Exploring The Dynamic Role Of Judiciary - Judicial Activism And Judicial Creativity In Indian Scenario
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EXPLORING THE DYNAMIC ROLE OF JUDICIARY:
JUDICIAL ACTIVISM AND JUDICIAL CREATIVITY IN INDIAN SCENARIO Bidisha Kole, LL.M. (Corporate law), Bankura University, B.A.LL.B. (Calcutta University), West Bengal, India
ABSTRACT
The Indian justice system is vital in safeguarding the rights of citizen and upholding integrity of the legal and constitutional framework. This research examines the nuanced concepts of judicial activism and creativity within the Indian judicial system. Since its inception, judicial activism has been a crucial aspect of the Indian judiciary’s evolution, guided by principles of fairness and justice. Particularly, the Supreme Court has adopted a proactive approach, employing innovative methods to interpret the Constitution dynamically. This shift has been especially notable with the introduction of PIL, where the judiciary actively advocates for marginalized communities.
However, the exercise of judicial activism faces challenges and criticisms, including concerns about overstepping boundaries, encroaching upon the responsibilities of the Legislature and Executive and also the potential for personal biases to influence judgments. Therefore, this study also explores the importance of maintaining a balanced approach, advocating for judicial restraint alongside activism. Recommendations are proposed to improve the functioning of the Indian judicial system, focusing on transparency, accountability. The study emphasizes the role of judicial creativity in addressing contemporary legal complexities, while also cautioning against excessive judicial interference that could undermine judicial stability. Keywords: Judicial Activism, Judicial Creativity, Indian Judiciary, Judicial Restraint, Judicial Overreach.
INTRODUCTION
“Greatness of the Bench lies in Creativity... ” -By Justice P. N. Bhagwati. In democratic nations, the judiciary holds a significant position, tasked with interpreting and safeguarding constitutional provisions. In India, judiciary has a crucial function in safeguarding rights of citizens, alongside legislature and executive branches. While the Supreme Court faces constraints in exercising its power, it occasionally surpasses these limits to address gaps left by other branches and uphold fundamental rights. Advent of judicial activism can be tracked to principles like natural justice and equity. Given society’s evolving understanding of rights and obligations, a proactive judiciary is essential for applying the law effectively to societal needs. Judicial activism entails utilizing judicial power to advocate for the common good and address societal issues.
Despite constitutional limitations, the Supreme Court has demonstrated its commitment to justice, often sidestepping procedural norms to protect rights of vulnerable groups through innovative strategies like epistolary jurisdiction. Through its emphasis on human rights, the Indian judiciary has made significant strides in judicial activism, from advocating for women’s rights in the workplace to promoting sustainable development principles. Embracing concepts like Public Interest Litigation, the judiciary has shifted away from traditional approaches to embrace a dynamic and activist interpretation of the Indian Constitution. Constitutional provisions under Art 321 empower the SC to safeguard citizens’ rights, with judicial rulings accorded the status of binding precedent under Article 1412.
This paper explores judicial activism in India, focusing on the proactive function of the SC in creatively elucidating the Constitution. It examines how judicial activism has evolved over time through constitutional provisions and landmark case laws, highlighting the multidimensional nature of this phenomenon.
1 INDIA CONST. art 32
2 INDIA CONST. art
141 OBJECTIVES
This present study is a humble effort towards this goal with these following objectives: - • To explore evolution of judicial activism since its inception; • To analyse various tools and techniques regarding judicial activism; • To examine importance of judicial activism; • To determine whether judicial restraint is required in the case of judicial overreach; and • To provide some recommendations to this study. MEANING AND DEFINITION OF JUDICIAL ACTIVISM & JUDICIAL CREATIVITY Judicial Activism implies proactive involvement of judiciary in safeguarding citizens’ rights and promoting justice within society. Essentially, it denotes the assertive stance taken by judiciary to compel other branches of govt, namely Executive & Legislature, to fulfil their legal obligations.
