Judicial Activism

Judicial activism is when courts do not confine themselves to reasonable interpretations

of laws, but instead create law. Alternatively, judicial activism is when courts do not limit
their ruling to the dispute before them, but instead establish a new rule to apply broadly
to issues not presented in the specific action. "Judicial activism" is when judges substitute
their own political opinions for the applicable law, or when judges act like a legislature
(legislating from the bench) rather than like a traditional court. In so doing, the court
takes for itself the powers of Congress, rather than limiting itself to the powers
traditionally given to the judiciary.

Distinguish between judicial review and judicial activism in India.

The interpretational and observer role of the Judiciary over the Legislature is called
Judicial Review (JR). The judiciary is the final authority for the interpretation of
constitution in India. The Judiciary can prevent it by declaring the act or action ultra-
virus, if the Legislature transgresses the powers given to it by the constitution. This
power is called JR.

While Judicial Activism (JA) is the concept how actively and quickly the judiciary
performs the act of JR. the readiness that the courts have achieved in exercising its power
to uphold the values of the constitution have been generally come to the extent that JR
has gradually acquired the form of Judicial Activism (JA) in India.

JA is the extent and the vigor and the readiness with which courts exercise their power of
JR. So, there is a marked difference between both of them. Courts have actively
performed an interventionist role and that we have witnessed the phenomenon of JA. The
courts have over thrown or at least liberalized the concept of locust stand to allow any
public spirited person or organization to bring to the notice of the court any matter of
injustice and violation of constitutional rights of any downtrodden and unprivileged
classes of society.

The court has expanded the scope and amplitude of Article 21 to cover many basic rights
under it, so that giving them the status of fundamental rights, they can be enforced
against the state also, even by PIL. Another factor which contributed to the JA was the
expansive judicial interpretation placed on the expression life in Article.
Judicial Activism in India & Abroad

Judicial Activism (What it is?)

In the context of expectation aforesaid it is natural to ask as to what is 'Judicial Activism.

Laws according to social activists, has a social purpose i.e. betterment of society. Judiciary under
our constitution is conceived as an arm of the social revolution. Legislature, while emanating a
law, cannot visualize all situations arising in future and needing the support of law. New
situation- generally and usually develops and the law has to be so interpreted and applied to
solve problems arising out of such situations. In this process, the judicial creativity or
craftsmanship is utilized to fill in the gaps between the law as it is and the law as it ought to be
built in this processes the ability of proper perception' and commitment to proper social values.
This judicial creativity is called 'judicial activism'. In other words it means "an active
interpretation of existing legislation by a Judge made with a view to enhance the utility of
legislation for social betterment.

MEANING OF JUDICIAL ACTIVISM

Judicial activism has to be so understood and with this meaning of the expression it can hardly
be disputed that such action of the judiciary is within the role assigned to it under the
constitution, and it cannot be termed as a trespass in to field assigned to any other wing of the
State. It is true that the occasion for the judiciary to so act, arises quit often because of the
perception of failure of some other organ to discharge its obligation That situation can be
avoided only by preventing that situation by discharge of its functions properly by the other
organs and the absence of the need for anyone to approach the courts for redressal of their
grievances.lt is therefore felt that it is the duty of the judiciary "to keep the charter of the
government current with the times and not allow it to become archaic or out of tune with the
needs of the day."

JUDICIAL ACTIVISM IN INDIA

The Powers of the Supreme Court for the protection of the constitutional rights of citizen are of
the widest amplitude and there is no reason why the court should not adopt activist approach
similar to court in America and issue to the state directions which may involve taking of positive
action with a view to securing enforcement of the fundamental rights.
In Hussainara Khatoon versus state of Bihar
The Supreme Court has held that speedy trial is an essential and integral part of the fundamental
right to life and liberty enshrined in Article 21. In Bihar a number of under trial prisoners were
kept in various jails for several years without trial. The court ordered that all such prisoners
whose names were submitted to the court should be released forthwith. Since speedy trial was
held to be a fundamental rights guaranteed by Article 21 the Supreme Court considered its
constitutional duty to enforce this right of the accused person. The Supreme Court pivotal role in
making up for the lethargy of the legislative and inefficiency of the executive is commendable.
Those who opposed the growing judicial activism of the higher courts do not realize that it has
proved a boon for
The common man. Judicial activism has set right a number of wrongs committed by the states.

