judicial activism is facing. Firstly, due to this concept the judge often displays personal opinions in the judgment given, which may or may not be considered good in the eyes of the society. Secondly, when the judiciary is using this concept to take decision in vital cases, it is displaying the power which wasn’t given to it, hence we can say that the separation of powers is not being followed. It is said that the judiciary which does not consist the elected members, is lowering the power of the executive and judiciary. There has also been a confusion between judicial review and judicial activism, where judicial review means the actions of the legislature and executive could be reviewed by the judiciary if they are complying to the provisions of the Constitution and other statutes. There is a very slight difference between both of them, and both have been considered useful in th terms of law.
In Spite of the criticism judicial activism has been proven to be very useful, especially in todays world. The application of law should differ as per the changes in the society, as the trend, belief, thoughts and values change in the society the laws have to change for the well being of its citizens. The times has come where the judges should take bold decisions, and they have to use their power to provide equal and fair justice to all. Some recent cases where judicial activism has done a great service to the society are, declaring Right to privacy as a fundamental right in the Justice K.S.Puttuswamy v. Union of India and others case, criminalising triple talaq in the Shayara Bano v. Union of India case , legalising passive euthanasia in Common Cause v. Union of India case, declaring Right to marriage as a fundamental Right in Shakti Vahini v. Union of India case, and many more such cases.
Therefore, we can come to a conclusion that there are positives and negatives to judicial activism, it has been beneficial in bringing change through certain judgements, and it has been bad as it has affected the authority of elected representatives, government officials, ministries, and the police. If there is legislation on judicial activism, many problems related to power and authority maybe avoided, but this to may have some concern. However it did play a significant role in getting justice to different classes of the society.
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