Judicial Activism


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Judicial Activism

  1. 1. Judicial Activism Presented by: Bharat Jhalani July 2008
  2. 2. Base <ul><li>The Indian experience with regard to the Executive, Judicative and Legislative instrumentalities over four decades has been one of exploitation darkening into misgiving, misgiving deepening into despair and despair exploding as adventurist violence. </li></ul>
  3. 3. Boilers <ul><li>On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. DMK members formed a human wall to protect him. </li></ul><ul><li>On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen. </li></ul>
  4. 4. <ul><li>The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. </li></ul>
  5. 5. Meaning <ul><li>‘Judicial Activism refers to the phenomenon of the courts dealing with those issues which they have traditionally not touched or which were not in the contemplation of the founding fathers . . . It is a state of mind, the origin of which lies in the ‘inactivism’ of other two wings of the government.’ </li></ul>
  6. 6. Reasons behind public support <ul><li>administration has become apathetic and non-performing </li></ul><ul><li>corruption and criminality are widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. </li></ul>
  7. 7. Contribution of judicial activism <ul><li>The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. </li></ul><ul><li>Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis. </li></ul>
  8. 8. Keshavananda Bharati case (the fundamental rights case) <ul><li>For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. </li></ul>
  9. 9. Jain hawala Case <ul><li>Chief Justice Verma and Justices Bharucha and Sen took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle &quot;Be you ever so high the law is above you.&quot; </li></ul>
  10. 10. Other examples <ul><li>The courts have issued directions in public interest litigation (PIL) covering a wide spectrum such as </li></ul><ul><li>road safety, pollution </li></ul><ul><li>illegal structures in VIP zones </li></ul><ul><li>monkey menace </li></ul><ul><li>dog menace </li></ul><ul><li>unpaid dues by former and serving legislators </li></ul><ul><li>nursery admissions and admissions in institutions of higher learning. </li></ul>
  11. 11. Blessing or Curse <ul><li>Those who claim it as ac curse present following point in support- </li></ul><ul><li>the judicial activism will have a detrimental effect on our democratic order. </li></ul><ul><li>Secondly, they signal the loopholes in our judicial system. They say that the judicial activism is the outcome of the judiciary’s zeal to be in the limelight. </li></ul><ul><li>Thirdly, the critics point out the abuse of PIL. </li></ul>
  12. 12. Blessing or Curse <ul><li>Admirers came up with these points </li></ul><ul><li>Firstly, it has become crystal clear that not only has the judicial activism activated the judiciary but has activated the executive and legislature too. </li></ul><ul><li>No institution has monopoly rights to weaknesses or to making mistakes. Courts may also go wrong, overstep the limits of judicial discretion and restraint and make mistakes. </li></ul><ul><li>Thirdly, the apex Court itself has given cautious guidelines on the abuse of P.I.L. in several cases. </li></ul>
  13. 13. Who’ll judge the judges? <ul><li>Independence of judiciary is a sine qua non for an effective democracy and a fundamental feature of constitution. The Indian Constitution has made elaborate provisions to secure the independence of judiciary. Therefore, it cannot be encroached upon by legislation and even by constitutional amendment. </li></ul>
  14. 14. Who’ll judge the judges? <ul><li>the real source of strength of the judiciary lies in the public confidence in it and the judges have to ensure that this confidence is not lost. It is the fear of groundswell of public opinion that will prevent the democracy from judicial over-stepping. </li></ul>
  15. 15. Conclusion <ul><li>The Supreme Court’s pivotal role in making up for the lethargy of the Legislature and the inefficiency of the Executive is commendable. But the law can be dehumanized, thus the weapon of </li></ul><ul><li>judicial activism must be used carefully. </li></ul>