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JUDICIAL ACTIVISM & RESTRAINT

04 Jan 2024 JUDICIAL ACTIVISM & RESTRAINT

Posted at 11:06h in Daily current-affairs by
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UPSC MAINS SYLLABUS GS2 PAPER: Structure, Organization and Functioning of the Executive and the Judiciary

WHY IN THE NEWS? 

  1. The Supreme Court of India has recently guided the Judges of the Higher courts to follow the principle of Separation of powers between the judiciary and the executive laid in the Constitution under the Directive Principle of State policy (Article 50) should be maintained.
  2. The Chief Justice of India directed the judges to exercise restraint and summon the Government officials only in the complex issues which require expert evidence or in non adversarial adjudication, including those concerning policy issues.

WHAT IS JUDICIAL ACTIVISM?

The Constitution envisages a proactive role of Judiciary in protection of rights of citizen & promotion of justice in society. In the words of political analyst WL Wadhera, Judicial activism represents the departure of the Judiciary from strict adherence to Judicial precedent in favour of progressive & new social policies as showcased below: 

  1. The idea of Judicial activism flows from the Constitution itself. For example; Article 32 of the Constitution which provides for the Judicial review of Legislative acts and Executive actions.
  2. It laid to the establishment of mechanism of Public Interest Litigation (PIL) which has made justice accessible for marginalised groups
  3. It performs the essential functioning of Social engineering. For example, Navtej Johar judgement of 2018 decriminalised homosexuality thus expanding the scope of “Right to Equality” under Article 14. 
  4. It helps in upholding the Fundamental rights of the citizen. For example, KS Puttaswamy Judgement of 2017 upheld the Right to Privacy as integral part of Right to Dignified life under Article 21. 
  5. It helps in checking the arbitrary powers of the Executive. For example, the Writs of Mandamus & Habeas Corpus under Article 32.
  6. It becomes a necessary evil in cases of a Hung assembly or court of law being misused by Authoritarian govt for ulterior motives. For example, Role of Supreme court in upholding democratic principles during proclamation  of Emergency by Indira Gandhi government during 1975-77. 
  7. It also fills the legislative vacuum created by ineffective governance. For example, Supreme court issuing the Vishakha guidelines to counter the issue of Sexual Harassment at Workplace.

As the current CJI of India, DY Chandrachud held; “In Humanitarian crisis, Court can not stand as silent spectator”. 

ISSUES ARISING OUT OF JUDICIAL ACTIVISM: 

With repeated interventions by the Judiciary in the field of Executive & Legislature has led to growing criticism by various Political analysts that Judiciary is increasingly becoming “Super legislative” that undermines the basic tenets of Parliamentary Democracy: 

  1. Judiciary has taken the role of a legislative body to frame or amend laws. For example, the Supreme court struck down NJAC Act 2015 in favour of own devised Collegium system under Judges Cases (1992-98). 
  2. Similarly it has encroached upon the Executive domain as well. For example, establishing the Environment Pollution Control Authority (EPCA) to regulate pollution in NCR-Delhi region. 
  3. Additionally, the Court’s interference in micromanagement of Day-to-Day governance such as regulating policy matters during Pandemic control was also criticised. 
  4. It has also devised various mechanisms which does not have Constitutional backing. For example, Basic structure doctrine established under the Keshavanand Bharati case 1973. 
  5. Judicial activism also leads to Policy paralysis or subpar framing of laws by the Parliament.
  6. It undermines the role of Parliament to exact accountability of Executive. For example, members approaching the Courts instead of using tools like Adjournment motions to keep lawmakers in check. 
  7. It also undermines the mandate of People as the Solicitor General of India argued in the judicial debate related to the issue of Same Sex marriage that; “5 wise men can not make law for such diverse country”.
  8. Further, Judicial activism has led to staggering growth of arrears. For example, there are more than 70,000 pending cases in Supreme court as of 2023. 

As Judicial activism violates the principle of Separation of Power under Article 50, the Supreme court in 2007 verdict observed that ;”Courts should not take over the functions of Executive of Legislature & must follow…

“JUDICIAL RESTRAINT”: 

  1. It ensures that Judicial activism shall not transform into “Judicial Adventurism”.
  2. It recognises the equality of all three organs of Parliamentary system i.e; Legislative, Executive & Judiciary.
  3. It aims to minimise the Inter-branch interference
  4. The court following “Judicial restraint”, perform continuous evaluation through Public awareness & Civic engagement
  5. It also ensures that people exercise their Electoral franchise as laws to govern them are made and regulated by their “elected representative”. 

WAY FORWARD: 

As emphasised in “Spirit of Laws” by Montesquieu, the Separation of Power is essential for holding the principles of the democracy and thus Judiciary shall ensure that all three “engines” of the Governance in India functions in harmony to ensure all-round Socio-economic development.  

Download Yojna daily current affairs eng med 4th Jan 2024

 

UPSC MAINS 2024 PRACTISE QUESTION: 

Q: Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of higher judiciary in India. (10 M, 150 words) (2017 question) 

 

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