Sometimes termed as ‘Judicial Dynamism’, it stands in contrast to ‘Judicial Restraint’, which denotes the self-imposed limitations exercised by the judiciary. In India, both SC and HC possess the authority to assess constitutionality of laws. If laws are in violation of the Constitution, court holds power to declare it unconstitutional. The concept of judicial activism is inherently expansive, lacking a precise definition. As such, there is no statutory definition for judicial activism due to its multifaceted nature. The Black’s Law Dictionary describes judicial activism as “Judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies. ”3 In India, notion of judicial creativity has been implied as judges have delivered judgments in the spirit of the laws and interpreted them in the context of the facts.
The judges are applying their common sense and wisdom, not just the literal meaning of the law. It could be asserted that Judicial Activism entails a judicial ruling that prioritizes safeguarding individual rights or 3 Judicial Activism, https://byjus. com/free-ias-prep/judicial-activism/, Accessed on 9th of June, 2024. advancing a broader political agenda over adhering strictly to legal precedents or past interpretations of the constitution. Judicial activism can be viewed as a form of judicial creativity, representing the apparent authority of judges to alter the trajectory and framework of established legal decisions through thoughtful consideration and adherence to the law. ORIGIN OF JUDICIAL ACTIVISM Ø Origin of Judicial Activism within United States: The phrase “judicial activism” first emerged & introduced by Arthur Schlesinger Jr.
in his work titled “The Supreme Court: 1947,” which was printed in Fortune magazine in 1947. 4 Concept of judicial activism originated during process of judicial review in the United Kingdom. The British Constitution, characterized by its unwritten nature, provides a framework conducive to judicial activism. The principle of judicial review first articulated in 1610 by Justice Edward Coke in Thomas Bonham v. College of Physicians5 case. The initial landmark case that brought the concept of judicial review into prominence was Madbury v. Madison6, in this case, the US Apex Court explicitly struck down specific provisions of the Judiciary Act of 1801, marking the first instance in American history where a court declared legislation unconstitutional. This pivotal ruling established the precedent that federal courts possess the authority to strike down unconstitutional laws.
Consequently, judicial review gained prominence in US. Ø Evolution of judicial activism within India: Activism of Judiciary has gained widespread acceptance in India and has garnered significant legitimacy among the Indian public. However, its emergence was not spontaneous but rather a response to prevailing circumstances. Pinpointing the exact origins of judicial activism in India proves challenging. Given that the judiciary was established as an independent branch of govt, under the Government of India Act, 1935 and later under the Const. of India, it is logical to focus on developments post 1935. Following the enactment of laws by Parliament, particularly those addressing novel situations, judges exhibited creativity and innovation in filling gaps
4 Nitu Mittal And Tarang Aggarwa, Judicial activism in India, (7th June, 2024, 7:23 pm)
http://docs.manupatra.in/newsline/articles/Upload/3D22F96F-B1FF-4D03-B90E-B0B2690BD83E.1g__constitution.pdf.
5 Thomas Bonham v. College of Physicians, 1610
6 Madbury v. Madison, 1803
within the legislation. This period witnessed judges leveraging their creativity not only to address legislative gaps but also to navigate areas untouched by legislation. 7 The origins of judicial activism developed in India in 1893, marked by an Opposing decision from Justice Mehmood, Allahabad High Court. This judgment laid the groundwork for activism within the Indian judiciary, offering a fresh perspective on the concept. The case in question involved an undertrial unable to afford legal representation. Justice Mehmood argued that the requirement for a case to be “heard” would only be fulfilled when someone speaks on behalf of the undertrial. Moreover, the notion of judicial activism in India gained significant traction in the late 1960s or early 1970s. 8 The development of judicial activism in India can be categorized into three main phases: i.
