judicial activism in India, Assignments of Legal Argumentation Theory

Download judicial activism in India and more Assignments Legal Argumentation Theory in PDF only on Docsity! ARTICLE ON: JUDICIAL ACTIVISM IN INDIA 1. INTRODUCTION: Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and High Courts under Article 226 of the Constitution particularly in Public Interest Litigation. The formulation of the new rules by the then courts to settle the conflicting positions that had arisen in certain cases was denoted as 'Judicial Activism'. To define broadly, it is the assumption of an active role on the part of the Judiciary. In the words of Justice J.S Verma, Judicial Activism must necessarily mean “the active process of implementation of the rule of law, essential for the preservation of a functional democracy”.1 Judicial activism generally has two consequences. It, at times, works in our favor to save from the wrong decision to take place but at times it also backfires on us. There are some very important cases that are available when we talk about Judicial Activism in India. Bhopal gas tragedy and the Jessica Lal Murder case are among the top two 2. ORIGIN OF JUDICIAL ACTIVISM: The term “Judicial Activism” was first introduced by Arthur Meier Schlesinger Jr. in January 1947 in an article titled “The Supreme Court: 1947”. The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad." 2 As far as the origin and evolution of judicial activism go, there are two theories behind the whole concept. They are: (1) Theory of Vacuum Filling and (2) Theory of Social Want. 1.Theory of Vacuum Filling: As per the Indian democratic republican scenario, the whole power is categorised into three wings or organs, these are, - (i) Legislature, (ii) Executive, (iii) Judiciary. These three wings have their own powers and 1 Judicial activism and its development, Article 1000, (25 May, 2020, 04:00PM), https://article1000.com/judicial-activism development/ 2 Keenan D. Kmiec, The Origin and Current Meanings of 'Judicial Activism, 92. CAL. L. REV 1441, 1447(2004) Page | 1 separated works so as to regulate beautifully the democracy. But when or at the certain point of time, between these two wings, Legislature and Executive, one of them is become passive or inactive to deploy or to continue its part, then the rest wing, Judiciary has no another choice except come into scenario. Here the inactiveness or imbecility should be imposed or fulfilled only by the two wings, i.e., Legislature and Executive, but not Judiciary. Because, for a democratic state (especially for India), an independent judiciary is considered as the heart and soul by which the democratic or republican situation shall be maintained. Hence, if the judiciary becomes inactive, the whole process of democracy and republic should be broken. So, it is very much sensitive organ as the remaining of a state which “is left with no other alternative but to expand its horizons and fill up the vacuum created by the Legislature and the Executive”3 2.Theory of Social Want: We see in the before column that when at the certain point of time, any organ of these two organs, Legislature and Executive, is become inactive or passive due to incompetence, disregard of law, negligence, corruption, utter indiscipline, then the rest organ, Judiciary comes into scenario with the choice of amplification its determined horizons by the Constitution to solve the disputes. But now the question is that: “why the Judiciary does so?” The simple answer is that only for the social want Dr. Vandana, in her book, “Dimensions of Judicial Activism in India” says, - “the judicial activism emerged due to the failure of the existing legislations to cope up with the existing situations and problems in the country. When the existing legislations fail to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. Hence the only way left is to provide non- conventional interpretations to the existing legislations for the greater good. Hence emerged judicial activism.” 3. JUDICIAL ACTIVISM IN INDIAN SCENARIO: Today Indian Constitution itself provides scope or space in order to ordain the philosophy of judicial activism by virtue of Articles 13, 32, 141, 142 and 226 mainly. Article 134 of the Constitution of India conferred wide power of judicial review to the Apex court. Under this power it can examine the constitutionality of executive or legislative act. The high courts also enjoy the same power in this regard. Article 325 of the Constitution of India makes the Supreme Court as the protector and guarantor of the fundamental rights. 3 Merriam-Webster’s Dictionary of Law, (Springfield, Massachusetts: Merriam-Webster, 1999) 4 INDIA CONST. art. 13. 5 INDIA CONST. art. 32. Page | 2