Judicial activism, an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. Although debates over the proper role of the judiciary date to the founding of the American republic, the phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune. Although the term is used quite frequently in describing a judicial decision or philosophy, its use can cause confusion, because it can bear several meanings, and even if speakers agree on which meaning is intended, they will frequently not agree on whether it correctly describes a given decision.
The term activism is used in both political rhetoric and academic research. In academic usage activism usually means only the willingness of a judge to strike down the action of another branch of government or to overturn a judicial precedent, with no implied judgment as to whether the activist decision is correct or not. Activist judges enforce their own views of constitutional requirements rather than deferring to the views of other government officials or earlier courts. Defined in this way, activism is simply the antonym of restraint. It is not pejorative, and studies suggest that it does not have a consistent political valence. Both liberal and conservative judges may be activist in this sense, though conservative judges have been more likely to invalidate federal laws and liberals more likely to strike down those of the states.
In political rhetoric activism is used as a pejorative. To describe judges as activist in this sense is to argue that they decide cases on the basis of their own policy preferences rather than a faithful interpretation of the law, thus abandoning the impartial judicial role and “legislating from the bench.” Decisions may be labeled activist either for striking down legislative or executive action or for allowing it to stand. In the early 21st century one of the most-criticized Supreme Court decisions in the United States was in Kelo v. City of New London (2005), in which the court allowed the city to exercise its eminent domain power to transfer property from homeowners to a private developer. Because judges may be called activist for either striking down government action or permitting it (in Kelo they permitted it) and because activism in political usage is always considered wrongful, this sense of activism is not the antonym of restraint.
Less controversially, but less frequently, a judicial decision may be called activist in a procedural sense if it resolves a legal issue unnecessary to the disposition of the case. In the Anglo-American legal system, such pronouncements are called obiter dicta (Latin: “things said in passing”) and do not bind other courts considering the issue in the future. Procedural activism is generally considered improper at the federal level in the United States and in countries that follow the U.S. system (e.g., Kenya and New Zealand) on the grounds that the function of courts is to resolve concrete disputes between adverse parties, not to issue legal pronouncements in the abstract. In other systems, however (e.g., Austria, France, Germany, South Korea, Spain, and some U.S. states), courts are permitted to decide issues in the absence of disputes or adverse parties.
judicial activism in india
Its emergence can be traced back to 1893, when Justice Mahmood of Allahabad High Court delivered a dissenting judgement.
It was a case of an under trial who could not afford to engage a lawyer, So the question was whether the court could decide his case by merely looking his papers, Justice Mahmood held that the pre-condition of the case being “heard” would be fulfilled only when somebody speaks.
The following trends were the cause for the emergence of judicial activism — expansion of rights of hearing in the administrative process, excessive delegation without limitation, expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives; and passing of orders which are unworkable.
In the first decade of independence, activism on part of the judiciary was almost nil with political stalwarts running the executive and the parliament functioning with great enthusiasm, judiciary went along with the executive. In the 50s through half of the 70s, the apex court wholly held a judicial and structural view of the constitution.
In the famous Keshavananda Bharati case, two years before the declaration of emergency, the Supreme Court declared that the Executive had no right to tamper with the Constitution and alter its fundamental features. But it could not avert the emergency declared by Mrs. Gandhi and it was only at the end of it that the apex court and the lower courts began to continuously intervene in executive as well as legislative areas.
The first major case of judicial activism through social action litigation was the Bihar under trials case. In 1980 it came in the form of a writ petition under article 21, by some professors of law revealing the barbaric conditions of detention in the Agra Protective Home, followed by a case against Delhi Women’s Home filed by a Delhi law faculty student and a social worker. Then three journalists filed a petition for the prohibition of the prostitution trade in which women were bought and sold as cattle.
Taking cognisance of custody deaths Supreme Court ordered the police not to handcuff a man arrested purely on suspicion, not to take a woman to the police station after dusk. High Court judges visited the prisons to check the living conditions of prisoners, in the year 1993, in just a month the apex court proclaimed judgment protecting the rights of innocents held in Hazaratbal mosque in Srinagar, defining the constitutional powers of the Chief Election Commissioner, threatening multi-crore rupees industries with closure if they continued to pollute the Ganga and Taj Mahal and brought all government and semi government bodies under the purview of the Consumer Protection Act.
In a 1994, judgement it asked the Chief of Army Staff to pay Rs. 6, 00,000 to the widow and two children of an army officer who died due to the callousness of the authorities concerned some 16 years before. The controversial 27% reservation of jobs in Central Government and public sector undertakings was referred to the Supreme Court by the Rao Government. The court decision favoured 49% of jobs for backward castes and class but the ‘creamy layers; were exempted from this reservation. Similarly the court put a curb on the operation of capitation fee in colleges in Karnataka.
The Supreme Court giving directions to the CBI and summoning the head of the CBI to report on the hawala case reveals the breakdown of other machineries of the government. The court interference with the CBI working became inevitable in the wake of the tactics of delay and technical evasion that was undertaken by the investigative agencies.