Judicial Activism: Good Or Bad?

Posted by Rashaad Ather in Human Rights, Society
December 15, 2017

Too much of a good thing can be bad, and our democracy is no exception. So, a judicial system was formed to be an antidote if ever needed, in the form that our judicial system has the power to invalidate the legislative acts with respect to the law. There has been some confusion between judicial activism and judicial review. Judicial activism is the ruling of the judiciary in cases pertaining to bringing social or political changes, while judicial review is not the supremacy of courts on executives and legislatures, as popularly thought, but to be of the same status as other branches of federalism.

There have been many instances where the judiciary was found to be in judicial deference to political organizations. Cases like KM Nanavati vs the State of Maharashtra exposed our judicial system’s deference and humbleness to people having power. Similarly, in the case of the Golaknath vs the State of Punjab, earlier the judiciary revoked the Parliament’s right to amend any fraction of the constitution through legislation, but soon after Indira Gandhi got re-elected with a majority in parliament, she passed a bill, passed 6:5 by the bench, allowing the the Legislative Assembly to amend any segment of the constitution, including fundamental rights.

The fact is that the judicial system should not just be a part of the federal system – it should act as a guardian towards other branches of such a massive power distribution system. The job of courts is to help in running the country, led by majority rule, in an effective manner. It should not be allied with any one party.

Though a judiciary that is deferent may invalidate a few and an activism-focused judiciary will certainly invalidate a lot more, it is what we need. It’s good to have more invalidations, as it will lead to more authentic policies. We all know that the initiatives and policies passed by the government are never fully delivered on, and the judicial system is arguably less corrupt than other branches. It was actually activism on part of the judiciary when Article 378 was modified, and amendments to the fundamental rights guaranteed in the constitution were restrained.

Clark M Neilly, an American author, argued, “(That) the judicial invalidations of legislative acts should be rare is no more sensible than saying NFL referees should rarely penalize players for holding.” He further added, “The job of the court is to ensure an individual’s  right is not violated, including the right to earn a living, against special interest litigation.” Nowadays, public interest litigation has become public cause litigation. The courts are not doing proper work on ensuring the rights of citizens. Instead, they are focusing more on criticizing the government just to make a statement.

Only a court inclined towards activism can help in the better functioning of the government, and hence we need more judicial activism.