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Published : December 16, 2010 | Author : sandeep13
Category : Constitutional Law | Total Views : 3097 | Unrated

Sandeep Kumar Passi (B-Pharma,MBA, LL.M) Moot court Incharge Baba Farid Law College FARIDKOT

Judicial Activism: An Angioplasty of Separation of Power

Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism. Concerns of judicial activism are closely tied to :-
1. Constitutional Interpretation,
2. Statutory Construction, and
3. Separation of Powers.

Angioplasty[2] is a procedure used by doctor to open the closed arteries supplying blood to the haert which is essential to suuport the living in the human beings, similarly according to me its essentially the Judicial Activism of the judiciary which is doing the angioplasty of the separation of powers. Generally we consider that it is essential that all the three i.e. Judiciary, Legislature and Executives must play their role in a manner that will appropriately bring into effect the provision of the Constitution.[3] But still we can say that it is the Judiciary which is the non-elected and doing the Angioplasty of Separation of Power by infusing stent into the heart of the Constitution by making it to remain alive the spirit of the Founding fathers.

Dr.B.R. Ambedkar, defended the provisions of judicial review as being necessary as it being constituted the heart of the Constitution; the very soul of it.[4]

Origination of the concept of Judicial Activism
Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a January 1947[5]. According to Keenan Kmiec[6], Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized
I.                   Justices Black, Douglas, Murphy, and Rutledge as the "Judicial Activists" and
II.                     Justices Frankfurter, Jackson, and Burton as the "Champions of Self Restraint."
III.                    Justice Reed and Chief Justice Vinson comprised a middle group.
Marbury v. Madison[7], is a landmark case in United States law. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.
Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government.
The power of judicial review was created in Marbury though the general idea has ancient roots. The idea that courts could nullify statutes originated in England with Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case[8],. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practicing without a license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case[9]."
"Judicial activism" is frequently used in political debate without a clear definition, which has created some confusion over its precise meaning.

Bradley Canon posited six dimensions along which judge courts may be perceived as activist are:
1.     Majoritarianism — This dimension takes into account the degree to which policies adopted through the democratic process are judicially overturned.
2.     Interpretive stability — This dimension takes into account the degree to which court decisions alter earlier decisions, doctrines, or constitutional interpretations.
3.     Interpretive fidelity — This dimension takes into account the degree to which constitutional provisions are interpreted contrary to the clear intentions of their drafters, or the clear implications of the language used in the provision. (See also Judicial interpretation)
4.     Substance/democratic process — This dimension takes into account the degree to which judicial decisions make substantive policy, as opposed to acting to preserve the democratic political process.
5.     Specificity of policy — This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to other agencies.
6. Availability of an alternate policymaker — This dimension takes into account the degree to which a judicial decision supersedes or inhibits serious consideration of the same problem by other government agencies.

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e. there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

Judicial Activism and its Role in India
During the last two decades, judicial activism has played a major role in protecting the rights and freedoms of individuals, as guaranteed under the constitution. After the landmark decision in the Maneka Gandhi’s case[10], courts have assumed an activist posture and come forward to the rescue of aggrieved citizens. In a number of cases, subsequent to the Maneka Gandhi’s case, the judiciary interpreted the constitutional provision in its wider possible meaning to protect basic civil liberties and fundamental rights.

During this period, our judiciary developed the concept of social action litigation and public interest litigation by discarding the traditional and self-imposed limitations on its own jurisdiction. In 1975, Justice VR Krishna Iyer for the first time in the Bar Council’s case[11] advocated the liberal interpretation of locus standi in public interest litigation. He observed that in a developing country like India, public-oriented litigation better fulfils the rule of law if it is to run close to the rule of life.

The concept of public interest litigation took a clearer shape through the remarkable judgment in what is popularly known as the case of the judges’ transfer[12]. In this case, Justice Bhagwati said that the traditional rule was of ancient vintage and arose during an era when private law dominated the scene. Justice Bhagwati observed that there is an urgent need to innovate new methods and devise new strategies for the purpose of providing access to justice to the large masses of people who are denied their human rights and to whom freedom and liberty have no meaning. The courts have a duty to utilize the initiative and zeal of public-minded persons and organizations by allowing them to move the court and act for general or group interest.

Justice Bhagwati further developed the idea of social justice through courts in another case in which he observed, “The time has now come when the courts must become the court for the poor and struggling masses of this country. They must shed their character as upholder of the established order and the status quo. They must be sensitized to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations. It is through public interest litigation that problems of poor are now coming to the forefront and the entire theatre of the law is changing. It holds out great possibilities for the future.”

