Concept of Judicial Activism – a comprehensive study

In this article we have discussed about the concept of Judicial activism

 

A. INTRODUCTION

 

In 21st century all are witnessing a huge shift in the global balance of power. As the mastery of the west degression, the world is looking after the emerging powers of the new world order, like India. India gets corner view in the world face due to its successful nourishment of democracy and its tremendous economic growth, notwithstanding its cancerous corruption and unstable infrastructure. The journey from being rolled by British emperor for a long period to an independent sovereign country has not been easy for India. There are three branches of the government in India such legislative, executive and judiciary.

 

In 1922, Gandhiji said swaraj would not be the gift of the British Parliament, but must emergence from ‘the wishes of the people of India as expressed through their freely chosen representatives.’ He had expressed that Indians must shape their own destiny, that only in the hands of Indians could India become herself. Twenty- four years later these words were repeated during the opening session of the Constituent Assembly: they were, some said, the Assembly’s origin; all agreed that they were its justification.

 

The Constituent Assembly, brought into being by the will of the Indian people and, in the last scene of the last act, with the help of the British, drafted a constitution for India and it was adopted in 26^th January 1949 and come into force in the year 26^th January 1950. In the Constituent Assembly Indians were, for the first time in a century and a half, responsible for their own governance. They were, at last, free to shape their own destiny, to pursue their long-proclaimed aims and aspirations, and to create the national institutions that would facilitate the fulfilment of these aims.

 

In the words of B.R. Ambedkar-

 

‘By independence we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves.’

 

Jawaharlal Nehru believed, ‘This cannot be done by the wisest of lawyers sitting together in conclave; it cannot be done by small committees trying to balance interests and calling that constitution-making; it can never be done effectively when the political and psychological conditions are present, and the urge and sanctions come from the masses.’

 

There are three branches of the government in India such legislative, executive and judiciary.

 

The role of a judge and executive has been clearly stated even during the Vedic period:

“Rajno hi raksadhi krtah parasvadayinah sathah

Bhtya bhavanti prayena tebhyo reksedimah prajah”

 

Thus, meaning the king should give the charge of the protection of the subjects to such officers who are virtuous, well tried, qualified and from respectable families.

 

The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name "judicial activism".

 

The expression ‘Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws.

 

Under the Constitution of India, the three branches of the government, namely the Legislative, Executive and the Judiciary, have been assigned their own separate roles. It is when the Judiciary steps into the shoes of the Executive or the Legislature and embarks on the work of law making rather than interpreting laws, it can be deemed to be judicial activism.

 

Black’s Law Dictionary explains very well:

 

“Judicial activism is judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of the appellate judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters.”

 

Before the twentieth century, legal scholars squared off over the concept of judicial legislation, that is, judges making positive law. Where Blackstone favoured judicial legislation as the strongest characteristic of the common law, Bentham regarded this as a usurpation of the legislative function and a charade or miserable sophistry. John Austin, rejected Bentham's view and defended a form of judicial legislation in his famous lectures on jurisprudence.

 

Judicial activism is an upgraded form of judicial review. Judicial review means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution. The practice of judicial review of legislation was extended by Britain to colonies like India.

 

Later, when India got independence, this debate continued in the Constituent Assembly also. The debates show that the makers of the Constitution wanted a limited judicial review. Most of them were admirers of the Westminster model of democracy and wanted the courts in India to interpret the Constitution so as to cause minimum interference with the legislature. In their opinion, a single integrated judiciary, along with a uniform system of laws was essential to maintain the unity of the country. Apart from being the conscience-keeper of the Constitution and the protector of fundamental rights of the people, the framers wished to equip the judiciary with powers which would enable it to keep the charter of Government current with the times and not allow it to become archaic or out of tune with the needs of the day. While the provisions relating to the judiciary were being drafted, there was general agreement on the issue that if independent India were to achieve a social revolution, the judiciary would have a vital role to perform and would therefore have to be well equipped for the purpose.