Classical Judiciary (1950-1970): In the era of the classical judiciary, there was a notable absence of activism. While under the dominance of British courts, the Supreme Court operated primarily as a technocratic institution. However, over time, it transitioned towards adopting an activist stance. a. First landmark Decision: A. K. Gopalan v. the State of Madras9, where a writ was filed to assess the legality of detention without trial, questioning its compliance with fundamental rights enshrined within Article 14, 19, 21, and 22. The SC asserted that the written Constitution provides the basis for judicial review. Although the challenge ultimately failed, it marked the beginning of a new legal trend that became evident in subsequent years. b. Freedom of press: In Sakal Newspapers Pvt. Ltd. v.
UOI10, where the government aimed to regulate newspaper pricing based on the number of pages, as per the Newspaper Act of 1956 and a subsequent order in 1960, the SC has made a landmark judgement. It declared that newspapers should not be subjected to the same regulations as other commercial entities, highlighting their crucial role
7 Dr. G.P. Tripathi & G.G. Padmakar Tripathi, Judicial Process, 97 (Central Law Publications 2021)
8 Judicial activism, https://blog.ipleaders.in/judicial-activism/, Accessed on 9th of June, 2024.
9 A.K. Gopalan v. the State of Madras, AIR 1950 SC 27
10 Sakal Newspapers Pvt. Ltd. v. Union of India, AIR 1962 SC 305
as platforms for the communication of information & ideas. This decision significantly extended the protections afforded freedom of speech under Article 19(1)(a) of Indian Constitution11. c. Reservation policy: In Balaji v. State of Mysore12, the SC concluded, economic underdevelopment was an underlying factor behind social inequality. In its judgment, court delineated an evident distinction between caste & class. , emphasizing that backwardness should not be determined exclusively by caste. Furthermore, it was established that reservations for specific categories should not surpass 50% of the total. The Court underscored the significance of upholding Article 14, as well as the provisions outlined in Articles 15 and 16. ii. Establishment of Judicial Activism (1970-2000): During this era, the judiciary and judges introduced and popularized the concept of judicial activism. d.
Prospective overruling Doctrine: The concept of prospective overruling originated in American legal system. It states that a decision made in one case will only affect future cases and will not apply retroactively to previous rulings. In Golaknath v. State of Punjab13, The Apex Court of India introduced concept of “prospective overruling” during its examination of the constitutional validity of 17th Amendment within Constitution. It was concluded that Parliament lacked the authority to amend Part III of the Constitution or restrict any fundamental rights. e. Doctrine of basic structure: In Keshavananda Bharti v. State of Kerala14, the SC delivered a landmark decision that is considered pivotal in Indian constitutional jurisprudence. In examining extent of amending authority conferred by Article 368 of Constitution, SC formulated concept of “basic structure”.
In a majority ruling of 7:6 by a bench comprising 13 judges, it was held that while Parliament
11 INDIA CONST. art 19(1)(a)
12 Balaji v. State of Mysore, A.I.R 1963 S.C 649
13 Golaknath v. State of Punjab, AIR 1967, SC 1643
14 Keshavananda Bharti v. State of Kerala, Writ Petition (Civil) 135 of 1970
holds significant powers to amend the Constitution, such amendments must not undermine or dismantle its fundamental structure or framework. Subsequent to the Keshavananda Bharati verdict, the Supreme Court nullified several Constitutional Amendments, subjecting them to scrutiny under the basic structure doctrine. In Indira Nehru Gandhi v. Raj Narain15, Court declared 39th Amendment as unconstitutional. In Minerva Mills v. Union of India16 , SC dismissed government's endeavour to overturn Kesavananda Bharati ruling and acquire unchecked authority to amend Constitution as it desired. Consequently, Court affirmed that judicial review constitutes a fundamental aspect of legal system & that Parliament is not authorized to expand the scope of its previously delimited powers. f. Habeas corpus case: In ADM Jabalpur v.
