JUDICIAL ACTIVISM IN INDIA: ISSUES AND CHALLENGES
Author: Dr. Vivek Kumar, LLM,NET, LL.D, Deptt. Of Law DAV (PG) College Dehradun Uttarakhand
Co-author: Dr. J S Chandpuri LLM,NET,PhD, Deptt. Of Law DAV (PG) College Dehradun Uttarakhand
The judiciary is the cornerstone of the democracy which is an integral part of government. Judiciary is the third pillar of democracy but most important of the three organs of government. The constitution of India guarantees the fundamental rights and freedoms to all citizens, but these freedoms and rights have no significance unless there is a strong mechanism to enforce them, therefore judiciary plays a pivotal role to protect the human rights and their interests at the same time the judiciary keeps an eye on the activities of government. That's why the judiciary is also called vigilant sentinel of democracy. Public Interest Litigation (PIL) is the result of judicial activism. The judiciary has emphasized the importance of open government and rejected the privilege of government through judicial activism, the courts have also been restraints the government to misuse of their machinery. There are a number of cases, where judiciary has interfere the government affairs. Due to Judicial Activism, Article 21 of the constitution has become a Mini Constitution itself so far, consequently the ambit and dimension of article 21 of the constitution has become very elaborate. The role of judicial activism cannot be neglected or overlooked as it played a significant role in providing justice to the underprivileged sections of society, indigent individuals, socially and educationally backward classes, victims of trafficking and under trail prisoners, proper implementation of fundamental rights etc. could only become possible due to the advancement of judicial activism.
The Indian judiciary is playing a vital role of upholding citizen rights and implementing constitutional principles when the legislature and executive are fails to do so. Besides this judiciary has protest against the implementation of wrong policy and arbitrary laws of government. Due to its rational virtue and awareness, the judiciary has always raised its voice with majority against the encroachment of fundamental rights of citizens. On the other hand there is a narrow demarcation between activism and overreach, sometimes in the process of judicial activism the judiciary intervenes too much and reflects its personal belief in the course of providing justice. Due to judicial overreach, conflict takes place between the legislative, seems to be inactive or less competent to the people, the separation of powers on which the democracy stands is killed by the judicial overreach. Besides this there are so many socio-political issues which the judiciary is facing. Thousands of writs of Habeas Corpus as well as CAA, NRC cases and Article 370 are still pending, more than one lakh contempt cases as well as millions of pending cases has been lost their hope for the justice. It mostly said that the courts are working under the pressure of the governments. Cases in which the government itself is a party, are being here expeditiously, whereas matters related to the public are pending for many years. The present judiciary suffers from political interference. The law relating to UAPA and NSA are being misused openly and the judiciary remains silent in this regard. The judges are indirectly involved in political parties and are becoming the supporters of the government. However in a democracy, it is important to maintain the principle of separation of powers and uphold the three organs of government, at the same time the judiciary should be causes of stepping into spheres of activity that does not belong to it.
Thus, we can see that the higher judiciary is implementing the social interests with the highest priority. The role of judicial activism cannot be neglected or overlooked, it played a significant role in providing justice to the underprivileged sections of society, indigent individuals, socially and educationally backward classes, victims of trafficking and under trial prisoners, proper implementation of fundamental rights could only become possible due to the advancement of judicial activism. The Indian judiciary is playing a vital role of upholding citizens rights and implementing constitutional principles when the legislature and executive our fails to do so. Basically, the judiciary has protest against the implementation of wrong policy and arbitrary laws of the government due to its rational virtual and awareness, the judiciary has always raised its voice with majority, against such laws. But there is also a narrow demarcation between activism and overreach, sometimes in the process of judicial activism, the judiciary intervenes too much and reflects its personal belief in the course of providing justice. The interpretation of law start making the law, issues guidelines and directions which is to be done by the legislature.
