Judicial activism requires reconsideration, as it entails not only unpredictability in the law but also violates the principle of separation of powers. Analyse.

Q. Judicial activism requires reconsideration, as it entails not only unpredictability in the law but also violates the principle of separation of powers. Analyse.

Ans. Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law. Judicial Innovations like introduction of PIL, due process of law, the doctrine of pith and substance or over use of provisions like Special Leave Petition under 136, Article 142 for complete justice are manifestation of judicial activism.

WHY IT REQUIRES RECONSIDERATION

1. Unpredictability in laws

• It leads to unpredictability in laws made by the Parliament. Example: In M.C. Mehta v. Union of India (2018), the court annulled the statutory Rule 115(21) of the Central Motor Vehicle Rules, 1989, and directed that only BS-VI vehicles can be sold and not BS-IV vehicles should be sold after March, 2020. This unpredictability created trouble for the industries as they needed time to recalibrate the vehicles for BS VI fuels and public in general because of increase in cost of vehicles.
• Also unpredictability in rulings of the judiciary itself. Example: Delhi high Court decision of reading down provisions related to section 377 of IPC was overruled by the Supreme Court.

2.   Violation of principle of Separation of Power:

• Law making is the job of the Legislature and dispensing justice is the role of the Judiciary but with judiciary making rules violates this separation of power. Example: Vishakha Guidelines for prevention of sexual harassment at workplace and Prakash Singh judgement for police reforms.
• Between Executive and Judiciary: Judiciary giving executive orders violate this separation of power. Example: Fixing timings for bursting Diwali fireworks and prohibition on use of non-green fireworks. Also, case of liquor ban within 500m of national highways without taking into account the socio-economic consequences of such orders.
• Judicial activism through PIL (Public Interest Litigation) losing its original direction and constituency due to judicial overreach.
• Unlimited powers enjoyed by the judiciary in the name of doing complete justice under Article 142 go against the principle of Constitutionalism which abhors absolutism.

OTHERS

1. Activism tends to replace jurisprudence of principle with jurisprudence of predilection. Example: Mandatory playing of the National Anthem in Cinema Halls shows personal preference of judge in delivery judgement.
2. Judicial overreach, judicial adventurism, or despotism of an oligarchy is seen as antithetical to democracy as there exists a very fine line between Judicial activism and judicial overreach.
3. Many a time it may lead to violation of fundamental rights. Example: As noted by dissenting judge in Sabarimala case that allowing women to enter temple violate fundamental right to religious practice under Article 25 and 26 of the Constitution.

POSITIVE ROLE

Though there are several lacunas existing with the judicial activism, there has been very positive role played by judiciary through its activism:

1. Protecting the core of constitution from executive adventurism. Example: In Kesavananda Bharati case (1973) Supreme Court ruled that parliament can’t alter the basic structure of the constitution.
2. By going beyond written provisions of Constitution SC have emerged as true protector of fundamental right and guardian of Constitution. Example: Maneka Gandhi vs. Union of India Case (1978) when Supreme Court introduced the “due process of law” which lead to widening of scope of Part III in general and Article 21 in particular.
3. Transformative social reforms through activism. Example: Declaring section 377 of IPC as unconstitutional, banning instant Triple talaq and decriminalisation of adultery (section 497).
4. Filled the vacuum created due to inaction of other organs of state. Example: Introduction of CNG in Delhi to curb air pollution.
5. It has made the Constitution an ever evolving document to cater to new emerging challenges of society. Example: Declaration of Right to Privacy as a fundamental right in Justice K. S. Puttaswamy vs. Union of India, 2018 case.

Although in India there is no water tight separation of powers between the Judiciary and other organs of state. But, this does not mean that Judiciary can go ahead with unbridled powers, it has to walk a tightrope with self-restraint and caution so that judicial activism should not lead to judicial overreach. On the other hand, other organs should also work harmoniously with the judiciary for the larger public welfare so that minimum judicial interference is required.