Shivkant Shukla17, mention of Article 21 sparked the most contentious SC ruling concerning judicial activism. The predominance was that a person’s right to life cannot be enforced by a HC under Article 226 of Indian Constitution during a National Emergency. iii. Advent of Judicial Restraint (2000-till now): Judicial activism has thrived and impacted diverse facets, yet it has also been marred by instances of judicial overreach. 18 NEED OF JUDICIAL ACTIVISM AND CREATIVITY It is widely acknowledged that maintaining separation of powers among all three Units is essential. Nevertheless, in today's society, the judiciary is significant in ensuring justice due to nature and structure of contemporary society. Judicial activism has primarily resulted from:
1. Executive and legislatures’ failure to adequately protect people's rights has spurred
judicial activism.
2. Violations of primary human rights have fuelled judicial activism & innovation.
3. Moral pressure on the judiciary to intervene for the benefit of the populace.
4. The increased significance of judicial activism caused by improper use and exploitation
of certain constitutional provisions by other branches of government.
5. Judicial activism acquired prominence in bridging legislative voids.19
JUDICIAL CREATIVITY AND PRECEDENT Ø Stare Decisis & Ratio Decidendi: Stare Decisis, a Latin term, denotes the principle of “standing by decided cases” to uphold precedent and maintain consistency in legal rulings. Its aim is to establish consistency and certainty in implementation of law, rooted in public policy. Although SC of India is not strictly regulated by its own prior judgement, it retains the authority to overrule them, either prospectively or retrospectively. Case law serves as a valuable source of knowledge, offering a foundation for arguments, elucidating legal implications, and at times, filling gaps left by legislatures. The “ratio decidendi”, or the reasoning behind a precedent's decision, is the part of the judgment that establishes its legal significance. It is this rationale that distinguishes a case and grants it recognition as law.
Two prevalent theories of judicial behaviour observed among judges are: - the judicial process and finds support from scholars such as Savigny, Maine, and Montesquieu. b. Constitutive Theory: According to this perspective, a judge does not hold the role of a legislator and is incapable of doing so. It asserts that laws are exclusively crafted by legislative bodies. Hale said, “Judges only declare what law is, they do not make it, but uphold rule of law, they develop law in doing so, they make law”. 20 Ø Precedents: Precedent has been key in upholding principles such as creativity, stability, and uniformity, thereby lending a sense of reasonableness and legitimacy to the law. Calls for judicial creativity within the precedent system persisted, with Mansfield emphasizing that the essence of a case, rather than the strict adherence to specific precedents, shapes the law.
The process of judges shaping the law may not be flawless due to their individual perspectives, attitudes, and subconscious human traits such as preferences, biases, instincts, habits, and convictions. Consequently, it becomes imperative to subject judicial creativity to continual scrutiny, review, and adjustment. TOOLS & TECHNIQUES OF JUDICIAL ACTIVISM & CREATIVITY: NEW DIMENSIONS OF SUPREME COURT DECISIONS A. Addressing the court by telegram, postcards, or letters and requesting that they be considered as writ petitions: In Sunil Batra Vs. Delhi Administration21, the SC acknowledged a correspondence received from Sunil Batra, a prisoner at Tihar Jail in Delhi. In the letter, Batra expressed concerns about the alleged inhumane treatment inflicted upon another inmate serving a life sentence in the same facility by a jail warden.
Considering this letter as a writ petition, the Court delivered a comprehensive judgment. It granted the petition and issued various directives, including one instructing Ministry of Home Affairs and all State Governments
20 Infra
21 Sunil Batra Vs. Delhi Administration, (1978) 4 SCC 409
to take appropriate measures against the accountable official. The Court justified its actions by emphasizing the broad significance of justice within prisons, thereby expanding the application of habeas corpus. This expansion allowed prisoners not only to seek liberty but also to enforce their constitutional rights even while incarcerated. B. Suo-Motu Actions: In certain matters the Suo motu actions have been taken by the judges such as an article published in the newspaper, etc. In environment law the famous case i. e. , Chilka Lake in Orissa22. An article relating to pollution of Chilka lake was published in a magazine which came to notice of a SC judge, who ordered to file the same as writ petition and issued directions to state government of Orissa to take precautionary steps to preserve and protect the world-famous lake from industrial pollution. C. Monetary Compensation: a.
