general concept
funky
(Querist) 12 August 2009
This query is : Resolved
what do you mean by Judicial Activism?
A V Vishal
(Expert) 12 August 2009
Judicial activism is a popular phrase to describe the tendency of the courts to supervise administrative matters of the government. In a strictly legal sense, the courts are expected to merely settle disputes between parties (an adversary system of law). In the 1980's and 90's, the Supreme Court and many High Courts entertained many petitions which sought to improve the quality of life of the general public (popularly called public interest litigation). In such cases, the courts directed the government to improve the quality of roads, the condition of our environment etc. This is generally called judicial activism.
piyush sharma
(Expert) 12 August 2009
It simply means attempt by a court to reach those corners which are not under its ambit.
Manish Singh
(Expert) 12 August 2009
I dont agree with Mr. Piyush as the judiciary can not reach or even touch those areas which are not conferred on it by any statue or by the Constitution.
Judicial activism was initiated by the Apex Court n a form of PIL in around 1980s (it involves only the Higher Judiciary)just to mandate the application and implemention of the Constitution as envisaged by our constitution makers. the Constitution mandates the judiciary to keep a watch over unconstitutional things as it is the saviour of our constitution.
the judiciary tried to maintain harmony between the three pillars of the Constitution as per and according to the Constitution and the same is in vogue till date in the form of PIL or otherwise.
neither Courts can go out of ambit of law nor it can take the place of executive and function accordingly (the same propsition has been pronounced by the Apex court in several judgments). but yes definitely if consitutional mechanism fails, the court have a constitutional mandate/authority to intervene.
mostly, it is a weapon in the hands of higher judiciary to keep check on the other two functionaries of the Constitution.
charudureja
(Expert) 12 August 2009
Judicial Activism is quite a wider issue and as far as opinion expressed by Ld. Members are concerned i think they are right in their opinions.
no doubt its a tool which has been created by the judiciary to uphold the constitutional mandate and to maintain order in the society.
Manish Singh
(Expert) 12 August 2009
Dear Members,
I am putting forth some excerpts from an article wriiten by AP HC Judge J. MN Rao which throws much light over the issue. it may be useful for us in this context. Judicial Activism was started through the famous case of "Ratlam Municipality".
"There is no justification on the part of anyone to assert that in the guise of judicial activism, the constitutional courts in the country are undermining the theory of separation of powers by encroaching upon the fields reserved for the legislature and the executive. In the wake of this criticism, one must notice the observations made by the Supreme Court in Asif Hameed v. State of J&K:
"Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution-makers have meticulously defined the functions of various organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. ... Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social economic justice." (emphasis added)
The line of demarcation between the three organs of the State as laid down in the aforesaid ruling of the Apex Court finds clearer expression in its subsequent rulings in Supreme Court Employees' Welfare Assn. v. Union of India and Mallikarjuna Rao v. State of A.P.
It is true that in adjudicating public law matters, the court takes into account the social and economic realities while considering the width and amplitude of the constitutional rights. Touching upon this aspect, the Supreme Court in a recent decision, speaking through K. Ramaswamy, J., in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee made very pertinent observations:
"In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and reality. Therefore, the judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law." (emphasis added)
The permanent values embodied in the Constitution need interpretation in the context of the changing social and economic conditions which are transitory in nature. The constitutional court undertakes the delicate task of reconciling the permanent with the transitory. It is the duty of the executive to implement faithfully the laws made by the legislature. When the executive fails to discharge its obligations, it becomes the primordial duty of the judiciary to compel the executive to perform its lawful functions. In the recent times, much of the criticism aired against the judiciary concerns this area. When crimes are committed by men in power and attempts are made to conceal them by rendering the official machinery ineffective, recourse to judiciary becomes inevitable. It becomes the duty of the judiciary to take cognizance of the executive's lapses and issue appropriate directions as to the method and manner in which the executive should act as ordained by the Constitution and the laws. If the judiciary fails to respond, it would be guilty of violating the Constitution, a treason indeed.
Neither the political executive which is responsible for laying down the policy nor the permanent executive comprising civil servants who are enjoined to carry out the policies of the executive can act in any manner contrary to what the Constitution prescribes. When all the three organs of the State -
