Judicial activism What is judicial activism ?

• • • • Judicial activism is a term used by political commentators to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law Formally, judicial activism is considered the opposite of judicial restraint, but it is also used pejoratively to describe judges who endorse a particular agenda Although alleged activism may occur in many ways, the most debated cases involve courts exercising judicial review to strike down statutes as unconstitutional Views about constitutional interpretation abound, ranging from strict constructionism to the living constitution, and therefore, in practice, any controversial decision striking down a statute may be labeled by the decision's critics as judicial activism
Black's Law Dictionary defines judicial activism as "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent."

David Strauss of the University of Chicago Law School has argued that judicial activism can be narrowly defined as one or more of three possible things:[3]  overturning laws as unconstitutional  overturning judicial precedent  ruling against a preferred interpretation of the constitution

The methods by which judges engage in judicial activism, according to critics[Who?] who make this accusation, include the following:[citation needed] • • • • Overturning legislation passed by an elected legislature, using an interpretation of the constitution that critics[Who?] believe is not clearly mandated or implied by the constitutional text; Ruling against the text or intent of a statute, using what critics[Who?] argue is an incorrect or overreaching interpretation; Ruling against judicial precedent in a way that critics[Who?] hold is a radical or unjustified departure from accepted interpretation; Holding legislation unconstitutional based on what critics[Who?] view as a clearly flawed precedent; Selectively using obscure case law or foreign law, in preference to what is seen by critics[Who?] as more pertinent case law or statutory law; and Use by state courts of a single subject rule to nullify legislation or state constitutional amendments, in what critics[Who?] say is a questionable manner

“everyjudge is an activist either on the forward gear or the reverse. means ‘being active’.g. or else any group of people engaged in any behavior could become a judicially protected minority. the discretion of judges must be limited (e. others welcomed the manner in which the judiciary was re-defining its role in a corruption-ridden system. the origin of which lies in the ‘inactivism’ of other two wings of the government . It is the judicial wing of the state that injects life into law and supplies the missing links in the legislation …  Against Detractors of judicial activism charge that it usurps power of the legislature. or atleast. notwithstanding the political sentiments of the day. and that constitutional democracy is far more than just majority rule Some proponents of a stronger judiciary argue that the judiciary should grant itself an expanded role to counterbalance the effects of majoritarianism. Inthis sense every judge is. . the judiciary responded to the knock of the poor and the oppressed for justice. is not distinctly separate concept from usual judicial activities. ‘doing thingswith decision’ and the expression ‘activist’ should mean ‘one who favours intensified activities’. infact. so that the majority cannot dominate any particular minority through its elective powers Judicial Activism refers to the phenomenon of the courts dealing with those issues which they have traditionally not touched or which were not in the contemplation of the founding fathers . as Justice Krishna Iyer observed. The expression ‘activism’. and any law could be subverted by the predilections of unelected judges  judicial activism had upset the constitutional system of checks and balances. thereby diminishing the rule of law and democracy an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected representatives. Judicial activism. . there should be an increase in the powers of a branch of government which is not directly subject to the electorate. . should be an activist. absent a real conflict with the constitution. by the intentions of lawmakers).”14  Judicial Activism is nothing but court’s move to reach at the doorstep of the ‘lowly and lost’ to provide them justice  One of the meanings of judicial activism is that the function of the court is not merely to interpret the law but to make it by imaginatively sharing the passion of the Constitution for social justice  The ‘Theory of Social Want’ states that the origin and growth of judicial activism lies in the failure of existing legislations to cope up with the problems of our society. . It is a state of mind.Reasons to justify judicial activism Defenders of judicial prerogatives say that many cases of "judicial activism" merely exemplify judicial review courts must uphold the constitution and strike down any statute that violates the constitution that it is the duty of courts to protect minority rights and to uphold the law. lexically as well as in ordinary parlance. The supporters of this theory opine that ‘judicial activism plays a vital role in bringing in the societal transformation. Ultimately.

public places. They opine that the people are losing their faith in their political leadership. In India. Union of India72 are fine examples where the petitioners tried to abuse the PIL to achieve political ends  Judges are also humen. the judicial intervention in legislative or executive domain has endangered the system of checks and balances and has proved to be the main threat to the system of separation of powers in India  autocracy of the judges .  cases in India in favour of judicial activism Similarly. the judicial activism will have a detrimental effect on our democratic order.C. the saviour the captor’  The cases of Janta Dal v. They can also go wrong .  Court has also directed several companies to take all necessary safety measures  . The healer becomes the killer.S.  In M.48Gender jurisprudence has emerged due to judicial activism to protect the woman from exploitation and humiliation.is to be more dreaded than that of the politicians. Moreover. To remove the loopholes the Supreme Court has laid down exhaustive guidelines for preventing sexual harassment of working women. bureaucracy and governmental mechanism. Mehta v.70 Krishna Swami v. . for there is no recourse against it. Union of India71 and Simranjit Singh Mann v.  This emerging ideology will prove fatal for the basic democratic norms. the Court in several cases has affirmed prisoners’ rights. the Constitution and various legislative measures have abolished inequality and atrocities against women yet women continue to suffer injustice. H.the judiciary .47 In some other cases the apex Court has shown its serious concerns over the pollution-ridden national monuments. rivers etc  . State of Tamil Nadu the Court ruled out the employment of children in match factories as it is hazardous and declared various measures aiming at child welfare in some other cases. Chowdhari.49 for protection of women from prostitution and rehabilitation of their children50 etc.  Who will judge the judges ? no one can challenge their decision politically or constitutionally .

However we may conclude with the comments and suggestions given by Poornima Advani on the present scenario.  Thus the weapon of judicial activism must be used carefully. the law is gaining respect.  Yet. the question must remain a question  .  At long last.  It has shown that moneyocracy can no longer corner court resources nor political heavy weights plunder the public treasury without visiting the prison. may turn into a dictator. . The tug of word-war has begun and hopefully some clearer guidelines will emerge.87  That the intelligentia today has begun to look askance: who are ruling. the legislature.86  The judges should exercise self-restraint to avoid the latter use of judicial activism. the executive. Not as a Rampuri knife which can kill. and the highest placed judiciary put their heads together and face the realities and act positively with a one-point goal to take India out of the abyss into which it has fallen. the Supreme Court. whatever be the outcome. Verma (as he then was) has referred to judicial activism as a sharp-edged tool which has to be used as a scalpel by a skilful surgeon to cure the malady.S. the politicians or the judiciary? It is all very confusing and till a clearer picture can emerge. whosoever may be the ruler. As Justice J. justice is as yet a far cry and democracy an illusion for the ruled  It is high time the constitutional heads. the bureaucrats.Conclusion  The Supreme Court’s pivotal role in making up for the lethargy of the Legislature and the inefficiency of the Executive is comendable.85 But the law can be dehumanized and the allegedly infallible final forensic floor.

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