In Rudal Shah Vs. State of Bihar23, Rudal Shah was arrested in 1953 on a murder charge and was acquitted in 1968. Despite his acquittal, he remained incarcerated until
1982. The prison authorities claimed he was insane, yet they failed to provide evidence
of how this determination was made or what steps were taken for his treatment. This case clearly demonstrated illegal imprisonment due to negligence and indifference. The court not only released him but also ordered the state to compensate him with Rs. 30,000/- for his wrongful detention. b. In Chandrima Das vs. State of West Bengal24, SC granted the compensation of Rs. 10 lakhs to a rape victim on whom rape was committed by the railway officials in Railway Station Passenger’s Waiting Room. D. Public Interest Litigation (PIL): In India, concept of Public Interest Litigation (PIL) emerged due to proactive stance taken by the SC, known as Judicial Activism. It was first introduced in 1980s during the Fertilizer Corporation Kamgar Union case. Justices V.R. Krishna Iyer & P.N. Bhagwati were
22 Chilka Lake in Orissa, AIR 1994 Orissa 191
23 Rudal Shah Vs. State of Bihar, AIR 1983 SCC 141
24Chandrima Das vs. State of West Bengal, AIR 2000 SCC 465 instrumental in pioneering the PIL concept. PIL is also referred to as Social Interest Litigation. The Supreme Court has defined the PIL as “a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. ” Simply, PIL allows any concerned citizen to petition the court on behalf of the public good. This can be done by filing a petition in either SC under Article 32 of the Constitution, in the HC under Article 226 of the Constitution.
25 Phases of Public Interest Litigation: Evolution of PIL can be divided in following manner: • First Phase: During the initial phase, spanning from late 1970s through 1980s, PIL cases were typically initiated by individuals driven by a sense of public service, including lawyers, journalists, social activists, and academics. Many of these cases centred on advocating for the rights of marginalized groups within society, such as prisoners, bonded laborers, child laborers, individuals with mental challenges, pavement dwellers, and women. The objective of these cases was to seek redress for actions or inactions by executive agencies. In Hussainara Khatoon v. State of Bihar26, in response to newspaper reports detailing the plight of undertrials in prison, a petition initiated with the SC. Some of the accused had already spent more time incarcerated than warranted for their alleged offenses.
Due to a backlog in the judicial system, these cases had been pending for years, and the defendants were unable to secure bail due to financial constraints. The petition, treated as a writ, was granted approval. Justice Bhagwati and the other bench judges mandated the release of those 25 Pritam Kumar Ghosh, “Judicial Activism and Public Interest Litigation in India”, Vol. 1, No. 1Galgotias Journal of Legal Studies, p. 77, 2013.
26 Hussainara Khatoon v. State of Bihar, 1979 AIR 1369
unable to meet bail requirements on personal bonds. They argued that right to a speedy trial was fundamental entitlement that should not be curtailed due to financial limitations. • Second Phase: During the 1980s, the second phase of Public Interest Litigation (PIL) witnessed significant developments. In this stage the filing of PIL cases became more structured as numerous non-governmental organizations & legal professionals began presenting matters of public concern to the courts with increased frequency.
Moreover, the scope of issues addressed in PIL broadened substantially, encompassing topics ranging from environmental protection to promoting corruption-free governance, ensuring the right to education, addressing workplace sexual harassment, facilitating industrial relocation, upholding the rule of law, advocating for good governance, & promoting governmental accountability in general. During this phase, petitioners pursued relief not only against executive actions or inactions but also against private individuals concerning policy issues and matters typically within the legislative domain. In contrast to the first phase, the judiciary's response during this period was notably more daring and unconventional. For example, courts readily formulated detailed guidelines in areas where legislative provisions were lacking. In the Municipal Council, Ratlam v.