The Supreme Court initiated this case by converting a letter written by the People’s Union for Democratic Rights. The letter, addressed to one of Supreme Court judges, was based upon a report made by a team of three social scientists who were commissioned by the People’s Union for Democratic Rights for the purpose of investigating and inquiring into the condition under which workmen were employed in the construction work of various projects connected with the Asian Games. In this case, the Supreme Court came down heavily against critics of public interest litigation.

It was observed that those who were decrying public interest litigations, did not seem to realize that the courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon but they exist also for the poor and the downtrodden, the have-nots and the handicapped and the half-hungry millions. It is only the moneyed that have so far had the golden key to unlock the doors of justice. But now, for the first time, the portals of the court have been being thrown open to the poor and the downtrodden, the ignorant and illiterate and their cases are coming before the courts through public interest litigations.

Public interest litigation and judicial activism has touched almost every aspect of life. Be it the case of bonded labour, rehabilitation of freed bonded labour, payment of minimum wages, protection of pavement and slum dwellers, juvenile offenders, child labour, illegal detentions, torture and maltreatment of woman in police lock-up, the implementation of various provisions of the constitution, environment problems, the courts took cognizance of each case and laid down various judgments to protect the basic human rights of each and every member of society.

Today, with the vast change in judicial process, the traditional rule of locus standi is replaced by group action litigation. No doubt law regulates the society, but some time society also regulates law. Changing aspirations of people also affects law. Constitutions, courts and other parts of the judicial system are made for common people. In the seventies, Justice Yeshwant Vishnu Chandrachud observed, “It is really the poor, starved and mindless millions who need the court protection for securing the enjoyment of human rights.”

Realising the fact that in spite of all constitutional provisions and other enactments, socio-economic justice remained a distant dream for the poor and down-trodden, Justice Bhagwati invites judges to use their power to further the cause of social justice.

In his work ‘Social Action Litigation: The Indian Express’ Justice Bhagwati observed:
“Today, we find that in third world countries, there are large number of groups which are being subjected to exploitation, injustice and even violence. In this climate of conflict and injustice, judges have to play a positive role and they cannot content themselves by invoking the doctrine of self-restraint and passive interpretation. The judges in India have fortunately a most potent judicial power in their hands, namely the power of judicial review. The judiciary has to play a vital and important role not only in preventing the remedying abuse and misuse of power but also in eliminating exploitation and injustice.”

In the last, it can be easily concluded that judicial activism has played an important role in protecting human rights. In other words, it has indeed proved to be a boon to the victims of arbitrary, illegal and unconstitutional actions of state as well as of public servants. Right to life and personal liberty has been given a broader meaning to include all the essential rights for human life with dignity and those rights are easily made available through the channels of an activist judiciary. The right to life and personal liberty was elevated to the status of fundamental rights, which could not be abridged, defeated or taken away by the state.
It is always argued that separation of power is necessary to preserve liberty and democracy; a complete and absolute separation of powers is unworkable and leads to tyranny[13]. As in the human body the heart is the essential organ for the living and working similarly the judiciary is placed at that position and always infusing and pumping the clean blood in the arteries of the Constitution and thus making dreams of the forefathers true. And whenever this heart is needed something to overcome the attack on arteries its Judicial Activism do the job of Angioplasty and repair the Constitutional Garland. Thus in nutshell we can always conclude that Judiciary being the Golden Rose of the Constitutional Garland has the right to use Judicial Activism to save the People’s aspirations.
[1] Sandeep kumar passi, Moot Court Incharge, Baba Farid Law College, FARIDKOT-151203 (Punjab)
[2] A medical procedure where stent is used to open the blocked arteries supplying blood to the heart.
[3] M.V.Pylee, Constitutional Government in India,(S.Chand Publication, Delhi 2004) at 350
[4] Constituent Assembly Debates Vol. 7
[5] Fortune Magazine Article titled- The Supreme Court 1947
[6] An Article in California Law Review in 2004
[7] 5 U.S. (1 Cranch) 137 (1803)
[8] 8 Co. Rep. 107a in 1610
[9] Principles of Natural Justice Law
[10] AIR 1978 SC 597
[11] Bar Council of Maharashtra v. S.V.Dabholkar (1976) 1 SCR 306
[12] S.P.Gupta v. President of India and others, AIR 1982 SC 149
[13] K.N.Hari Kumar, “The Constitution: who, if anybody, is supreme?”

Authors contact info - articles The  author can be reached at: passi13@legalserviceindia.com

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