JUDICIAL ACTIVISM

Judicial Activism 

Meaning 

Assertion of judiciary and its power is referred to as judicial activism. It is also defined as an over active judiciary.

Public Interest Litigation (PIL) made judicial activism possible in India. Before the court accepts a matter for adjudication, it must be satisfied that the person who approaches it has sufficient interest in the matter. The test is whether the petitioner has locus standi to maintain the action? This is intended to avoid unnecessary litigation. The legal doctrine that no one except the affected person can approach a court for a legal remedy was holding the field both in respect of private and public law adjudications until it was overthrown by the PIL wave.

Complaints about activism have arisen in most countries where courts exercise significant judicial review, particularly within common law  systems (e.g., at the federal levels in Australia, Canada, and India)

Few landmark cases that highlight judicial activism are Keshvanand Bharati Vs.  State of Kerala, Minerva Mills Vs. Union of India etc.

 

Case 1. Keshvanand Bharati Vs.  State of Kerala

 

The Basic structure of the constitution had evolved in this  historic case.The rationale of the court behind this may be two fold. The first is that the court interpreted it on the basis of the legislative intent behind the constitution and the second to protect the rule of law in the country. While the first explanation may still be in compliance with the traditional role of the court, the second would be an extension of the court’s authority. Thus this is the first example of the court extending its powers of interpretation to such an extent that it crosses the line between traditional

 

Case 2. Golaknath v. State of Punjab .

 

The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contended that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

 

Case 3. Olga Telis v/s  Union of India

 

The court said that the outlines of Article 21 which provides right to life also include itself the Right to livelihood as well as shelter.

 

Case 4. Advocate on Record Association v/s Union of India aka  Second Judges Case

Is  an example of Judicial Creativity. The term ‘consultation’ as ‘concurrence’ under Article 124 of the Constitution of India in the cases of appointment of Judges.

 

Case 5. People’s Union for Civil Liberties v. Union of India aka right to privacy case.

 

The Supreme Court held that:“We have, therefore no hesitation in holding that the right to privacy is a part of the right to”life “ and”personal liberty” enshrined under Article 21 of the constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed ‘except according to procedure established by law’”

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