Vardichand27, the court granted approval to a writ petition filed by a collective of citizens requesting directives regarding the local municipal council for the elimination of open drains. In the case of M. C. Mehta v. Union of India28 the SC of India has acknowledged a petition addressing the protection of individuals reliant on the Ganges River's waters as a matter related to public interest. Consequently, the court has issued directives to regional authorities, compelling them to undertake necessary measures to mitigate pollution in the Ganges River. • Third Phase: Conversely, third phase, which commenced in 21st century, signifies a period wherein Public Interest Litigation could be initiated for a myriad of reasons. This era witnesses an
27 Municipal Council, Ratlam v. Vardichand, 1980 AIR 1622
28 M.C. Mehta v. Union of India, AIR 1987 SC 1086
extensive range of issues being brought forth for PIL, ranging from recalling the Indian cricket team during their tour in Australia to halting an actress's purported marriage to trees for astrological purposes. From a judicial standpoint, it may be contended that this juncture calls for introspection within the judiciary, prompting a re-evaluation of the intended objectives of PIL. 29 REVOLUTIONARY FUNCTION OF SUPREME COURT REGARDING ASPECTS OF JUDICIAL ACTIVISM AND CREATIVITY: NEW DIMENSIONS A. Fundamental Rights and Judicial Activism: The reformative role of SC in Protecting and creating rights of citizens of India can be discussed in the following manner. § Right to Life and Personal Liberty: In Maneka Gandhi vs.
Union of India30, this ruling by the Supreme Court has stirred the Indian judiciary from a prolonged state of inactivity concerning right to life and individual freedom safeguarded by Article 21 of Indian Constitution. § Right to Die: In P. Rathinam v. UOI31, Court was posed with question of whether right to die falls within scope of right to life. Majority of the Bench concluded that it does, leading to invalidation & declaration of Section 309 of Indian Penal Code32 as unconstitutional. This was overruled in Gian Kaur v. State of Punjab33, Court decided that although Article 21 encompasses right to die with dignity, right to life does not encompass right to die, and suicide remains punishable under Indian law. § Right to Privacy: Recognition of right to privacy as key aspect of right to life and personal liberty is now firmly established.
The preservation of an individual’s private domain is affirmed by the
29 Supra Note 25 p. 88
30 Maneka Gandhi vs. Union of India, AIR 1978 SC 597
31 P. Rathinam v. Union of India, 1994 AIR 1844
32 The Indian Penal Code, ACT NO. 45 OF 1860 (India)
33 Gian Kaur v. State of Punjab, 1996 AIR 946
judgment in Justice K. S. Puttaswamy (Retd. ) v. Union of India. 34 case. § Right to choose life partner: In Shakti Vahini v. Union of India35 SC determined that freedom to select one’s life partner is a fundamental right safeguarded by Article 21. Furthermore, it directed government to implement all necessary measures to curb honour killings and associated offenses. § Right to Livelihood: In Olga Tellis v. Bombay Municipal Corporation36, Court intervened to aid pavement dwellers in Bombay by emphasizing that right to life carries along with it right to a livelihood as well. § Right to live with Human Dignity: SC in Peoples Union for Democratic Rights v.
Union of India37, concluded that failure to pay minimum wages to workers engaged in various ASIAD Projects in Delhi constituted a deprivation of their right to live with basic human dignity and contravened Article 21 of Indian Constitution. § Right to Education: In case of Unni Krishnan & Others Vs. State of AP38, learned Court upheld that every child has right to receive free education until they reach the age of 14 years. § Creation of Voter’s Right to Know: SC in People’s Union for Civil Liberties v. Union of India39, determined that the electorate's entitlement to be informed about the background of candidates contesting elections under domain of the Freedom of Speech and Expression safeguarded by Article 19(1)(a).
