Judicial activism is generally defined as the court rulings made based on political or personal views of the judges presiding over the case.
It occurs when courts do not confine themselves to the textual interpretation of the law, and instead use judicial creativity for interpreting the law and also providing relief. Judiciary may also apply new rules in a broader context rather than adjudicating on the specific issues.
E.g.: Vishaka Case – Prevention of Sexual Harassment in Workplaces.
In an extreme sense, Judicial Activism also refers to such cases where Judiciary may give certain guidelines on an issue even before the same is considered by Legislature and Executive.
• Under the context of protecting the spirit of the constitution, it may overrule a law passed by the Legislature.
• Through liberal interpretation of rights and deriving new rights out of it. E.g: Right to pollution free environment derived from Article 21.
• The radical departure from a normal interpretation and judgement.
According to Justice Krishna Iyer – “The main reason for judicial activism was that the judiciary was trying to reach out, either because the government has failed or has been indifferent. Thus it is the vacuum created by the other two (Legislature and Executive) organs of the government which has forced the judiciary to intervene on behalf of constitution and citizens.”
There is a section which argues that judicial activism is not real rather it is only a continuation or extension of judicial activism since the judiciary is performing the task of guardian of Fundamental Rights.
According to Former Chief Justice of India, P.N. Bhagvathi -“Judiciary functions can’t be just relegated to a photographic theory of judicial functions” – i.e., the duty of a judge is only to find the law and lawmaking do not belong to him. This, he says was conceived so as to preserve the neutrality of judges. However, he says that this does not mean that judges will be mute spectators when there are injustice and system failure. It is then that the judicial innovation becomes necessary to invest law with meaning and purpose.
In both, the statements the honourable judges have indirectly described how during the vacuum or need the judiciary has emerged as an institution of hope and faith to cater to the needs of the society.
As per the theory of separation of powers the functions of the government are divided among the different organs of the government namely Legislature, Executive and Judiciary and each organ has their own responsibility and jurisdiction given under the constitution.
Cultures are meant to change and societies are meant to change. And as per needs of the continuously evolving society, the legislature to holds the responsibility to formulate laws.
But it has been observed that because of political obligation the legislature at times has failed to deliver and cater to the needs of the changing society. In light of that, the judiciary has taken proactive actions in order to set things right.
Constitution has laid down the laws, procedures and infrastructure for the administration of the country, but when it comes to the conflict between constitutionality vs. morality and public opinion there are no clear cut demarcations. Whenever the relationship between the judiciary and public opinion is questioned, there has not been any clear cut answer to that. For instance, with respect to the procedures of appointment to the constitutional positions and quasi-constitutional positions like CBI (Central Bureau of Investigation director), the judiciary has always considered the public opinion and interest over the politicization of such appointments. Moreover, many of the court’s guidelines came at a time whenever a politically motivated executive was found to be moving away from its governance responsibilities. In other words, there was always a political context to India’s history of judicial activism.
Even with a prolonged period of stable, majority governments capable of passing laws without too much difficulty through both the Lok Sabha and the Rajya Sabha, they have failed to do so. It is on the issue of social policy that the relationship between the judiciary and public opinion has become complicated.
In the recent past, the courts have made important interventions to decriminalize homosexuality (Section 377), remove adultery as a criminal offence (Section 497), ban on unilateral instant triple talaq divorces among Muslims and permit women’s access to shrines such as Haji Ali in Mumbai and Sabarimala in Kerala.
Most of these judgments have not been greeted with significant opposition in the court of public opinion, although there has been some discontent that changes to the Indian Penal Code should have been left to Parliament to work out. There was also some unease over a misconception that by removing homosexuality as a criminal offence the judges were also endorsing same-sex relationships. But that was a passing disquiet that did not distract from the widespread feeling that to declare homosexuals as criminals was a step too far.
The Sabarimala judgment belongs in a different league altogether. Apart from the 1986 Shah Bano judgment - recognizing the importance of alimony to divorced Muslim women - that provoked a negative reaction in Muslim society and compelled the Rajiv Gandhi government to pass remedial legislation, there has been no other judgment that has triggered such a backlash. The right of women of all ages to worship at the Sabarimala temple - thereby removing a ban on all women of child-bearing age - has led to mass protests all over Kerala and unease among Hindus all over the country. The protests, that included a very large number of women devotees, were significant enough to force the communist-led state government of Kerala to call off attempts to allow some women - who turned out to be activists, rather than devotees - to enter the temple under police protection.
The Sabarimala judgment that prioritized Article 14 of the Constitution conferring equality on all citizens over Article 25 giving religious denominations protection of their beliefs, traditions and sacred space, provoked a great deal of opposition. An existing belief that judiciary-inspired social reform initiatives would be readily welcomed and opposition would be token and politically inconsequential were shattered. The faith in the court’s innate wisdom had been bolstered by the fact that the judgments on homosexuality and instant triple talaq were widely, and even internationally, acclaimed. It may also have been felt that by opening the doors of Sabarimala to all, the court was pursuing the logic of social reform initiatives over the ages that included the abolition of Sati, raising the minimum age of marriage, barring temples from discriminating among worshippers on the basis of caste, and granting equal rights of inheritance to women. In short, there was a belief that a historical process was at work.
The actions of the judiciary may not be appreciated now but the future generations to come may respect the interventions and praise judiciary for its brave actions taken so far.
Having said that, it is also important that the judiciary has to understand and respect the constitutional jurisdiction where interfering in the activities of other organs may raise the status of judiciary from a mere law interpreting body to a crusader of public opinion but it may affect the harmony and balance between the organs which is not desirable.