NOTE: a source of discussion is based on sources available on the internet and Indian Polity by M. Laxmikanth.
In this article, we provide an analytical framework designed to access the phenomenon of judicial activism in national and international law, even though at national level judicial activism attracted fewer scholars compared to international level, but here we will try to offer a pragmatic definition of judicial activism which comprehensively cover both backgrounds.
Judicial activism, an approach to the exercise of judicial review, or a description of a judicial decision, in which a judge is generally willing to decide constitutional issues and to invalidate legislation or executive actions.
In the judicial branch in the domestic legal context, the domestic lawyer is interested in the power of the judge and gives extensive attention to the issue of judicial activism.
The law of international litigation is still governed by the founding principles, and one can settle their disputes either by mediation or any other kind of peace-loving settlement. It is true that the jurisdiction of some international tribunals is mandatory, but in other sense, it is equally true that these exceptions are treaty-based and as such do not alter the rudimentary scheme of the international legal order.
In the context of the international tribunals, it plays an important role in shaping and structuring the international law, the law of treaties, the law of human rights, the law of foreign investment and law of international trade, etc. but after that even defining the crucial role, modern dynamic conceptualization becomes inevitable.
According to Keenan D Kmiec, judicial activism may be looked as :
Formal judicial activism, in which judge deal with legal issues while in case of substantive judicial activism, being unsatisfied with existing law or lacunae in the existing law, a judge try to explore their knowledge which helps in reducing lacunae in existing law. hence substantive is an innovative procedure in existing law, gives the birth of modern concept called dynamic judicial activism.
In the context of judicial activism, Robert Howse says- It is a tendency to impose on states, a legal limitation not justified by the strict rule of international law.
Hence two close point i.e. judicial and political branches- A judge is activist when they lack deference to political branches and pass judgment on matters which are reserved to political branches.
Judicial activism consists of:
judicial activism denotes the proactive role played by the judiciary in the protection of the right of the citizens and in the promotion of the justice in the society, In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislators and executive) to discharge their constitutional duties. Judicial activism is also known as Judicial Dynamism. it is the antithesis of judicial restraint which means the self-control exercised by the judiciary.
Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from establishing precedence or independent of or in opposition to supposed constitutional or legislation.
In India, the concept of judicial activism is closely related to the concept of Public Interest Litigation (PIL).
Justification of Concept in the context of India:
According to Dr. B.L.Wadehra- there is near-collapse of responsible government when the legislature and executive fail to discharge their respective functions. this results in erosion of confidence in the constitution and democracy amongst the citizens.
The citizens of the country look up to the judiciary for the protection of their rights and freedoms. this leads to tremendous pressure on the judiciary to step in aid for the suffering masses.
judicial enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages PIL and liberalizes the principle of Locus Standi.
Legislative vacuum, that is, there may be certain areas, which have not been legislated upon. It is, therefore, upon the court to indulge in judicial legislative and to meet the changing social needs.
The constitution of India has itself adopted certain provisions, which gives the judiciary enough scope to legislate or to play an active role.
Activators- Civil right activist, people right activists, Consumer rights groups, Bonded labor groups, Rights of child groups, etc.
Apprehensions- the facts entails invocation of a wide range of fears, the invocation is designed to bring into nervous rationality among India's most conscientious justice.
Type of fear- Ideological fear, epistemic fear...
Supreme Court Observation: While delivering a judgment in December 2007, the SC of India called for judicial restrain and asked courts not to take over the function of the legislature or the executive saying there is a broad separation of power under the constitution and each organ of the state must have respect for other and should not encroach on the others domain. In this context, the concerned bench of the court made the following observations.
In this article, we provide an analytical framework designed to access the phenomenon of judicial activism in national and international law, even though at national level judicial activism attracted fewer scholars compared to international level, but here we will try to offer a pragmatic definition of judicial activism which comprehensively cover both backgrounds.
Judicial activism, an approach to the exercise of judicial review, or a description of a judicial decision, in which a judge is generally willing to decide constitutional issues and to invalidate legislation or executive actions.
In the judicial branch in the domestic legal context, the domestic lawyer is interested in the power of the judge and gives extensive attention to the issue of judicial activism.
