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Published : April 21, 2010 | Author : shinsyshahul
Category : Law - lawyers & legal Profession | Total Views : 12724 | Rating :

  
shinsyshahul
final year LLM student,kerala GOVT.LAW COLLEGE ,THRISSUR
 

                                               Blacks law dictionary defines judicial activism as a judicial philosophy which motives judge to depart from strict adherence to precedents in favour of progressive and new policies which are not always consistent with the restraint expected by appellate judges. If we regard judical philosophy  as a coin,one side of it is activism and other side is  restraint.In order to respond to the hopes and aspirations of the litigants,judiciary has to exercise a jurisdiction with a courageous  creativity.To have  that courage, use of practical wisdom in adjudicatory process helps a lot.

                             Judicial activism can be regarded as an unconventional role played by judiciary by delievering valuable judgements and granting reliefs to the aggrieved according to the moral and social justice where statutory law is silent or even contrary.Active interpretation of an existing provision  with a view to enhance the utility of a legislation for social betterment, can be regarded as a judicial activism. In brief, it can be also assumed that judicial activism  comes in to play when there is a legislative shortsightedness or executive arbitrariness or both .

                                                                             In the field of human right jurisprudence,environmental aspects,anti death sentence cases judicial activism contributed a lot.  Scope of Art.21  expanded due to active judicial interpretation. In Maneka Gandhi v. Union of India[1] ;Rudal shah v.State of Bihar[2] ;Hussainara khatoon v. State of Bihar[3]  etc… it can be seen.  But it is also to be noted that judicial activism should not become an adventuralism. Choice between activism and restraint should be on the basis of a clear and clean policy.Judicial self restraint is a theory of judicial interpretation that encourages the judge to limit their exercise of power.And the major restraint in judicial creativity originates from the awarness of the need to maintain a balance among the three branches of government.

                                                                                 

Question of judicial activism v .judicial restraint was well discussed in the case State of U.P and anothers v.Jeet .s .bhisht[4]. In it  Justice markandeya katju observed,by exercising  Judicial restraint judiciary will enhance its own respect and prestige.If a law clearly violates a provision of the constitution, it can be struck down,but otherwise,it is not for the judiciary to sit in appeal over the wisdom of the legislature,nor it can amend the law.The court may feel that law may be amended or the forum created by the Act need to be made more effective,but on this ground it cannot itself amend the law or take over the functions of the legislature or the executive.But Justice Sinha  opposed it relying on the fact that judge made law is recognized through out the world. If one is to put the doctrine of  separation of power in to absolute rigidity,it would not have any superior court in this country,whether developed or developing,to create new rights through interpretative process. Admitting all the matters mentioned above, without disputing the idea behind judicial restraint, it is submitted here that too much restraint imposed by judiciary upon itself on the basis of strict separation of powers cannot be a path to identify  justice in the eyes of poor.

 

                                               Just as too much of interference by judiciary impairs smooth governance, the stand of restraint also affects the system adversely[5].As too much judicial activism would produce  an adverse impact on the position of the Judiciary  itself ,too much restraint would have a self annihilating effect.  If the courts are not able to check abuse of legislative and executive power by the very raison d’tre  of judicial  institution would be defeated.  Such a failure on the part of the judiciary would destroy the confidence of the people not only in judicial institutions, but also in democratic process . A wise  judicial policy has to be a judicious  blend  of Activism and Restraint, the exact properties of each varying with the exigencies  of the situation is to be welcomed[6].court will not  transgress into the fields of policy decisions..

                                                                  Role of Higher judiciary under the constitution casts on it a  great obligation as the sentinel to defend  the values of the constitution and the rights of the Indians.  court must   act within their judicially permissible limitations to uphold the rule of law and harness their power in public  interest[7]. Prof  S.P. Sathe observes

 

“ True sometimes the court have gone beyond the scope of their  powers.  they have entertained matters they ought not to have entertained, and they have been guilty of populism as well as adventurism in violation of the doctrine of separation of powers.  Such excesses ought to be prevented or minimized through judicial self restraint.  But in the present Indian Scenario, excessive restraint and doctrinaire regard for separation of powers could also be disastrous.  Ultimately what  a court  should entertain and what should not must be governed by proper exercise of judicial  discretion[8]”.

Judicial philosophy  which is to be adapted by the entire judicial community is  reflected in the famous quotation of Ravindra Nath Tagore ;

In to the mouths of these 

Dumb,  Pale and meek

We have to infuse the language of the soul.  Sorts of

In to the hearts of these

Weary and worn, dry and forlorn 

        We have to minstrel the language of humanity. 

In order to preserve and protect the essence of our constitution,a creative judiciary is a must,and that  sorts of judicial  intervention should be with clear vision and intelligence.


[1] AIR 1978 SC 597

[2] AIR 1983 SC 1086

[3] AIR 1979 SC 1377

[4] 2007 6 SCC 586

[5] See N.K. Jayakumar,  Judicial process Limitations and Leeways (1997) p.7 

[6] Ibid at p. 8 .Between too much restraint and total lack of restraint lies the golden mean.

 

[7] See  Narmada Bachao Andolan v Union of India (2000) 10 SCC 664 p. 762

[8]See S.P. Sathe, Judicial Activism in  India: Transgressing Boarders and enforcing limits ( 2nd ed ; 2002)

 

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




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Article Comments

Posted by sweta maji on June 28, 2011
Please write some articles on Judicial Creativity,Tools and Techniques of Judicial Creativity and Precedent etc...

Posted by shobhna on October 02, 2010
hmmm
article is quite informative,,but too short to clear the concept as well.

Posted by Guruprasad M.N. on August 07, 2010
Good Article on Judiciary....Please write some articles on Judicial Creativity,Tools and Techniques of Judicial Creativity and Precedent etc...

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