We have an active Judiciary and a passive Executive. Parliament is involved in endless bickering. It is no doubt true that the Judiciary must confine itself with enforcing the Constitution and the laws. But it is also true that while interpreting the Law and the Constitution they expand the meaning of both. This lead to many new interpretations and social changes. That is why Justice Holmes said that Judges do and must make the law. They become the voice of social conscience. Since Chief Justice Bhagavati’s time the Judiciary has become very active. I want you to spend some time in your workshops to discuss this topic thoroughly and study the various view points expressed in the blog.
1.What is Judicial Review ?
The power of courts of law to review the actions of the executive and legislative branches is called judicial review
Judicial Review refers to the actions taken in by the Judiciary when the functions carried out by the Executive and Legislative wings are monitored for review whether they abide by the framework of the fuctioning wrt the Constitution.
2.How is Judicial Activism different from Judicial review?
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. Judical activism is when judges “strike down” laws without being objective; when the judges just plainly don’t like the law
Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution). Judicial review is an example of the separation of powers in a modern governmental system.
Judicial review is when the judges OBJECTIVELY resolve legal disputes about what the Constitution means.
Judicial Activism: Judicial Activism refers to the involvement of the Judiciary by expressing its concerns on the functioning of Social, Developmental and Environmental issues is termed as Judicial Activism. Judiciary need not necessary follow the prescribed process of litigation.
Judicial Review: This refers to the power of the courts to pronounce the validity of the acts of public authorities such as the Executive and the Legislative.
Judicial Activism: When implementation of a certain legislation is improper, and hence there is gross injustice to people, when a citizen files a petition, the judiciary issues directions/ suggests measures for implementation of the same. The judiciary steps into the realm of policy making and implementation. Frequently involves judgments on PILs on various issues. The scope of law may be expanded on account of the interpretation, by the judiciary.
Judicial Review: When the constitutional validity of a legislation/amendment is challenged by a citizen, the court looks into it. It examines the validity of the law. But not suo moto.
Judicial Review is a part of basic structure of the constitution.
3.When does Judicial Activism take place?
Judicial activism can take many forms: it may simply mean that judges are speaking out on controversial ethical and political issues when such pronouncements are not really proper to the role of a judge and ” when judges substitute their own political opinions for the applicable law, or when judges act like a legislature ,, rather than like a traditional court. In so doing, the court takes for itself the powers, rather than limiting itself to the powers traditionally given to the judiciary.
Judicial activism takes place when courts do not confine themselves to reasonable interpretations of laws, but instead create law.
, it can be used radically to reinterpret and rewrite the law, to suit trendy political changes or to enforce a stifling Political Correctness.
Under normal circumstances Judicial Activism should not be encouraged. Given a situation when the entire political functioning is in a mess, this couls lead to Administrative paralysis, at this juncture does Judicial Activism come into effect.
Example: Monitoring of the CBI by the Supreme Court in the Hawala Case is an example of Judicial Activism
Judicial activism is not a permanent solution.
It can only work as a threat if nothing if nothing else works. However, even with regard to judicial activism, there should be a sense of practicability.
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4. Explain Judicial Activism on the issue of Black Money
The government recently accused the Supreme Court of trespassing into its territory when it ordered it to set up a special investigation team headed by a retired Supreme Court judges to probe black money cases. The government said it was judicial overreach into Executive functions and was against the principle of ‘separation of powers’. What the court has done is to merely ensure that the investigation was done properly and everything was in order.
Black money, after all, refers to the sum total of unaccounted income, and not just the funds spirited away to Switzerland, Lichtenstein, or some other foreign safe haven
Indians have always been captivated by the idea that our national wealth is slowly being drained abroad. That is why the Supreme Court’s decision to set up a Special Investigation Team to ensure the return of money stashed abroad will be widely welcomed
Upset by the slow progress made by the government’s High Level Committee on the return of black money, the Supreme Court has now justly decided that its work must be supervised. This is an example of Judicial Activism.
The SC discarded the submissions of the Union Govt that it had obligations under international law which prevented disclosure of names of account holders prior to commencement of the prosecution/trial.
Further, the SC also appointed its own SIT to look into the issue. I think the judges were irritated by the inaction on the part of the government.
5. Judicial Activism must keep in mind the question of Practicability. Explain.
In a certain case, the SC intervened in the immediate claen up of the waste and garbage clean up in the Delhi municipality. This was an example of intervening of Environmental issue.
But to do this/ administer theclean up, it must be noted that Administering or carrying out the functioning activity is a huge task and this needs to be practically thought how it is to solved.