34 K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
35 Shakti Vahini v. Union of India, (2018) 7 SCC 192
36 Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180
37 Peoples Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
38 Unni Krishnan & Others Vs. State of AP, AIR 1993 SC 217
39 People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568
§ Right to clean Environment: In Milkman Colony Vikas Samiti v. State of Rajasthan40, SC affirmed that right to life encompasses right to a clean environment, which plays a crucial role in fostering a healthy body and mind. § Right to Health: In Arjun Gopal & others v. Union of India and others41, SC asserted that individuals cannot be allowed to violate right to health of others, as guaranteed by Article 21, in the name of celebration. § Right to Euthanasia: In Aruna Ramchandra Shanbaug v UOI42, SC has made legal passive euthanasia & specified that it will stay effective until Parliament enacts pertinent legislation on the matter.
Drawing upon foreign rulings, SC affirmed that Article 226 grants ample authority to High Courts to issue appropriate orders upon applications submitted by close relatives, next of kin, or medical personnel seeking authorization to discontinue life support for a patient in a persistent vegetative state who is unable to provide consent. § Right to free legal aid: In M. H. Hoskot v. State of Maharashtra43, SC emphasized importance of free legal assistance as an essential component of fair procedure. It stated that provision of free legal aid is responsibility of govt & is an inherent aspect of Article 21, maintaining fairness & reasonableness; thus, it should not be viewed as government charity. § Right to Health & Medical Assistance: In Parmananda Katara v. UOI44, SC has explicitly stated that preserving life is of utmost significance.
The Apex Court emphasized that all doctors, whether working in government
40 Milkman Colony Vikas Samiti v. State of Rajasthan, Appeal (civil) 246 of 2007
41 Arjun Gopal and others v. Union of India and other, 2017 SCC 280
42 Aruna Ramchandra Shanbaug v Union of India, AIR 2011 SCC 454
43 M.H. Hoskot v. State of Maharashtra, AIR 1978 SCC 1548
44 Parmananda Katara v. Union of India, 1989 AIR 2039
or private sectors, have a professional duty to provide immediate medical assistance to the affected to preserve life, without waiting for legal formalities or police compliance. B. Women empowerment and Judicial activism: Judicial activism goes beyond the mentioned aspects and extends into the realm of women's empowerment as well. The judiciary is very significant & active in preventing the exploitation of women in workplace and enhancing their conditions, marking significant progress in this regard. § Equality of women at Work Place: This was also made clear in Air India v. Nargesh Meerza45, SC declared that the regulation mandating an air hostess to exit the workforce after her initial pregnancy was void, unconstitutional, and infringed upon Article 14 of Indian Constitution. § Right to maintenance of Muslim Women: In Mohd. Ahmed Khan v.
Shah Bano Begum and Others46, the Supreme Court overturned Muslim Law and extended the Iddat period from four months and ten days to ensure justice for Shah Bano Begum. § Protection of women at work place: In Vishakha v. State of Rajasthan47, Under Article 32, in conjunction with Articles 141 and 142, the Supreme Court established guidelines for preventing sexual harassment cases. These guidelines, introduced in 1997, have been superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013. § Prevention of Acid Attack: In the Laxmi v. Union of India48 in 2006, Laxmi, who was a victim of an acid attack, petitioned for legislation to control sale of acid & provide compensation for victims. In
45 Air India v. Nargesh Meerza, AIR 1981 SC 1829
46 Mohd. Ahmed Khan v. Shah Bano Begum and Others, 1985 AIR 945
47 Vishakha v. State of Rajasthan, 1997 SCC 241
48 Laxmi v. Union of India, 2014 4 SCC 427
2013, SC imposed strict limitations on acid sales in response to the escalating number of cases involving attacks on women using acid. § Admission of Women in Army: The recent affirmation by a Supreme Court Bench in the case of Defense Secretary v. Babita Puniya and Others49 upheld the Delhi High Court's ruling to commission women into the Army on a permanent basis. The Supreme Court has declared that it is unreasonable to exclude women from command positions solely based on their physical characteristics and domestic responsibilities. Additionally, the Court has stated that the complete exclusion of women is illegal and contravenes Article 14 of the Constitution. C. Decriminalization of Adultery: In Joseph Shine V. Union of India50, The Court has invalidated Section 497 of the Indian Penal Code, 1860 (IPC), effectively decriminalizing adultery. D. Triple Talak Case: In Shayara Banu V.