 

According to Justice V.G. Palishikar, judicial activism can be defined as the process of law-making by judges. It means an active interpretation of existing legislation by a Judge, made with a view to enhance the utility of that legislation for social betterment. Judicial activism is different from judicial pessimism which means interpretation of existing provisions of law, without an attempt to enhance its beneficial aspects by so interpreting the existing law to advance and progress the beneficial extent of that legislation.

 

Judicial institutions have a sacrosanct role to play in a constitutional democracy like India. Under Article 32 a person can approach the Supreme Court for violation of any of his fundamental rights as Article 13(2) also states that if a law passed by the state affects a fundamental right, it may be declared null and void by the Supreme Court. The High Courts are empowered with wider jurisdiction to entertain any petition not only for the enforcement of fundamental rights alone but also for any other purpose. The Supreme Court can also decide whether Parliament or State Legislature has made any law beyond its allotted powers. Even Parliament can enlarge jurisdiction and powers of the Supreme Court with respect to any matters in the Union List by enacting law to this effect and also through law give it power to use it writ jurisdiction under clause (2) of Article 32 for any other purpose. Further, power is vested in the Supreme Court to pass such decree or order as is need for doing justice in any case or matter pending before it. This provision containing inherent powers of the court contains no limitation regarding the case or circumstances which necessitates the court to exercise its power nor does it lay down any conditions to be satisfied before such power is exercised. But the courts itself through various judgments have said that Article 142 could not be used to build a new edifice where none existed earlier so to achieve something indirectly, which could not be achieved directly.

 

One of the essential features of the democratic republic established by the Indian Constitution is division of power between the three important wings of the State. The three wings are expected to operate in their respective fields so that democratic governments, both at the Centre and the States can function to fulfil the noble objectives enshrined in the preamble to the Constitution. As early as in 1951. In re Delhi Laws case (1951) the Supreme Court noted that though there are no specific provisions in the Constitution vesting legislative powers exclusively in the legislature and the judicial power in the judiciary, the essence of the doctrine of separation of powers was implicit in the constitutional scheme. Later in Indira Gandhi case in 1975 "separation of powers" was treated as a part of the basic structure of the Constitution.

 

In the early years, the Supreme Court interpreted the role of the Judiciary merely as determining in accordance with narrow procedural rules. In A.K. Gopalan v. State of Madras, the Supreme Court remarked, “In India the position of the Judiciary is somewhere in between the Courts in England and the United States. But our Constitution, Unlike the American Constitution, does not recognize the absolute Supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our parliament and the State Legislature are Supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.” This perception changed by the time of Golak Nath case (1957), where the Supreme Court declared that fundamental rights could not be derogated from even by an amendment to the Constitution. Six years later, in Kesavananda Bharati case (1973), while overruling Golak Nath case, the court evolved another far-reaching doctrine under which Parliament was denied the power to amend the Constitution in a manner that violated its ‘basic structure’. The Supreme Court could not deny judicial review even by a constitutional amendment.

 

B. THEORIES OF JUDICIAL PASSIVISM AND ACTIVISM:

 

Judicial passivism and judicial activism are contending and opposite theories of judicial attitude towards the construction of statutes and there are arguments galore for and against these two paradigms. The former concept emanates from the pure theory of separation of powers and is predicated on a declaration theory of judicial functions which assigns to courts the role of declaring what the law is and nothing more (jus dicere). Proponents of this school do not go beyond written laws as they believe that the legislature has written what is meant and meant what is written – ita scriptum est (it is so written). They are not concerned even if literal interpretations of statutes lead to absurdity, hardship or injustice. They are also opposed to vesting courts with discretionary powers, because the discretion of a judge, cautioned Lord Camden, is the law of tyrants – always unknown, different in different men, causal and depending on Constitution, temper and passion – and that in the best it is often caprice, while in the worst it is every vice, folly and passion. Judicial passivism is also called the bureaucratic tradition in which judges stick tenaciously to the written text treated as ex cathedra.

 

On the other hand, judicial activism is rooted in the concept that the end of any law is to arrive at justice, and if literal construction occasions injustice it defeats the very purpose for which the law was enacted.

