Judicial activism: It can be defined as a philosophy of judicial decision making where by judges allow their personal views regarding a public policy instead of constitutionalism.
Judicial activism: Positives
- Upholds Constitutional morality: An important case which employed this concept in an innovative manner was the Naz Foundation Case which used the concept of constitutional morality to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality.
- Executive lacks Political gumption: Justice Chandrachud view in the Sabarimala judgment, he held that women should be allowed entry in the Sabarimala temple against popularly held religious beliefs.
- To protect fundamental rights: Triple Talaq in 2017 was banned as being ultra vires to fundamental rights of Muslim women. This legislation would not have been accepted if it had come from the executive or through the Parliament. Ex: Right to privacy also became Fundamental right under Article 21
- Most trusted institution: A People’s Survey of India report noted that Indians had 80% trust in the Supreme court. Though not an elected body, the apex court is significant to uphold rule of law. Ex: Whistle Blowers Act against corrupt officials and politicians was given under Article 142, until Parliament made a law on the subject.
Demerits: Judicial activism
- Unelected body: Judiciary being the unelected body, does not enjoy the “General Will” of the people. Judicial restraint is more apt for such an institution rather than dictation legislation. Ex: Ban on liquor sale on highways led to backlash as well as spurious means to overcome the dictum
- Lack of expertise: Judiciary lacks both time and resources to enact legislation. Sometimes practical difficulties of such enactments are not known to the courts. Ex: Ban on BS-IV vehicles from April 2020 which had to be extended many times.
- Against Constitution’s Mandate: Judicial Review is a basic structure of the Constitution; however enacting legislation is not. Courts can look into the validity of the law, but not necessarily make a law.
- Unaccountable: Politicians remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years.
- Judicial adventurism: Subhash Kashinath Mahajan v. State of Maharashtra (2018): the court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail will be granted to persons accused under the Act.
Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others. Judicial activism must also function within the limits of the judicial process because the courts are the only forum for those wronged by administrative excesses and executive arbitrariness. Hence legislation enacted by Judiciary must be in the rare cases as mentioned above.