Judicial Activism: Relevant or Not?

Posted on September 24, 2009 in Society

Anshul Tewari

Delivering justice to a population of over a billion does not sound like and never will be an easy task. It however becomes increasingly difficult in a country like India. The Executive, the Legislature and the Judiciary are the three wings of the Indian democracy.

The consitution empowers them and burdens them with duties at the same time. The legislature formulates the law, and the judiciary interprets it. Simple as it may sound, studying the ambit of the words “formulation” and “interpretation” can actually leave the best in the business confused. Most believe that the judiciary, under the guise of interpreting the law, goes a step beyond, and ends up giving the country new binding law, which is usually different from the existing one. This is called judicial activism.

Conservatives tend to argue that judicial activism is the process of ignoring, or at least selectively choosing precedent in order to hand down the rulings which dramatically expand personal freedoms.

To others, judicial activism implies going beyond the normal constraints applied to jurists and the Consitution, which gives jurists the right to strike down any legislation or rule against the precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active.

Many are critical of judicial activism as an excercise of judicial powers, which displaces existing laws or creates more legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. Judicial activism can be considered as “legislating from the bench.” Some have even gone to the extent of calling it judicial tyranny. This implies that a judge is ruling on the basis personal political convictions or emotions.

Liberalists argue that it is relevant and endorse any such ruling so long as the judge can argue his ruling. They say it helps the constitution to grow.

Opponents of judicial activism claim it is not about liberal versus conservative at all, but about whether a consitution should be interpreted strictly according to its text, or whether it is an “evolving document” which requires judges to assign new meanings to its words.

It is a known fact that judicial activism has given us some very good case laws and path breaking judgements, even led to revolutionary changes in the society, but it’s consistency needs to be questioned.

So what do you feel? Should judicial activism be there at all? Is it relevant? Is there a need for the judiciary to intervene in the matters of the legislature and the executive? Voice yourself. Post a comment or mail us at [email protected]

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