 

Ordinarily, a judge is considered an activist when (s)he does not go by the literal meaning of the statute but gives effect to what, in her/his opinion, is congruous with the spirit of the law. The Harper Collins Dictionary of American Government and Politics defines it as the ‘making of new public policies through the decisions of judges. According to The New Dictionary of Cultural Literacy, it is synonymous with the term ‘broad construction’ which the dictionary defines as a ‘theory of interpretation of the Constitution that holds that the spirit of the time, the values of the justices, and the needs of the nation may legitimately influence the decisions of a court, particularly the Supreme Court.

 

C. JUDICIAL SELF-RESTRAINT VERSUS JUDICIAL ACTIVISM:

 

The concept of judicial review has changing dimensions. To begin with, it is a product of judicial self-restraint. But sometimes it invites activism. The terms judicial restraint and judicial activism describe the degree of assertiveness of judicial power. Judges are said to exercise judicial restraint when they have closeness to statutes and previous cases in reaching their decisions; and they are said to exercise judicial activism when they are apt to interpret existing laws and rulings more loosely and interject their own values in the court decisions.

 

D. EVOLUTION AND DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA:

 

The term “judicial activism” came into currency sometime in the twentieth century to describe the act of judicial legislation i.e., Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham.

 

In India, the Regulating Act of 1773, which symbolised the new concept of partnership between the Crown of England and the East India Company, was the first essay in constitution-making for India by the British Parliament. The Act created a Supreme Council in Bengal, comprising the Governor-General and four councillors, which was vested with chief executive authority over the other two provinces of Bombay and Madras. A Supreme Court was also founded consisting of a Chief Justice and three judges. However, the Regulating Act did not spell out the functions of the Supreme Court clearly, which brought it into fierce conflict was the Supreme Council which complained that the judges aimed at running a parallel government. Berating the encroaching spirit of the judges a document of 1781 reads:

 

They have subjected every zamindar in the country to their jurisdiction. They have granted writs of ejectment against persons who have bought estates by the order of the Governor-General and Council. They have ordered a writ of habeas corpus against the Naib Subha who would have executed it, to avoid the consequences of such a measure, entreated the Chief Justice to suspend the execution of the writ.

 

The collision between the Council and the court reached hideous proportions threatening to tear asunder the lifelong friendship between Warren Hastings and Sir Elijah Impey, the then Chief Justice. In May 1780 Impey complained that he was being sacrificed to a union between Hastings and Philip Francis. Hastings, however, successfully appeased the Chief Justice by giving him supervisory power over the working of the district courts.

 

Judicial review of legislative acts was in vogue in the British colonies including India, since colonial legislatures were not supreme as they derived their powers from the legislations enacted by the British Parliament. Thus, the Indian courts exercised the power of judicial review of legislation from the first Act by the British Parliament, enacted in 1858. The Calcutta High Court introduced the principle of judicial review in the following words:

 

The theory of every government with a written Constitution forming the fundamental and the paramount law of the nation must be that an Act of legislature repugnant to the Constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow in fact what was established in theory and make that operative in law which was not law.

 

The study of India reveals that the glimpses of judicial activism were visible, even during the pre-independence colonial era, in various judgments of the Privy Council which had the jurisdiction to review the decisions of the Company’s courts and the Crown’s courts in colonial India. In Emperor v. Sibnath Banerjee (1945), the Privy Council held that the Court can investigate the validity of orders passed under Section 59 (2) of the Government of India Act, 1935. Judicial review of the Privy Council however ended with the abolition of the Privy Council jurisdiction Act on 10th October, 1949.

 

The High Commissioner for India v. I.M. Hall (1948), is another case where the Privy Council incorporated the principles of ‘reasonable opportunity to the heard’ within the meaning of Section 240 (3) of the Government of India Act, 1935. Judgments given by the Federal Court constituted under the Government of India Act, 1935 in Niharendu Dutt Majumdar v. Emperor (1942), is yet another example of an activist judiciary. Here, the Federal Court held that mere criticism or even ridicule of the Government does not amount to sedition unless the Act was calculated to undermine respect for the Government so as to make people cease to obey it so that only anarchy can follow. However, the Federal Court constituted under the Government of India Act, 1935 mainly played the role of a literal interpreter. This was because the Constitution of 1935 had no specific chapter on the Bill of Rights and wide discretionary powers were conferred on the executive.

