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Judicial Activism

Judicial Activism

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Encyclopedia of Law & Society:American and Global Perspectives
Judicial Activism
Contributors: David S. ClarkPrint Pub. Date: 2007Online Pub. Date: September 25, 2007Print ISBN: 9780761923879Online ISBN: 9781412952637DOI: 10.4135/9781412952637Print pages: 845-847This PDF has been generated from SAGE Knowledge. Please note that the paginationof the online version will vary from the pagination of the print book.
 
SAGE India SK TrialCopyright ©2012SAGE Publications, Inc.Page 2 of 7Encyclopedia of Law & Society: American andGlobal Perspectives: Judicial ActivismSAGE knowledge
Willamette University 
10.4135/978141295263710.4135/9781412952637.n383Judicial activism is a process by which judges aggressively assert their power beyondthe traditional role of dispute adjudication under a constitutional framework of separationof powers. The philosophical justification for judicial activism has varied depending onplace and time, but discussion about the role of judges in constitutional democracieswas reappraised during the late twentieth century. Some argued that judges did notmerely adjudicate rights and wrongs but were vigilant sentinels (
qui vive 
) as well.The judiciary was a profession with a passion for justice. Judges often developed aheightened political consciousness concerning the structures of society and the natureof the social transformation process. As Benjamin Cardozo, U.S. Supreme Court justice(1932–1938), wrote: “Judges are men not disembodied spirits, they respond to humanemotions. The great tide and currents which engulf the rest of mankind do not turnaside in their course and pass the judges idly by” (1921). Activist judges have usedthis “heightened consciousness” to promote and actively participate in actualizing theenlightened values of socioeconomic justice embodied in their country's constitution.The Indian Supreme Court since the late 1970s provides an interesting example of thisphenomenon.
Supreme Court of India
As the Indian Supreme Court emerged from the dark days of Indian democracy, it wason a quest for its identity. The celebrated decision of
Maneka Gandhi v. Union of India 
,A.I.R. 1978 S.C. 597, was a step in that direction. In redefining “procedure establishedby law” as “just, fair and reasonable law,” the Court by the stroke of a pen shook offthe limitations imposed on it by the framers of the political document. Although thisimportant decision gave the Court the power to review legislative action, the Courtcontinued to function within the narrow British precincts that it had inherited.However, between 1978 and 1982, four crucial events occurred that completely revisedIndia's judicial functioning. In 1978, the Court treated a postcard addressed to a Judge
 
SAGE India SK TrialCopyright ©2012SAGE Publications, Inc.Page 3 of 7Encyclopedia of Law & Society: American andGlobal Perspectives: Judicial ActivismSAGE knowledge
of the Supreme Court as a writ petition. In 1980, the Court ruled on a habeas corpuspetition filed, based on a newspaper report, on behalf of prisoners languishing in theremote jails of Bihar; the Court held that defendants have the right to a speedy trial,as part of the Constitution's article 21. That same year, the Supreme Court, in
Minerva Mills v. Union of India 
, A.I.R. 1980 S.C. 1789, held that parts III and IV were “the core ofsocial revolution” under the Indian Constitution and added that “to give absolute primacyto one over the other [would be] to disturb the harmony of the Constitution.” Finally, in
S. P. Gupta v. Union of India 
, A.I.R. 1982 S.C. 149, the Court widened the principleof
locus standi 
under the Constitution, holding that any public-spirited individual couldapproach the Court for a remedy when the victims themselves were precluded fromapproaching the Court on grounds of illiteracy, inaccessibility, or disability.There were two important consequences of these events. First, article 21 became therepository of all socioeconomic rights mentioned in part IV of the Indian Constitution,including rights not otherwise enumerated in the Constitution. Second, “publicspirited”individuals had a new constitutional role. The result was the formation of a new orderof rights that affected India's constitutional dynamics in many ways. The floodgatesopened. Social action litigation became the word of the town and the tool of the judiciary. The Supreme Court was more eager than ever before to “democratize justice,”and “socially spirited” individuals and organizations were ever more willing to oblige theCourt.
[p. 845
]
Social Action Litigation
In the last two decades, social action litigation has so deeply affected constitutionallaw in India that one could not discuss judicial functioning today without addressingthis aspect. The action that began with freeing prisoners awaiting trial in jails in remotedistricts of the state of Bihar has extended to many areas of crucial importance. Hardlyany area of constitutional importance has remained untouched by the passion of socialaction litigation. Its impact has been particularly strong in the evolution of law relatingto fundamental rights and directive principles. Although difficult to enumerate all ofthe areas of constitutional law that have benefited from social action litigation, one

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