6. What action did the SC take in the Tajmahal case ?
Mehta sought to protect the Taj Mahal,
The Taj faced serious threats from pollution from nearby
industries. As a result of Mehta’s suit, the Supreme Court of India banned the use of coal
by industries in the Taj Trapezium and ordered the planting of more than 200,000 trees
surrounding the Taj Mahal. Mehta began this action more than twenty years ago and has
made nearly a thousand appearances before the Court in this case. His efforts continue to
this day.The Petition was filed in the year 1984. The Supreme Court of India delivered a historic Judgement in December 1996. The apex Court gave various directions including banning the use of coal and coke and directing the industries to switch over to Compressed Natural Gas (CNG).
7. What is the legal authority for the courts to exercise the [ower of Judicial review?
The Constitution gives the Judiciary the right to the courts of carrying out Judicial review. With regard to the fundamental rights, the courts ensures it safeguards the same. But judicial activism is not practical in the long run. It is a last resort remedy.
The judgment upholds the right of judicial review and the supremacy of judiciary in … guarantee and security to all the people of India, justice, social, economic and … without proper legal authority was to be released at the intervention of the Court.
Judicial Review, per se, is not explicitly present in the text of the Constitution. But, by virtue of the concept of basic structure a la Keshavanada Bharati case, it has become a part of the Constitution.
8. What purpose does Judicial Activism serve?
If the executive is insensitive and indifferent, the court should intervene. But judicial activism should be only seen as filling a lacunae.
Judicial Activism serves as a bitter pill for the Executive to swallow, when there is paralysis of administration. But it cannot be a panacea for all ills, nor can it be an alternative to good governance.
The judges may order the municipality to clean up all the garbage or provide shelter to all the homeless, but will they be able to physically monitor the implementation on a day to day basis?
9. Can the Judiciary solve all problems through Judicial Activism?
To my perspective I feel that the Judiciary cannot solve all the problems through Judicial Activism. In cases where the executive and legislative functioning fails, the intervention of Judiciary is necessary because till the system (Govt) becomes more transparent and accounatable in its functioning, the common man looks upto the Judiciary for justice to prevail.
10. Has the Judiciary a political role?
In india, it must be noted, that the Judiciary is independent body, and monitors the functioning and ensures whether the Executive and Legislature perform their duties as per the framework within the Constitution.
If at all, the Judiciary had political motives, the entire nation entrusting its beliefs upon this strong Apex body would have been long vanished.
The political role of the judiciary is to uphold the political philosophy enshrined in the Preamble, and must stop at that.
Recently though, it is noted that the obiter dicta of judges includes critique of government policies etc. Policy making and politics must not be handled by Judiciary.
11. Why has this problem of Judicial Activism arisen?
Because of the political mess created due to the improper fuctioning of the esteemed legislature and executive, steps in the prominence of Judicial Activism.
It must be noted the Judicial Activism should be sorted out as a last resort remedy.
12. How has the Judiciary reacted to the inaction on the part of the Executive and Legislature to tackle the problems of the people?
In the words of Cheif Justice Earl Warren of the U.S Supreme court , ” The maintenance of the judicial power is essential and indispensable to the very being of this government. The constitution without it would be no constitution, the government would be no government.”
Through social litigation, Judicial Activism fights the injustice shown towards the poor.
Though the judiciary has lately played more active role in accelerating social and ameliorative measures to be taken by the executive, it is not vain enough to hold that the courts have answers for every problem that concerns the society.
13. Explain the role played by the Organization Common Cause
As an example of Judicial Intervention, the Case of Common Cause the Supreme court had to intervene regarding the Malfunctioning of the Blood Banks. The common cause also approached the Supreme Court in matters relating to the non-establishment of Consumer Courts in the states.
14. Rules and regulations, laws and procedures, operative at present, were formulated decades ago, in many cases long before Independence. They need ot be changed. Comment
“Climate makes Law” said once a famous political philosopher. Laws, rules, regulations must keep up with the times and changing demands.
Take for example the much antiquated Land Acquisition Act 1894, which must be urgently replaced. Many governments have misused the concept of ’eminent domain’ and ‘public purpose’ present in the act.
Also, new forms of cyber crimes are emerging day by day. Our laws must be upgraded to tackle new crimes.
15. When the poor and deprived have no where to go and they suffer from injustice, judicial activism helps. In this connection please discuss in the workshop with the help of a note available in the Office under the heading Cases involving Judicial activism.
There are numerous factories near the vicinty around the Taj Mahal. Considering the fact of environmental air pollution happening because of the pollutants leading to the tarninshing of this beautiful monument, the SC intervened and sanctioned an order to close down all factories in the vicinity. The SC left this decision to be made by the Technical bodies.