participating in Judicial Activism
As in daily we are listening up about judicial activism, so I want to know how an individual (legal background) can contribute to judicial activism?
By assisting the court with true facts and by bringing to light any injustice through PILs.
Scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution.
Article 32 gives to the citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).
With the advent of Public Interest Litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ for ensuring that executive agencies comply with judicial directions. Successful challenges against statutory provisions result in reliefs such as the striking down of statutes or even reading down of statutes, the latter implying that courts reject a particular approach to the interpretation of a statutory provision rather than rejecting the provision in its entirety. Judicial activism is gaining prominence in the present days. In the form of Public Interest Litigation (PIL), citizens are getting access to justice. It has carried forward participative justice. It has laid just standards of procedure. It has made justice more accessible to citizens".
The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance. Judicial Activism also happens when:
1. When the legislature fails to discharge its responsibilities.
2. In case of a hung parliament where the government is very weak and instable.
3. When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration,
4. When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and
5. Finally, the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers.
Judicial Activism as a concept means when the Judiciary steps in to correct the failures of the other two organs of the government. While it is hugely succesful in India now, you don't actually want to contribute to it, because judges themselves have started recognizing the pitfalls of encroaching upon the jurisdiction of the other organs of the government. Apart from undermining the principle of separation of power, encroaching upon jurisdiction of other governmental organs through Judicial Activism because of their failures is hypocritical when the judiciary itself has many administrative problems of its own, most prominent being the high backlog of cases.
If you still want to contribute, I would recommend filing a PIL(a tool invented by J. Bhagwati for the purpose of providing justice, i.e. judicial activism) for asking the judiciary to address an issue that really needs immediate action, is not being addressed by, or could not be addressed by, the executive, and is the cause of gross violations of fundamental rights of the ppublic in general. Anything less than that would be ignored by the courts because the Indian Judicary, after 30 years of Judicial Activism, is now afraid of going overdrive into Judicial Overreach and thus, has started practising Judicial Restraint.
Book a phone consultation with a top-rated lawyer on Lawfarm.