 

E. IMPACT OF JUDICIAL ACTIVISM IN THE ADMINISTRATION OF JUSTICE:

 

In India, public law review has not been limited to the enforcement of public rights only, rather it has been extended to keep the administrative actions within proper control. The Supreme Court is the sentinel on the qui vive and gives meaning and life to the constitutionally guaranteed fundamental rights. In doing so, it has expanded its jurisdictional reach enormously so as to cover the authorities which had earlier been considered outside the writ jurisdiction of the court. It has also expanded its jurisdictional reach by making a public law remedy available to victims not only against the State but against individuals too.

 

In addition to the rights of working women, the rights of general workers relating to employment, promotion and other incidence of employment need more and more protection from different public corporations and establishments. The ‘State’ would have an additional duty to see that the rights of employees of such bodies are not infringed. With this view, the Supreme Court has given a liberal and the broadest possible interpretation to the expression “State”, defined under Article 12 of the Constitution.

 

The first march towards increasing the jurisdictional reach of the Supreme Court which became visible when the court left the traditional principle of ejusdem generis and evolved in Rajasthan SEB v. Mohan Lal (AIR 1967 SC 1857), the principle of constitutional or statutory body on whom powers were conferred by law. Thus, the expression “other authorities” used in Article 12 was held necessarily to mean an authority engaged in the sovereign functions of the State.

 

The jurisdictional reach of the Supreme Court, through evolution of the concept of State agency or instrumentality, was further expanded in Ramana Dayaram Shetty v. International Airport Authority of India (1979). A three-judge Bench, comprising of Bhagwati, Pathak and Tulzapurkar JJ, came to discuss whether the International Airport Authority was an agency or instrumentality of the State, so as to provide the security of fundamental rights to its employees.

 

A more radical step to expand the jurisdictional reach of the court was taken in Ajay Hasia v. Khalid Mujib Sehravardi (1981). The test propounded by Mathew J in Sukhdev Singh and elaborated by Bhgwati J in R.D. Shetty was reformulated by the Constitution Bench in Ajay Hasia. It dealt with a challenge under Article 32 of the Constitution to admissions made to a college established and administered by a society registered under the J&K Registration of Societies Act, 1898.

 

Bhagwati J gave a new angle to justify the court’s increased jurisdictional reach. Said Bhagwati J: “It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence.”

 

The day when Ajay Hasia was decided, a three-judge Bench decided Som Prakash Rekhi v. Union of India (1981). The majority decision was pronounced by Krishna Iyer J and Pathak J delivered a separate judgement. A similar line of reasoning was adopted by Krishna Iyer J in Som Prakash Rekhi as was adopted by Bhagwati J in Ajay Hasia. Declaring the Bharat Petroleum Corporation as “State” within the meaning of Article 12, Krishna Iyer J pointed out that it is immaterial whether the Corporation is formed by a statute or under a statute. He emphasised, “The true test is functional. Not how the legal person is born but why it is created.”

In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002), a seven-judge Bench of the Supreme Court, comprising S.P. Bharucha CJ and S.S. Mohammad Quadri, R.C. Lahoti, S. Santosh Hegde, Doraiswamy Raju, Ruma Pal and Arijit Pasayat JJ, by 5:2 majority declared the Council of Scientific and Industrial Research an instrumentality of the State and, thereby, brought it within the definition of “State” under Article 12.