JUDICIAL ACTIVISM IN AN ASIAN DEMOCRACY

The doctrine of separation of powers in its strict sense would assign law-making entirely to the
legislative wing of the state confining the role of the judiciary only to the interpretation of the
law. At one time, therefore, it was considered almost a sacrilege as an acknowledged source of
law. Effort was made to emphasis that the judges did nothing more than to interpret the words of
the enacted law. The clear affirmation that the impression was a myth and it is not indecent to
suggest that judges make law, came from Lord Reid in 1972 in famous lecture. 'Acceptance of
the role of judges make law, came from Lord Reid in 1972 in his famous lecture. Acceptance of
the role of the judges as ' law makers' is occasioned more by the change in the concept of the role
of the Courts from a mere instrument of governance to an instrument of society meant
For service of the and implementation of the Rule of law to preserve.

JUDICIAL ACTIVISM IN OTHER COUNTRIES

Recent trends in other countries indicate the expansion of judicial activism. This is natural in
view of the common judicial legacy inherited by us. This trend is predominant in areas pertaining
to Independence of Judiciary and preservation of democratic values. Even in Great Britain where
Parliament is sovereign, the trend of expansion of Judicial Activism has been significant. In an
article Anthony-Lewis said - . Judges in Britain create aflutter", he said that the significant
change towards judicial activism in British courts in. on account.' of outlook of judges and .the
functions they perform. The reasons given in the analysis Gide therein are:
(1) The Judges realize that is a vacuum since the parliament is virtually under the total control
of the executive when it was supposed to correct any Government injustice to individual.
 (2) The modern legislation is loosely drafted and delegates large powers to the Government
which tends often to be arbitrary in its exercise.
(3) The new generation of Judges think of law not as fixed rules but as a set of values
designed above all to protect democracy and human rights; and
(4)The new judicial generation is more outward-looking and is influenced by the Courts in
Commonwealth countries, for example, India in the rigorous enforcement of individual rights.
The aforesaid view reflects the impact o in t h e Indian experience even beyond the frontiers of
this country.

JUDICIAL ACTIVISM AS COMPARED TO GERMANY

The courts whether in India or Germany have a valuable as well indispensable role in the
administrative process through different routes and mechanisms. Judicial process intends to
censor or control the executive with a sole purpose that an administrative authority behaves in
such a way that it must r e a c h “j u s t ends by j u s t means". Judicial role ' is not" jusdicere".
Judges are neither "discustilized" nor “la bouchede la lot" (the mouth of the law). This judicial
activism is molto fortiori as it makes action popular is not only popular through the strategies of
PILISALIPAL vide pro bono public but a "Rule of Life" for the "lowly and the lost", " little
man”, “deprived", "under privileged", "weaker sections of the society”, “destitute". This
innovation of judicial policy making emanate from the junction of interpretation of grand norm
of country. In Germany, all s t a t e s a c t i o n s - l e g i s t a t i v e as well as executive-are
controlled and checked by the judiciary if equality is violated. The prohibition of arbitrariness is
common to all meanings and interpretations which the courts have assigned to equality in
Germany, and as such absence of arbitrariness is not an unknown aspect of equality.
Unequivocally, the Constitutional Court of Germany 'practice some measures of judicial
review"effective1y guarding against invasion or infringement of liberty, life and limb.
Germany’s Constitutional Court has been, the most active as well as assertive cwrt inasmuch as
that it acts with considerable courage and vigor that " it has become the most important source of
judicial influence in German politics and the most active and powerful tribunal in Europe"
(Lewis J. Edinger).
10. As already stated the dependence of administrative law on constitutional law sketches the
structure of administrative process in India and Germany, obviously, comparative administrative
law seems to be a beginning venture, of course with one exception, in a largely ploughed virgin
field in the legal pedagogy.