JUDICIAL ACTIVISM AT ITS BEST AND PERHAPS, ITS WORST

Submitted By: Pranav KhannaLAW Student.Delivering justice to a population of over two billion does not sound like and never will be an easy task. It however, becomes increasingly difficult in a country like India. Thevaried cultures, the environment, the languages and the religions of the people of thiscountry are as balanced as walking a tight rope; one foot wrong can send the entirecountry in disarray. Seemingly overlapping powers of the administrators of the nation cancause some serious trouble in this regard.The Executive, the legislature and the judiciary are the three wings of the Indiandemocracy. The constitution empowers them and burdens them with duties at the sametime. The legislature formulates the law, and the judiciary interprets it. Simple as it maysound, studying the ambit of the words “formulation” and “interpretation” can actuallyleave the best in the business confused. Most believe that the judiciary, under the guise of interpreting the law, goes a step beyond, and ends up giving the country new binding law,which is usually different from the existing one. This is called judicial activism.

The ongoing debate

The definition of "judicial activism" is an intense ongoing debate. According to

Merriam-Webster's Dictionary of Law

, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislativeintent". According to

Black's Law Dictionary

, judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy,among other factors, to guide their decisions, usually with the suggestion that adherentsof this philosophy tend to find constitutional violations and are willing to ignore precedent."Conservatives tend to argue that judicial activism is the process of ignoring, or at leastselectively choosing precedent in order to hand down rulings which dramatically expand personal freedoms. They also complain that the doctrine of

stare decisis

is sometimesused to trump up the original meaning (or, in some cases, the original intent) of the text,or that the text is given so broad a construction so as to render it almost infinitelymalleable

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To others, judicial activism implies going beyond the normal constraints applied to juristsand the Constitution gives jurists the right to strike down any legislation or rule againstany precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active specifically interms of the Constitution.Many are critical of judicial activism as an exercise of judicial power, which displacesexisting law or creates more legal uncertainty than is necessary, whether or not the rulinghas some constitutional, historical or other basis. This, it is argued, violates the doctrineof separation of powers. Judicial activism can be considered as (and is often called)"legislating from the bench" (i.e., promulgation of new law). Some have even gone to theextent of calling it judicial tyranny. An accusation of judicial activism implies that the judge is not performing his or her duty as an interpreter of the law, but is instead rulingon the basis of personal political convictions or emotions.Liberalists’ argume that the Living Constitution philosophy endorses any ruling, so longas the judge can argue that his ruling helps the constitution to grow and evolve. Criticssay that this can violate a judge's sworn allegiance to uphold the constitution, because, ineffect, it encourages judges to write their own constitutions. Furthermore, the LivingConstitution leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of this confusion is the threat of frivolous lawsuits.Critics of the Living Constitution also argue that it violates the principle of separation of powers. They say that because the purpose of the judiciary is to interpret existing lawsand policies, any action which is not done strictly in accordance with existing law must be activism.Opponents of judicial activism claim it is not about liberal versus conservative at all, butabout whether a constitution should be interpreted strictly according to its text, or whether it is an "evolving document" which requires judges to assign new meanings to itswords

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.A review of case laws proves that judicial activism may work towards the benefit of thesociety but that is not always the case. Some judgments have been delivered with greatinsight and vision but some others are based only on self conviction and belief, that sucha judgment would help the parties, without taking into consideration the repercursions onthe law or on the society at large.

JUDICIAL ACTIVISM IN INDIAKehavananda Bharati’s case

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This judgment is one of a kind. It came into being when six writ petitions were filedchallenging the twenty fourth, twenty fifth and the twenty ninth amendments to theconstitution. All the Judges of the bench opined that by virtue of Article 368 as amended by the twenty-fourth Amendment, the Parliament had the power to amend any or all provisions of Constitution, including those relating to fundamental rights. The majoritywere of the view that the power of amendment under Article 368 was subject to certainimplied and inherent limitations. It was held that in the exercise of amending power, theParliament

cannot

amend the

basic structure or framework of the Constitution

. It wasalso held that individual freedom secured to citizens was a basic feature of Constitution,and could not be altered. The judgment also invalidated the second part of Article 31-Cintroduced by twenty-fifth Amendment, which excluded jurisdiction of the Courts toinquire whether law protected under that Article gave effect to policy of securingdirective principles mentioned therein.This was a path breaking judgment which gave birth to the

doctrine of basic structure

. Itwas this judgment that saved the country when Indira Gandhi sought to amend theconstitution so that the courts could not challenge the grounds of her election and to makesure that her election could not be termed void. This case law also overruled the proposition of law which was laid down in Golak Nath vs. State of Punjab.In today’s time, such judgments are few and far between. The next two cases are perfectexamples of what harm judicial activism may cause.

Ashok Hurra vs Rupa Bipin Zaveri

In this particular case, the plaintiff and the defendant filed for divorce by mutual consentafter a few troubled years of marriage. However, the wife withdrew her consent beforedivorce was granted. Keeping this in mind, the lower court did not grant divorce to thehusband. However, taking into consideration the fact that consent had been withdrawnafter the 18 month period prescribed under the Hindu Marriage Act, the High Courtgranted divorce. The wife appealed to the Supreme Court. In the meantime, the husbandgot married elsewhere and had a son. The Supreme Court held that although the husbandought not to have married before the disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it wouldnot be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it was held that divorce had been granted and that the secondmarriage was valid.This Shocking and astounding judgment well and truly defeats the purpose of an appealto the Supreme Court. The Supreme Court accepted that the husband should not haveremarried before the disposition of the appeal but at the same time, it held the secondmarriage valid. Granted that there was no possibility of reconcialiation in the marriagewith Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since theappeal was pending in the apex court, it cannot be said that divorce had been granted with