 

After independence, India adopted its Constitution which, inter alia, guaranteed Fundamental Rights to its citizens. Democracy, in any sense, cannot be established unless certain minimal rights, which are essential for existence, are assured to every citizen of the country. The Preamble to the Constitution depicts these aspirations and Part III of Indian Constitution provides these rights to every citizen within territory of India. Part III of the Indian Constitution dealing with fundamental rights, weaves a "pattern of guarantee" on the basic structure of human rights and imposes negative obligations on the State not to encroach on individual liberty in its various dimensions. Every activity which facilitates the exercise of the life and personal liberty may be considered integral part of this right. Simultaneously, the judicial approach towards the interpretation of the right to personal liberty under Article 21 has moved from narrow restricted view to the border view.

 

In Part III of the Constitution of India, the Right to Life and Personal Liberty has witnessed different phases at different point of time. Restructured Article 21 is a by-product of judicial dynamism and activism of the Supreme Court of India. The emergence of the Indian Supreme Court as a custodian of people’s right in a democratic way is the most significant and important development in the judicial history of independent India. It is being envisaged not as a redressal forum of the elite class in the society, but it is perceived as a forum for raising, redressing and articulating the problems of have-nots, deprived, oppressed, downtrodden, women and children, environmental groups, exploitation and abuse of powers and position by persons holding high public office.

 

A major breakthrough came in Maneka Gandhi’s case (1978). It was a landmark example of amplifying the law to enhance personal rights and fundamental rights. There, the legislation governing grant of passport was interpreted in a manner so as to enhance the rights of personal freedom and personal liberty. In the instant case, the passport of Maneka Gandhi had been impounded and she challenged the validity on the ground that action violated her personal liberty. No hearing had been given to her as to why her passport should not be impounded. The Supreme Court not only gave wider meaning to the words ‘personal liberty’ but also brought in the concept of ‘procedural due process’. While giving wider meaning to the words ‘personal liberty’ the Court held that the earlier view that ‘personal liberty’ included all attributes of liberty except those mentioned in Article 19 stood rejected. Where a law restricted personal liberty, a court would also examine whether such restriction on personal liberty also imposed restrictions on any of the rights given by Article 19. The Court held that the right to go abroad was part of ‘personal liberty’. ‘Personal liberty’ a variety of rights which go to constitute the personal liberty of man, in addition to those mentioned in Article 19. The Court held that impounding of her passport without giving her a hearing was not according to procedure established by law. The procedure that a must provide must be a just and fair procedure.

 

The rules of natural justice which is a term used for a fair hearing, are the essential requisites of fair procedure. These rules are: 13 Article 21 of the Constitution lays down “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

 

(1) That no one should be a judge in his own cause and

 

(2) That no one should be condemned unheard.

 

In the present case, the Court was called upon to decide whether Mrs. Maneka Gandhi was entitled to a hearing before her passport was impounded. The Court conceded that in some situations where urgent action was needed, a prior hearing might not be feasible. In such exceptional situations if a prior hearing was not given, the authorities must give a post decisional hearing. On the assurance of the learned Attorney General that a post-decisional hearing would be given soon, the majority, barring Justice Beg, held that the government ‘sanction need not be stuck down. Justice Beg held that the Government’s action was unconstitutional and void. In Maneka Gandhi, the Court clearly overruled Gopalan on the following issues:

 

(1) The law authorizing deprivation of personal liberty would have to be valid not only under article 21 but also under article 19(1) (d);

 

(2) The words ‘life’ and ‘personal liberty’ had wider meanings that would be discovered from time to time; they were open-textured expressions;

 

(3) The words ‘procedure established by law’ meant not the procedure prescribed by law but procedures considered to be just and fair in civilized countries.

 

The most significant aspect of Maneka Gandhi was that the Court laid down a seminal principle of constitutional interpretation. There cannot be a mere textual construction of the words of the Constitution. Those words are pregnant with meanings that unfold when situations arise. This opened the Pandora Box which resulted in flooding of litigations further expanding Art 21.

