PERILS OF JUDICIAL ACTIVISM IN INDIA
Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for ‘activism’ as such on the Court.
In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration.
Areas of Judicial Activism
During the past decade, many instances of judicial activism have gained prominence. The areas in which judiciary has become active are health, child labour, political corruption, environment, education, etc.
WHAT IS PIL
The idea begins when Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights. In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati correctly stated the purpose of PIL as it originated.
PIL is also an unexceptional judicial activism. But over the years judicial activism is more about to correct the government and administration policies. Somewhere it could not enforce the rights of disadvantages group in our society.
Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves.
In all such cases SC appeals its authority under article 32 but in reality in not a single case fundamental rights are involved. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most controversial interpretation, it took the power of nominating name of chief justice from president’s hand. In no other constitution of world it is happened. Sometimes it is seemed that it has become monitor of investigating agencies. It’s recent order in reference to CBI and scams like 2G, CHARA GHOTALA etc.
WHY IT’S NEGATIVE ASPECTS ONLY
Definitely all is not negative about judicial activism. In democracy like India it has become a tool for resist before legislature lapse.
Even in Pakistan we see a quite positive enthusiasm over judicial activism in diminishing the power of military.
Article 50 of our constitution defines the separation of judiciary and legislature. But over the decades it seems that judiciary has overruled the legislature which is not good for any constitution. As this may paralyzes our representative institution. It is sign of our politics failure.
In such situation society has to face dire consequences of a view of two or three judges. The recent decision of a bench in case of article 377 is pessimistic.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.”
NEED A BALANCE APPROACH
We need to make this authority restricted to some parameters. PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
By Neha Shrivastava (IFS).