The law of international litigation is still governed by the founding principles, and one can settle their disputes either by mediation or any other kind of peace-loving settlement. It is true that the jurisdiction of some international tribunals is mandatory, but in other sense, it is equally true that these exceptions are treaty-based and as such do not alter the rudimentary scheme of the international legal order.
In the context of the international tribunals, it plays an important role in shaping and structuring the international law, the law of treaties, the law of human rights, the law of foreign investment and law of international trade, etc. but after that even defining the crucial role, modern dynamic conceptualization becomes inevitable.
According to Keenan D Kmiec, judicial activism may be looked as :
- Invalidation of arguably constitutional actions of other branches.
- Failure to adhere to precedent.
- judicial legislator.
- Departure from the accepted interpretative method
- Result-oriented judging.
- Breaking precedent.
- Controversially construing constitutions, statutes, or precedents.
- Refuse to take an attitude of judicial deference.
Formal judicial activism, in which judge deal with legal issues while in case of substantive judicial activism, being unsatisfied with existing law or lacunae in the existing law, a judge try to explore their knowledge which helps in reducing lacunae in existing law. hence substantive is an innovative procedure in existing law, gives the birth of modern concept called dynamic judicial activism.
In the context of judicial activism, Robert Howse says- It is a tendency to impose on states, a legal limitation not justified by the strict rule of international law.
Hence two close point i.e. judicial and political branches- A judge is activist when they lack deference to political branches and pass judgment on matters which are reserved to political branches.
Judicial activism consists of:
- The judicial function- Here judge is considered as dispute settler.
- View of determinacy in the system- It includes, what counts law in system and interpretation of the law.
- The relation between judicial and political branches.
- The mechanism of political control.
- Nature of proceedings.
judicial activism denotes the proactive role played by the judiciary in the protection of the right of the citizens and in the promotion of the justice in the society, In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislators and executive) to discharge their constitutional duties. Judicial activism is also known as Judicial Dynamism. it is the antithesis of judicial restraint which means the self-control exercised by the judiciary.
Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from establishing precedence or independent of or in opposition to supposed constitutional or legislation.
In India, the concept of judicial activism is closely related to the concept of Public Interest Litigation (PIL).
Justification of Concept in the context of India:
According to Dr. B.L.Wadehra- there is near-collapse of responsible government when the legislature and executive fail to discharge their respective functions. this results in erosion of confidence in the constitution and democracy amongst the citizens.
The citizens of the country look up to the judiciary for the protection of their rights and freedoms. this leads to tremendous pressure on the judiciary to step in aid for the suffering masses.
judicial enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages PIL and liberalizes the principle of Locus Standi.
Legislative vacuum, that is, there may be certain areas, which have not been legislated upon. It is, therefore, upon the court to indulge in judicial legislative and to meet the changing social needs.
The constitution of India has itself adopted certain provisions, which gives the judiciary enough scope to legislate or to play an active role.
Activators- Civil right activist, people right activists, Consumer rights groups, Bonded labor groups, Rights of child groups, etc.
Apprehensions- the facts entails invocation of a wide range of fears, the invocation is designed to bring into nervous rationality among India's most conscientious justice.
Type of fear- Ideological fear, epistemic fear...
Supreme Court Observation: While delivering a judgment in December 2007, the SC of India called for judicial restrain and asked courts not to take over the function of the legislature or the executive saying there is a broad separation of power under the constitution and each organ of the state must have respect for other and should not encroach on the others domain. In this context, the concerned bench of the court made the following observations.
- The Bench said- we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges can not cross their limits and try to take over the functions which belong to another organ of the state.
- The bench said- judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors.
- Judicial activism must not become judicial adventurism, the bench warned the court's adjudications must be done within the system of historically validated restraints and conscious minimizations of judges' preferences.
- If the legislature or executive was not functioning properly, it was for the people to correct the defects by exercising their franchise properly in the text of elections and voting for candidates who would fulfill their expectations or by other lawful methods i.e. peaceful demonstration.
- The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the constitution but also the judiciary has neither the expertise nor the resources to perform these functions.
Good efforts....
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