 

The scope and extent of the application of the doctrine of basic structure again came up for examination in Minerva Mills Ltd. V. Union of India (1980). In this case the petitioners challenged the validity of Sections 4 and 55 of the Constitution (Forty-second Amendment Act, 1976) on the ground of violation of the basic structure of the Constitution as laid down in Kesavananda Bharati. These sections amended respectively Articles 31-C and 368. In Article 31-C laws implementing any Directive Principle were exempted from challenge on the ground of violation of Article 14, 19 and 31 and 31 and in Article 368 clauses (4) and (5) validated all invalidated and existing amendments and removed all limitations on future amendments. While the court unanimously invalidated the amendment of Article 368, it invalidated the amendment of Article 31-C by 4:1. Applying the basic structure doctrine with respect to Article 368 it held that:

 

“Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, limitations on the power cannot be destroyed”.

 

In Waman Rao v. Union of India (1981), the Supreme Court re-examined and upheld the validity of original and amended Article 31-A and of Article 31-B and the Ninth Schedule with reference to the basic structure doctrine. About the First Amendment introducing these articles and the schedule into the Constitution the Court also said that instead of weakening, the Amendment strengthens the basic structure because it “made the constitutional ideal of equal justice a living truth.”18 The Court also said the same thing about the unamended Article 31-C as it stood before the Constitution (Forty-second Amendment) Act, 1976.

 

The declaration of fundamental rights in the Constitution is meaningless unless there is effective machinery for the enforcement of the rights. It is the remedy, which makes the right real. If there is no remedy there is no right at all. The founding fathers of the Constitution, therefore, provided for an effective remedy for the enforcement of these rights under Article 32 and 226 of the Constitution. Article 32 says about remedies for enforcement of rights conferred by Part III of the Constitution. It is established that remedy under Article 32 is available only for the violation of Fundamental Rights guaranteed by it. As a result of the liberalized view taken by the Supreme Court in the interpretation of Article 21, a new approach to protect the interest of the aggrieved person has been developed by it.

 

The power of the Supreme Court to deviate from traditional concepts and to formulate new rules for granting effective relief for violation of fundamental rights is traceable to Article 32. Regarding the ambit of clause (1) of Article 32, Bhagwati, J.in Bandhua Mukti Morcha (1984) observed: “There is no limitation in regard to the kind of proceeding envisaged in Article 32(1) except that the proceeding must be "appropriate" and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right. The Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right. They did not stipulate that such proceeding should conform to any rigid pattern or straitjacket formula as in England. They knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right, would become self-defeating and it would place enforcement of fundamental rights beyond the reach of common man. The entire remedy for enforcement of fundamental rights which the Constitution-makers regarded as so precious and invaluable, and elevated to the status of fundamental right, would become a mere rope of sand so far as the large masses of the people of this country are concerned.”

 

Article 32(2) expressly provided that; the Court may grant "appropriate" remedy for enforcing the rights. Hence the power can be traced to “appropriate” remedy under Article 32(2) of the Constitution of India.

 

The Court in Bandhua Mukti Morcha’s case emphasised that while interpreting the article the approach must be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose underlying the article and its interpretation must receive illumination from the trinity of provisions which permeate and energise the entire Constitution viz. the preamble, fundamental rights and directive principles of State policy.

 

Regarding the power of the Supreme Court for the enforcement of fundamental rights the Supreme Court observed: "It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ”.

 

F. CONCLUSION:

 

Concisely judicial activism refers to a judicial philosophy where judges interpret and apply the law in a way that goes beyond the literal text of the law or precedents, often to promote certain social, economic, or political goals. This approach typically involves judges taking an active role in shaping public policy and addressing societal issues through their interpretations of the law.

 

Proponents of judicial activism argue that it is necessary for judges to adapt the law to changing social realities and to protect individual rights, especially when other branches of government fail to do so. They see it as a way to ensure justice and fairness in society.

 

However, critics of judicial activism argue that it undermines the democratic process by allowing unelected judges to make decisions that should be left to elected representatives. They argue that it can lead to judicial overreach and the imposition of personal beliefs on society, rather than a faithful interpretation of the law.

 

The debate over judicial activism is ongoing and often contentious, with opinions varying depending on one's political and legal philosophy. Some cases of judicial activism have been celebrated for advancing civil rights and liberties, while others have been criticized for overstepping the bounds of judicial authority.