Explaining the concept of judicial activism, discuss why it is important for courts not to take over the functions of the legislature or the executive.

Explaining the concept of judicial activism, discuss why it is important for courts not to take over the functions of the legislature or the executive.

Answer:

Judicial activism refers to the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society. It asserts judiciary’s role in forcing the other two organs of the government (legislature and executive) to discharge their constitutional duties.

The advent of judicial activism has been due to many reasons like legislative vacuum, executive failure to discharge their duties, constitutional articles such as Art. 142, growth of concepts of human rights and social welfare and judicial enthusiasm towards them. But sometimes this enthusiasm turns into adventurism or even overreach, which goes against the Constitutional mandate. So, it is asked of the courts, by the Supreme Court itself, to practice judicial restraint.

Arguments for courts to not take over the functions of the legislature or the executive:

  • It violates the delicate balance of power enshrined in the Constitution i.e. principle of separation of powers where each organ of the state must have respect for others and should not encroach on others’ domain.
  • The justification often given for judicial encroachment on the domain of the executive, or the legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegations can be made against the judiciary too because there are cases pending in courts for half-a-century.
  • Entertaining more litigations only further delays the justice delivery in the country.
  • The regular intervention by judiciary undermines democratic character of Indian polity. This is because judiciary is non-elective in nature and the judges’ appointment in itself is questioned multiple times on grounds of nepotism and bias.
  • It is possible that judges may allow their personal political values and policy agendas to colour their judicial opinions.
  • The judiciary must realise that administrative authorities have expertise in the field of administration.
  • The judiciary lacks the resources required to perform the functions of executive or legislature.

Judicial activism has brought a revolution in terms of welfare of the people such as introduction of due process of law (Maneka Gandhi case), Vishaka guidelines (1997), ban on registration of diesel vehicles in Delhi etc., but there is a very fine line between judicial activism and judicial overreach. It is of utmost importance that the judiciary respects the constitutional boundaries to avoid any adventurism on its part, whilst moving forward with the activism for overall good of society in line with the vision of DPSPs articulated in the Constitution.

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