Steps towards Judicial Activism (When Judges Legislate)
A number of recent decisions are being believed that the Supreme Court is playing a very active role in making the law. Neither is the clear separation of powers between the three organs of the state nor is the law being preserved. It is notable that in the case of Ram Jawya Vs. Punjab State (1955) , the court had said that “our Constitution does not consider the notion of part or part of the state , which are essentially related to each other.” This implies that there should be a clear separation of powers between the three parts of the state (legislative , executive , judiciary) in the Constitution and one organ should not encroach on another’s territory. If this happens , then reach and chaos spread harm the delicate balance of the Constitution.
What is judicial activism ?
The judiciary plays an active role in maintaining constitutional values and ethics under the constitutional system.
In order to address the civil dilemmas and to fill the gap between the positive and the standard aspects of the laws, the judiciary uses its discretion and creativity to issue justice, resulting in the emergence of judicial activism.
The term ‘judicial activism’ refers to judges’ decision. The judicial review can be defined as a theory, under which the judiciary reviews the functions of the legislature and the executive.
It is notable that the judicial review can be classified into three categories on three basis of review of legislative actions, review of judicial decisions and review of administrative action.
Courts can control both the executive and the legislature by judicial review.
Theory of power dissociation
Under the various provisions, the Constitution has clearly drawn the line between the legislature and the judiciary to maintain their independence in the related methodology.
However, in the Constitution of India, there is no explicit mention of the principle of power separation, but there is a substantial difference in the functions of different organs of the government , in this way one part of the government can not interfere in the functions of the other organ.
Where Article 121 and 211 of the legislature to refuse to discuss the conduct of any judge in the discharge of their duties , on the other hand, Article 122 and 212 stop deciding on the internal proceedings of the legislature to the courts.
Apart from this, Article 105 (2) and 194 (2) legislators of the Indian Constitution protect the freedom of their speech and the interference of the courts in respect of the freedom to vote.
There are many instances where the jurisdiction of the legislature has been encroached by the judiciary. Eg – Arun Gopal Vs. Union of India (2017) , M.C. Mehta versus Union of India ( 2018) , Subhash Kashinath Mahajan v. State of Maharashtra ( 2018) and Rajesh Sharma v . State of Uttar Pradesh ( 2017) etc.
It is notable that the NGT has been ordered that 15- year-old petrol-operated or 10- year-old diesel driven vehicles will not run in Delhi and the Supreme Court has instructed to adopt such vehicles , although neither the NGT nor the Supreme Court is the legislative body. .
Logic in favor of judicial activism
It provides a system of checks and balances in other government branches. Judicial activism is a delicate practice with creativity. It brings necessary innovation in judicial decision-making.
Judicial activism provides the judges the opportunity to use their personal knowledge in cases where the law failed to provide equilibrium.
In addition, judicial activism also provides insights into issues, which is why it establishes quick trust in the established justice system and its decisions.
Many times public power harm people, so the judiciary becomes aware of the misuse of public power.
It is a good option to quickly provide solutions to various issues, where the legislature is caught on the issue of majority.
Logic in opposition to judicial activism
Judges can override any existing law. Therefore, it clearly violates the boundary line prepared by the Constitution.
Judicial opinion of the judges becomes standard for governing other matters. In addition, decisions can be driven by personal or selfish motives which can cause mass damage to the public.
Due to frequent interference of the courts, the belief of people decreases in the quality, integrity and efficiency ofgovernment institutions .
Judicial activism is a pioneer step
When the legislature fails to make the necessary laws according to the changing times and the government agencies fail to fail in executing their administrative tasks honestly, the confidence of citizens in the constitutional values and democracy is eroded.
In such a scenario, the judiciary usually takes steps in the areas set for the legislature and executive, then the results come out in the form of a government by judicial law and judiciary.
If the fundamental rights of the citizens are taken by the government or any other third party, then the judges can work to assist the citizens themselves.
Judicial activism is not supported by the Constitution; This is a product fully prepared by judicial officers. When the judiciary takes action on the boundary line of powers given in the name of judicial activism , then one might say that the judiciary then begins to end the concept of separation of the powers specified in the constitution. Judges are free to make laws according to their options, so that they not only go against the principle of separation of powers , but it can also create uncertainty in law and chaos, because on each basis according to their wishes and fans Will start preparing your law.
Therefore, to maintain a clear balance, judicial discipline should be considered. It is the duty of the legislature to fill the gap between making laws and enacting it and implementing it in a proper manner is the function of the executive. The advantage of this is that the judiciary will have to explain only one work, that is, its work area, resulting in it to maintain consistent balance and constitutional values between all the organs of the government.