ARTICLE IN BRIEF: JUDICIAL ACTIVISM by PURNIMA NAIDU @ LexCliq

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ARTICLE IN BRIEF: JUDICIAL ACTIVISM

Judicial review [activism] means power of court of law to examine the actions of the legislative, executive and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are unconstitutional and therefore, null and void. Activism means an institution extending its mechanism of decision making into the domain of other institution’s tasks. The term judicial activism is explained as “judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint of appellate judges.[103] ‘Judicial activism’ is a term that, to the non-lawyer, has come to mean strident judicial intervention that holds the executive to account for its sins of commission and, often, omission. The reach of judicial activism is also believed to extend to filling in spaces of silence where legislatures have not spoken – a belief reinforced by verdicts such as

Vishaka v State of Rajasthan, which set out a law of sexual harassment at the workplace till a law is enacted by Parliament. In this context, it is judicial activism, as it has emerged through PIL that has given the court vibrancy and relevance among social factors beyond the rarefied confines of the legal community. S. P. Sathe argues that judicial review [judicial activism] means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution. ’Surya Deva rightly argues that judicial activism refers to the phenomenon of the court dealing with those issues which they have traditionally not touched or which were not in he contemplation of the founding fathers… It is a state of mind, the origin of which lies in the ‘in activism’ of other two wings of the government.

Justice V. G. Palshikar asserts that judicial activism means “an active interpretation of existing legislation by a judge, made with aview to enhance the utility of legislation for social betterment.”

Whereas Justice J. S.Verma has been more emphatic in laying down the exact norms of sufficient activist criterion. The learned judge has remarked: Judicial activism is required only when there is inertia in others. Proper judicial activism is that which ensures proper functioning of all other organs and the best kind of judicial activism is that which brings about results with the least judicial intervention. If everyone else is working, we don’t have to step in. [It is, no doubt, true that the judge has to interpret the law according to the words used by the legislature. But, as pointed out by Mr. Justice Holmes: “A word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of the judge. The judge is required not only to temper his role to the individual case, but to constantly invent new rules to more justly handle recurrent fact situations that the law has not fully anticipated. It is there that the judge takes part in the process of law-making-what Mr. Justice Holmes called “interstitial legislation.”

HOW FAR JUDICIAL ACTIVISM IS JUSTIFIED?

Of all the institutions established by the Constitution the higher judiciary seems to have acquitted itself in the last 60 years as the best in a relative sense. The most respected public institution in India is the Supreme Court, respected by the elite and the illiterate alike. If the Court has come increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it.

The Court has no army at its command. It does not hold any purse strings. Its strength lies largely in the command it has over the hearts and minds of the public and the manner in which it can influence and mould public opinion. As the distinguished French author Alexis de Tocqueville describes the power wielded by judges is the power of public opinion. Hamilton called the court system the weakest organ of government because it had control over neither the sword nor the purse. A court becomes strong only when it identifies itself with the disadvantaged minorities and they see the court as an independent institution, against oppression and tyranny. A court gains strength only by carving a niche for itself in the minds of the people. A court must appear to the people as their protector. It must not only be, but also must appear to be impartial, principled, and capable of achieving results. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.[119]Judges participating in judicial review of legislative action should be creative and not mechanistic in their interpretations.

Justice Krishna Iyer in the landmark decision of Rajendra Prasad v State of U.P. observed that, When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to S. 302 I.P.C. But if legislative under taking is not in sight, judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to posses the flavor of law-making.

 

“The republic endures and this is the symbol of its faith.”

“EQUAL JUSTICE UNDER LAW”-

These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

The Supreme Court is “distinctly American in concept and function,” as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. “The representative system of government has been adopted in several states of Europe,” he remarked, “but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people.”

The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared.

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

The Constitution limits the Court to dealing with “Cases” and “Controversies.” John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.

The Justices must exercise considerable discretion in deciding which cases to hear, since approximately 7,000-8,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government.

When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

Conclusion

Judicial review is the court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles. The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Judicial review is mainly based in the principle in order to see if the other officials of the govt. are working in the proper manner or not. It is a power given to the court . One should not compare judicial review with that of judicial activism both have different meaning in different sense and situation.

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