Union of India51, A Constitution Bench comprising five judges ruled 3:2 that practice of instantaneous Triple Talaq is unconstitutional. The Supreme Court further instructed the Central Government to enact legislation on the matter. Subsequently, Muslim Woman (Protection of Rights on Marriage) Act, 2019 was passed, showcasing the constructive impact of SC’s judicial activism. E. Decriminalization of Section 377 of IPC: In Navtej Singh Johar vs. Union of India52 the Supreme Court sanctioned consensual relationships within the LGBT community, marking a significant milestone in its jurisprudence. Additionally, the Court emphasized that the decision of LGBT individuals to be in same-sex relationships is a matter of personal choice, affirming their equal entitlement to the protection of their Fundamental Rights.
49 Defense Secretary v. Babita Puniya and Others, 2020
50 Joseph Shine V. Union of India, 2018 SCC 1676
51 Shayara Banu V. Union of India, 2017 SCC 1
52 Navtej Singh Johar vs. Union of India, 2018 SCC 1
JUDICIAL ACTIVISM & JUDICIAL RESTRAINT Judicial restraint represents a guiding principle in judicial interpretation. It advocates for judges to restrain from imposing their personal preferences or perspectives on decisions or proceedings, instead adhering to constitutional and statutory guidelines. This theory suggests that judges should exercise caution in invalidating laws unless they are found to be unconstitutional. In State of Rajasthan vs Union of India53, Court opted not to intervene in matter, citing it as a political inquiry and thus upholding the principle of judicial restraint. Judicial activism and judicial restraint serve distinct purposes. Judicial restraint aims to maintain the equilibrium of power among the three organs of government: the judiciary, executive & legislative.
In a specific instance, the judges and the court recommended reevaluation of an existing law rather than its alteration. On the other hand, judicial activism plays a vital function in shaping social policies concerning issues such as safeguarding individual rights, civil liberties, public morality, and addressing political injustices. For effective governance, judicial activism must be tempered with judicial restraint to ensure that the judiciary collaborates and maintains harmony with other branches of government, rather than circumventing their authority. 54 SUGGESTIONS Following are some recommendations for the better working of the Judicial System in India: - d. A separate Judicial Service Act should be developed and enforced. e. Judges must carry out their duties impartially, without being influenced by improper factors, and without causing undue delays, expenses, or corruption. f.
Access to judicial information and court rulings should be readily available to the public. g. The process of appointing judges should be transparent. h. Court decisions should be enforced equitably and efficiently. i. Judges must be held accountable and demonstrate responsibility in their roles.
CONCLUSION
Judicial activism empowers judges to render decisions in support of progressive social policies, facilitating social engineering. By adhering to constitutional constraints, judicial activism in a modern democratic framework serves as a check on legislative overreach and executive abuse of power. Furthermore, it contributes to the safeguarding and amplification of individual rights. However, when judges exhibit excessive enthusiasm, they risk overstepping boundaries, disrupting the traditional functioning of the judiciary. Thus, it becomes imperative to distinguish between judicial activism and judicial overreach, as the latter poses a threat to judicial stability. In ensuring the nation's peace, prosperity, and rule of law, the government must operate efficiently and smoothly.
Holding the judiciary solely responsible for rectifying governmental missteps and errors places an undue burden on its shoulders. It's evident that the Constitution doesn't designate the judiciary as a substitute for the legislature or executive in case of their failure. Rather, each branch must exercise its limited activism while being subject to oversight and restraint. Given the complexity of contemporary cases, the Indian judicial system necessitates judges to employ creativity and personal interpretation.