What is Judicial Activism
Judicial activism is a method of exercising judicial review or a description of a specific judicial decision in which a judge is generally more inclined to rule on constitutional issues and invalidate legislative or executive actions. Although debates over the proper role of the judiciary date to the founding of the American republic, the phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune. The phrase may have several interpretations, and even when speakers agree on the intended meaning, they may disagree on whether it accurately characterizes a particular judgment. Despite being used often to express court decisions or philosophical ideas, the term’s usage can lead to misunderstanding.
Definition of judicial Activism
The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”
“judicial activism” is a loaded term, fraught with multiple meanings and politicized connotations. As a result, activism, like beauty, is often in the eye of the beholder. Nevertheless, concerns over judicial activism have existed since the founding of the United States. For the most part, those who decry activist decisions focus on the judiciary’s usurpation of political power from the elected branches, especially when judges render those decisions in accordance with their own policy preferences. As Alexander Hamilton expressed it in The Federalist 78 ,
“[t]he Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure for that of the legislative body”.
Especially in the latter part of the twentieth century, criticisms of judicial activism have become woven into the warp and woof of American politics.
Origin and Evaluation
The origin of the term “judicial activism” may be traced to Arthur Schlesinger. The Supreme Court justices were characterized by him as either “activists” including Justices Black, Douglas, Murphy, and Rutledge or “champions of judicial restraint” including Justices Frankfurter, Jackson, and Burton, in a 1947 publication for Fortune magazine. While restraintist judges tended to concentrate on “expanding the range of allowable judgment for legislatures,” activist judges were more inclined to utilize judicial authority “for their own conception of the social good,” as he put it.
Judicial activism has become synonymous with judicial decision-making that unduly obstructs the policy-making prerogatives of the elected branches, in accordance with this perspective.
While Schlesinger is often credited with coining the word, the theoretical foundations of judicial activism have a far longer history. Apprehensions over activist judging emerged throughout the process of drafting the Constitution. Hamilton’s reaction in Federalist 78 provided a remedy for those who were worried about the extent of judicial authority. However, despite Hamilton’s reassurances that the court was “the least dangerous branch”, worries continued to exist. Shortly after its establishment, Jeffersonian Republicans expressed dissatisfaction with the Federalist judiciary, claiming that it was eroding the authority of Congress. In his inauguration speech in 1861, Abraham Lincoln said that if the court were to settle political matters, it would result in the people no longer governing themselves.
At the turn of the twentieth century, charges of inappropriate policymaking were leveled against the Supreme Court’s conservative decisions invalidating economic regulations, notably its 1905 decision in Lochner v. New York 1, which overturned a New York law limiting the number of hours bakers could work. Lochner case paved the way for the Supreme Court to declare New Deal laws as unlawful. It is widely seen as a prime example of judicial activism, demonstrating the Court’s reluctance to defer to the legislature when it comes to economic regulation. As a result of decisions like Lochner , Franklin Delano Roosevelt famously proposed “packing” the Supreme Court with justices sympathetic to his policies.
Although these early critics of judicial authority did not explicitly use the phrase “judicial activism,” they plainly alluded to it in concept, often when expressing disapproval of the Court. Arthur Selwyn Miller noted that the Supreme Court has faced periodic criticism since 1803 for being too active. However, the grounds for the criticism and the organizations expressing it have not always been consistent. However, not all analysts have criticized judicial activity. Keenan D. Kmiec, in his insightful analysis, proposed that during its first stages, the word “judicial activist” had a positive meaning, like a “civil rights activist” rather than a judge who misuses their position.
Judicial Activism Vs. Judicial Restraint
Judicial restraint refers to a method of judicial scrutiny that involves either procedural or substantive approaches. The concept of restraint, as a procedural theory, compels judges to abstain from making decisions on legal matters, particularly constitutional ones, unless such decisions are essential for resolving a specific conflict between opposing parties. As a fundamental principle, it advises judges who are deliberating on constitutional matters to give significant respect to the opinions of the elected bodies and only invalidate their acts where there is a clear violation of constitutional restrictions.
Judicial Activism refers to the judiciary’s responsibility to protect and enforce the legal and constitutional rights of people, as previously stated. The judiciary wields its authority to enforce or invalidate laws and regulations that violate people’s rights or serve the greater benefit of society, depending on the circumstances.
Conversely, Judicial Restraint represents the opposite side of the same issue. Activism, in contrast, is bound by constitutional laws while carrying out its responsibilities. It promotes the judiciary’s adherence to the laws and regulations outlined in the constitution.
The judiciary has acquired authority via judicial activism, allowing judges to address issues suo-motu whenever they see a violation of fundamental provisions. Nevertheless, while practicing judicial restraint, the court must comply with the executive branch, which has been granted exclusive authority to create laws for the general population.
Judicial Activism in India
Judicial activism is a legal principle that first emerged in the United States in 1947. It has been observed in India since the period of the Emergency.
The judiciary has a crucial function in safeguarding and advancing the rights of individuals within a nation. Judicial activism refers to the proactive involvement of the judiciary in safeguarding people’s rights and maintaining the integrity of the constitutional and legal framework of the nation. This involves sometimes encroaching into the domains of the executive branch. Candidates should be aware that judicial overreach is an intensified form of judicial activism.
The efforts of justices V R Krishna Ayer and P N Bhagwati have been successful in liberalizing access to justice and providing assistance to underprivileged communities, which is why judicial activism is seen as a success.
