Judicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern. Judicial activism must also function within the limits of the judicial process. It is important to keep the judiciary in the purview of scrutiny. Judicial activism and judicial abdication are both undesirable extremes. The real challenge is to achieve a balance between the two. True virtue lies in adopting the middle path. It is well said that all power is of an encroaching nature, if it is not put under self-restrain. It is a human weakness. And judicial power too is not immune against this human weakness.
While it is imperative to exercise justifiable restraint and caution to ensure that judicial activism does not become judicial adventurism or tyranny, this power should be exercised only in exceptional circumstances and that too, only in public interest. Judiciary, being the eminent pillar of the country, people look up to it, with the hope of justice. What happens when the judges overreach their power and put the largest democracy in a fear of losing its ‘republic’ status. Judicial restraint is not just acquainted with the equality of the two other pillars with the judiciary but it also furnishes that equality by reducing the inter-branch interference by the judiciary. Judiciary should respect the other two co-equal pillars by exercising judicial restraint. Restraint stabilizes the judiciary so that it may function in a better way maintaining inter-branch equality. Judicial restraint tends to protect the independence of the judiciary. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.
Former CJI, Justice S.H. Kapadia had said, “there is need of judicial self-introspection, and judicial activism could be permissible when it comes to extending human rights principles to give them a constitutional cloak but the policy and legislative domains must not be encroached by judiciary”. Supreme Court of the United States, which has rightly said in a case that “it (judiciary) must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint”. Otherwise, the day is not far when in the spell of adventurism, some Honourable Judge of the Indian Judiciary gives meaning of the colour ‘black’ to be something ‘white’.
Judiciary is highly allured nowadays to interfere with legislations which are not under the ambit of their power. Judicial legislation is to some extent unavoidable in the modern era for two reasons: (1) since modern society is dynamic, the legislature cannot possibly envisage of, and cater to, all the developments which may take place in the future. Hence there will be gaps in the statutory law which have to be filled in by judges. (2) The Legislature may often be unwilling or incapable of making a modern law which is of pressing need, and then this job has sometimes to be done by the court.
There are two kinds of judicial legislations, one is the legitimate judicial legislation and the other is illegitimate judicial legislation. For example on the one hand, in the Vishaka case, there was a pressing need of time to be provided with some guidelines against the harassment of women at workplace. So, it was a legitimate judicial legislation. On the other hand the river connecting cases.
The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations.
The debate is: who is the judiciary accountable to? Is it accountable to anyone at all?
Some suggest that the judiciary can enter into the domain of the executive or legislature because these organs are not functioning properly. But it can also be said that the judiciary, too, is not functioning properly, there is great delay in deciding cases, corruption in a section of the judiciary, etc. Should then the legislature or executive take over the judiciary’s function? The judiciary is a beloved institution and the repository of public faith and it must be protected from public attacks. If it’s not protected then the judiciary might soon be labelled as a Pandora box by those who don’t agree with the judgements, and that in turn, will simply cast aspersions on judges.
About the Author
Sonal Gupta is pursuing her B.A. LLB from HariSingh Gour University. She is fond of reading and loves to write on various legal topics. She plans to serve her country through the eminent pillar of judiciary. She is currently pursuing her internship with Alexis Centre for Public Policy and International Relations.