Due to judicial overreach, conflict takes place between the legislature, seems to be inactive or less competent to the people. Besides this, the separation of powers on which the democracy stands is killed by the judicial overreach.1
Former supreme court justice, Mr. M. Katju is well known for his statements in society, although some people called his rhetoric, correct while many people also oppose it. Four judges of supreme court themselves had objected to the functioning of former chief justice of India Mr. Deepak Mishra. The impeachment motion against the former 4 judges of supreme court and High court was brought in parliament, although these resolution could never be passed by both the houses with majority, but points to a question mark on the independence of the judiciary. Former chief justice of Sikkim High court Mr. P. D. Dinakaran and Punjab & Haryana High court judge Nirmala Yadav are alleged misconduct of having acquired disproportionate assets. Dinakaran resigned from his post even before start of the impeachment.2 The impeachment motion was brought against the presiding judge of supreme court Mr. G. B. Pardiwala for his wrong remarks against schedule casts, when he was employed in Gujarat High court. Now he is in discussion with the harsh remarks in the Nupur Sharma hearing case, against, which many retired judges and many IAS themselves have a written letter to Supreme court.
In Kunal Kamara case, an interview was organised by DS4 ‘News exclusive channel’ with an eminent advocate of supreme court Mr. Bhanu pratap singh, the brief description of this interview is being presented here, Mr. Bhanu Pratap Singh says, that the supreme court is not functioning fairly. In corona period, the words ‘Satyamev Jayate’ written on seal of the supreme court have been removed and ‘Dharmo Dharme Rakshate’ have been done. In the Ayodhya case, the supreme court itself accepted that even though there was no enough evidence in the favour of the temple, the verdict was executed in the favour of the temple by article 142, it simply means the protection of a particular religion under the leadership of the people of a particular religion. The issue of 8 justices was presented by Prashant Bhushan with evidence which was not heard but he was find rupee 1 for contempt of court. Cases, which in favour of government are heard immediately, while opposing cases are either dismissed or put on hold, they are never heard. Matter which is relating to Article 370 is pending for 4 years. Thousands of writs of habeas Corpus, CAA and NRC Cases are pending for a long time. The government are not implementing many cases decided by the various high courts and supreme court, more than 1 lakh contempt cases are pending in courts. Where, then the judicial activism of courts have been lost? The BJP has collected more than rupee 6000 crore through electoral bond and petition was filed regarding this but there is no hearing yet. Laws like UAPA, NSA are being misused a lot, INA puts whomever it wants in jail and leaves whomever it wants, no one to listen. Arnab Goswami was bailed out even in serious sections and many people like poets Barvara Rao, Sudha Bhardwaj, Anand Dev Tumse and Gautam Dev Naulakha are still in jail since many years for Bhima Koregaon case, they have been submitted application for bail before supreme court as many times, but still longing for bail.3 Barvara is 80 years old and urinates on the bed, he is a patient of Parkinson, supreme court has been rejected his bail, saying that approach the Bombay High court for bail. Barvara's only fault is that he works for the schedule tribe people of Jharkhand and which has been termed as maoist. Mr. Bhanu pratap singh has claimed that more than 2000 people are in jail without guilt for Delhi riots, not only this, there are 60 percent of people who are in jails of the country, for which there is no one to listen to them. Decisions are made only on cast and religious grounds. Attorney general K.K. Benugopal ji himself said in Prashant Bhushan case, that 5 judges accepted that the democracy is in danger and he personally knows 9 such judges with evidence, who are corrupt. At last, he pleads with folded hands to the judges that at least look at yourself with a cool mind, introspect and think that why the finger has started pointing at you. You cannot walk away from criticism. If your work impartially and fearlessly then of course you will not be criticized anywhere. The former Solicitor General of India Mr Deepankar P. Gupta, wrote (Hindustan Times June 15, 2007) that there is a real danger that the activism of the courts may aggravate the activism of the authorities. Today, inconvenient decision are left by the executive for the courts to take. Despite all these criticism, the judiciary has played an active role through its activism especially through PIL. This has restored the rights of disadvantaged sections of the society. Hence it would to be appropriate to say that the scope of PIL is expending day by day against legislative and executive autocracy which indicates the spirit of judiciary. However in a democracy, it is important to maintain the principle of separation of powers and uphold the legitimacy of the three organs of government, at the same time, the judiciary should be cautious of stepping in to spheres of activity that does not belong to it.
2. www.livehindustan.com 21. April2018, and aajtak.in
3. NDTV India 12 July 2022 : “ The bail plea filed by P. Barvara Rao, has came up tohearing on 19 july, 2022 in this, the order of Bombey high court was challenged in which the court had refused to grant permanent medical bail”