When discussing judicial activism, the idea of Public Interest Litigation (PIL) is constantly brought up.
Methods of Judicial Activism
India employs a range of judicial activism methods. The items are:
- Judicial review refers to the authority of the court to interpret the constitution and invalidate any legislation or executive order that is found to be in contradiction with the Constitution.
- The PIL (Public Interest lawsuit) is recognized by the court only if it involves a significant public interest and the individual submitting the petition has no personal interest in the lawsuit. The injured party is not the one who files the petition.
- Analysis of the Constitution’s meaning and intent.
- Utilization of global legislation to guarantee constitutional rights.
- Jurisdictional authority of superior courts over inferior courts.
Significance of Judicial Activism
- It serves as a potent instrument for safeguarding individuals’ rights and enforcing constitutional principles in cases when the administration and legislature are unable in doing so.When all other avenues are exhausted, citizens rely on the court as their last recourse to safeguard their rights. The Indian judiciary is often regarded as the custodian and defender of the Indian Constitution.The constitution itself has provisions that allow the court to take on a proactive role. Article 13, in conjunction with Articles 32 and 226 of the Constitution, gives the higher court the authority to evaluate and invalidate any executive, legislative, or administrative action that violates the Constitution.
- Experts assert that the transition from locus standi to public interest litigation has enhanced the participative and democratic nature of the judicial process.
- Judicial activism challenges the notion that the judge is just an observer.
Examples of Judicial Activism
Indira Gandhi’s candidacy was declined by the Allahabad High Court in 1973, which marked the beginning of the process.
- In 1979, the Supreme Court of India determined that undertrials in Bihar had already spent a longer duration in custody than they would have if they had been found guilty.
- The Golaknath case revolved on the issues of whether the amendment is considered a law and if Fundamental Rights may be altered. The Supreme Court argued that Fundamental Rights cannot be limited by the Parliament, as mentioned in Article 13. It further claimed that in order to modify the Fundamental Rights, a new Constituent Assembly would be necessary. It is also said that Article 368 outlines the process for changing the Constitution, but it does not provide Parliament with the authority to modify the Constitution.
- The Kesavananda Bharati case established the fundamental framework of the Constitution via its judgment. The Supreme Court ruled that although the Parliament could change any element of the Constitution, including Fundamental Rights, it cannot abolish the “basic structure of the Constitution” by a constitutional amendment. Judicial review is a fundamental principle in Indian law that allows the court to invalidate a constitutional amendment made by Parliament if it contradicts the fundamental framework of the Constitution.
advantages & Disadvantages of Judicial Activism
Judicial activism refers to the situation when judges inject their own personal sentiments into a verdict or punishment, rather than strictly adhering to the established laws. Every court case inherently has an element of activism. Therefore, it is crucial to carefully consider the advantages and disadvantages in order to assess the appropriateness of the actions being taken.
Advantages associated with Judicial Activism India
- Judicial Activism establishes a system of checks and balances for the other branches of government. It emphasizes the necessity for innovation through a solution.
•In situations where the law fails to establish a balance, Judicial Activism permits judges to apply their personal judgment.
•It fosters confidence in judges and offers a deeper understanding of the issues. The judges’ oath to ensure the country’s justice remains unchanged by judicial activism. Judges are only permitted to act within rationalized boundaries. Consequently, demonstrating the confidence that has been engendered in the justice system and its decisions.
• Judicial Activism assists the judiciary in monitoring the state government’s abuse of power when it interferes with and injures the residents.
•It facilitates the prompt resolution of issues that arise when the legislature is unable to make decisions due to a lack of majority.
Disadvantages Associated with Judicial Activism
- Initially, when it exceeds its capacity to prevent the exploitation or abuse of power by the government. It somewhat restricts the government’s operations. It is evident that it violates the constitutional limit of power by superseding any existing law.
- The judicial opinions of the justices, once they have been rendered for a particular case, serve as the standard for determining the outcome of subsequent cases. The public at large may be negatively impacted by judicial activism, as the judgment may be influenced by personal or egotistical motives.
- The public’s confidence in the government’s integrity, quality, and efficacy can be undermined by the repeated interventions of the courts.
Criticism of Judicial Activism
Judicial activism has been subject to criticism on many occasions. The court often intertwines personal prejudice and beliefs with the law in the pursuit of judicial activism. Another critique is that the principle of separation of powers among the three branches of government is undermined by judicial activism. Oftentimes, the court, under the guise of activity, intrudes onto the administrative sphere and engages in judicial adventurism or overreach. In several instances, there are no inherent entitlements of any collective that are implicated. Within this particular framework, the concept of judicial restraint is being discussed.
Concluding Remarks
Judicial activism is a product that is exclusively fabricated by the judiciaries and isn’t backed by the Constitution. It is fair to say that the separation of powers established by the Constitution is being undermined when the court goes beyond its authority in the pursuit of judicial activism.
The separation of powers would be violated, and the law would be filled with confusion and unpredictability if judges could freely determine and write laws according to their own preferences.
In order to keep things in check, judicial exercise must be respected. Legislators are responsible for making laws, ensuring their correct implementation, and bridging any gaps in the law. Therefore, the judiciary’s exclusive responsibility is to provide interpretation. The preservation of constitutional principles requires a delicate balance between various governmental entities.