Wednesday, 12 September 2012

Judicial activism

  • Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government.
  • In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and administration.
Some situations that lead to judicial activism are:

          ·    When the legislature and executive fails to discharge its responsibilities.
          ·    In case where the government is very weak and instable.
          ·    When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration.
          ·    When the party in power misuses its power for ulterior motives as was done during the Emergency period.
          ·    Finally, the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers.

Areas of Judicial Activism

 Judiciary through judicial activism has played significant role in:

          ·    Protection of ecology and environment pollution. 
          ·    Protection against inhuman treatment in jail.
          ·    Protection against Sexual harassment of working women.
          ·    Ban on smoking in public places.
          ·    Recent Examples: common wealth scam, 2G scam, Noida land acquisition case and 2002 Gujarat riot case.

Instruments of Judicial Activism

         1.  Public interest litigation (PIL) - means a suit filed in a court of law for the protection of public interest such as pollution, terrorism, road safety etc. It is not defined in any statute or act.
         2.  Judicial review - Article 13 conferred wide power of judicial review to the Apex court. In the exercise of the judicial review it can examine the constitutionality of executive or legislative act.
         3.  Constitutional Remedies - Article 32 makes the Supreme Court as the protector and guarantor of the fundamental rights. 

Criticism of Judicial Activism

1.  The judiciary is interfering in the field of executive and legislative. Due to which separation of power is at stake.
2.  Executive and legislative have popular mandate as they are elected while judiciary is an appointed body. So it should not interfere in policy matters.

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