Description: This article is related to judicial activism. The author primarily interprets what the judicial activism is by lots of political things of India, he also makes a distinction between the judicial activism and judicial restraint.
In this content, I am going to talk to you regarding judicial activism. What is judicial activism? I am going to talk to you about judicial activism in the context of India. This concept of judicial activism originated in the United States of America, and this was introduced to India in 1970s.
The persons had major roles in the introduction of judicial activism in India, their name were Christian, Parvati and Da Desai. It was said that these persons laid the foundation of judicial activism in India. What is judicial activism? This is a proactive role played by judiciary to protect the rights of the citizen against the access of the legislature and executive.
Anything that promotes the justice for the citizen of India comes under judicial activism. Judiciary is doing anything to promote social and economic justice for the people of India. So this is judicial activism. You can understand the contour of this word.
The contour of this judicial activism are very wide. It includes lot of fields. Judicial activism is also known as judicial dynamism. It means that there is no judicial restraint. What is judicial restraint? It is the practice by the judiciary which confines itself to the interpretation of law strictly and pronounces judgments from the cases.
Judicial activism is in a position to the judicial restraint, it is getting into the spheres of executable legislation for positive reasons. Because when you are transgress for negative reasons, it will become judicial terrorism not judicial dynamism.
There are two scenarios with judicial activism. The first scenario is that judicial activism is a trend which encourages the judges to exercise their judicial power which is not based on their normal adherence to the judicial precedence, they depart from their normal course of action, they rule in such a manner that they are giving. That decision is in favor of progressive and new social policies.
The law making is the domain of legislature, policy implementation is the domain of executive. If the judiciary is leaving its own domain to come into the field of implementing the policy or suggesting something towards the policy or propounding provisions of the policy, then it will get into the domains of executing and legislature. So this is judicial activism.
This is like social engineering. They represent intrusion in the legislative and execute affairs like that. Judicial activism is a practice of protecting individual rights from diseases that depart from established precedent. Established convention or legislative is one phrase, this is one meaning that you can understood easily. That may transgress into the fields of legislature and executive, but it is very productive and progressive.
Why it is important that the judiciary leaves its sphere of action to go into uncharted territories? Because Indian Constitution has said that legislature is separate, executive is separate, judicial subset are equal in power. So they have their own sphere of influence, lawmaking and decision-making. Now India is taking a positive note for judicial activism. Despite it is transmitting the power, some other fields should have some reasons for it.
Why it is important? The first reason is that we choose the government, Lok Sabha. It represents the legislature and legislation. The members of are elected by the members of the State Legislative assemblies. So this legislature is at the central level. What is executive? It becomes the Council of Ministers. So legislature and executive do not perform the duty.
So the wrong things are not being corrected by the legislature in executing, this is one reason why the transgression of judiciary in the Legislative and executed fields is important. The citizens look towards judiciary in a progressive manner. They think that the level of education is going up, so the understanding of the problem of the society is increasing.
So people know what the problem of the executive and legislature is, the political party which is in power is bound by certain constraints. Why it is bound by certain countries? Because the political party has to look at the next election whether they will be able to win the next election or not. So it is the judiciary which pronounces a progressive judgment compared to legislature and executive, because some important legislation has been pending with the legislature for decades.
The legislature can instruct the legislation to do something positive. Instead of that, the legislature is not doing something positive in judiciary. So this is why people are looking forward to that judiciary should make decisions which are useful and beneficial for the society and people.
Judges are encouraged to participate in social reforms with the changing times and social responsibility, because judges are motive and ruling in the decisions of the cases. The situation of women is bad, it should be improved. A lot of new things are coming from the judiciary.
So what is happening? That conventional concept of locus stand is getting violated, cognizance is being taken by the judiciary. Locus stand is a conversion phenomena. If a dispute comes to the court, locus stand can bring the dispute to the judiciary. So only the person can take his problem to the court.
But consumer to take the cognizance of that matter or any other persons who was aggrieved can file a case in in the judiciary and get justice for it. So judicial activism implies the concept of violation and entertaining the cases which may be filed by anyone else. It is not important that it should be filed by the person who is aggrieved. So this is one thing that there is legislative vacuum.
So important diseases are not being taken for the judicial for a long time, they’re pending. So it becomes important for the judiciary to step in. The Constitution of India has certain provisions to give the judiciary a discretion to take decisions that points.
I will take up later in this content. Why the judiciary can use its power of judicial activism to transfer the powers of trial, execute and legislation? What happened? If the legislature is fading to complete, judiciary will have to step in and do something.
What does the hung legislature mean? Elections took place, a coalition government is formed, no party has majority seats, the main government is not getting support from its partners to take important decisions.
So important diseases are not being taken, because the incumbent government doesn’t has a clear majority. In that case, the legislature is not able to take decisions. There are many reasons that the legislature is not able to take decisions, it can be hurting the sentiments of a particular class or reducing its vote based on legislature.
At this point, if this is not a clear majority, if there is a coalition government and the diseases are not being able to take in by the legislature with a proper mandate, then judiciary can step in and track the process. If those in power are afraid of taking honesty, if they fear of losing power, the codes can step in and do things.
A friend said, there was a case that civil servants were pressed by the bureau to act, the civil servants had to work according to the bureau even if it was wrong. So in that case, supreme court came to rescue this situation. Supreme court said that, if you are harassed by any politician, you can ask for that order in writing. If he does not give that order in writing, you will not do that thing.
This is the support for the Civil Services in the bureaucracy, that is against the legislature or against the executive. So this is the role that the supreme court plays, it is very important for the healthy functioning of our democracy. This is the concept of judicial activism.
One thing that I need to tell you in this subsequent content is about the public interest litigation. The best mechanism through judicial activism is being exercised in public interest litigation of India. It is the strongest mechanism through judicial activism. It is influential in India.
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