Luxmikant Polity Crux Static Books Crux Notes

LUXMIKANT POLITY CRUX NOTES-CHAPTER-28

Judicial Activism

 

Origin ·         Concept originated and developed in USA.

·         In 1947 by Arthur Schlesinger Jr., an American historian and educator.

·         In India, introduced in 1970s. By Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and Justice D.A. Desai

MEANING OF JUDICIAL ACTIVISM

 

·         Denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society also known as “judicial dynamism”.

·         Exercising judicial power that motivates judges to depart from normally to judicial precedent.

·         Judiciary of protecting individual Rights.

·         Forces the other two organs of the govt to discharge their duties.

·         JA decisions usually call for social engineering.

·         Occasionally intrade upon the legislative and executive domains.

·         JA closely related to the concept of PIL.

·         PIL is an outcome of JA, its most popular manifestation.

Concept of JUDICIAL ACTIVISM Is closely related to the PIL (Public Interest Litigation) most popular form of judicial activism.
Justification of Judicial activism ·         According to Dr. B.L. Wadehra, There is near collapse of responsible government, when the Legislature and Executive fail to discharge their respective function. (Result, in erosion of the confidence in the Constitution and democracy amongst citizen).

·          Judiciary for the protection of their rights and freedoms.

·         Judicial Enthusiasm liberalises the principle of ‘Locus Standi’.

·         Sometimes, legislative vacuums call for JA.

·         The constitution gives scope to the judiciary to play an active role.

·         Article 142:- The SC ion the exercise of its jurisdiction may pass such device or make such order as is necessary for doing complete justice in any cause or matter pending before it.

According to Subhash Kashyap ·         When the legislature fails to discharge its responsibilities.

·         ‘Hung’ legislature when the government provide weak, insecure and busy on the struggle for survival.

·         Power may be afraid of taking honest and hard decision.

·         Legislature and executive fail to protect rights of citizens

According to Dr. Vandana (a)           Expansion of rights of hearing in the administrative process.

(b)           Excessive delegation without limitation.

(c)            Expansion of judicial control over discretionary powers.

(d)           Expansion of judicial review over the administration.

(e)            Indiscriminate exercise of contempt power.

(f)            Passing of orders which are pe se unworkable.

(g)            Over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives.

(h)            Promotion of Open govt.

ACTIVATORS OF JUDICIAL ACTIVISM ·         Civil Rights Activists

·         People Rights Activists

·         Consumer Rights Groups

·         Bonded Labour Groups

·         Citizen Groups against Large Irrigation Projects

·         Rights of Child Groups

·         Custodial Rights Groups

·         Poverty Rights Groups

·         Indigenous People’s Rights Groups

·         Women’s Rights Groups

·         Bar-based Groups

·         Media Autonomy Groups

·         Assorted Lawyer-Based Groups

·         Assorted Individual Petitioners

APPREHENSIONS OF JA (JUDICIAL ACTIVISM) ·         Ideological fears

·         Epistemic fears

·         Management fears

·         Legitimation fears

JA VS. J RESTRAINT ·         Judicial activism and judicial restraint are the two alternative judicial philosophies in the US.

·         JR– Contend that role of Judges should be scrupulously limited.

·         ‘Original intent’ of the authors of the constitution and its amendments is knowable, and must guide the courts.

·         JR- Conservative Interpretative of the constitution.

·         JA- Liberal interpretative of the Constitution.

Supreme Court Observations on Judicial Restraint ·         While delivering a judgement in December 2007,

·         The SC of India- called for judicial restraint and asked courts not to take over the functions of legislature or Executive

·         Saying- there is broad separation of power under the Constitution & each organ of the state must have respect for others and should not encroach on others domain.

·         Judicial activism must not become judicial Adventism.

Assumptions of Judicial Restraint Some assumptions underlie the doctrine of Judicial Restraint.

They developed in the USA, but are equally applicable to the Indian Context as well.

The Doctrine of judicial restraint is based on following assumptions.

1.             Court is undemocratic, unelected and presumably non-responsive to the popular will. It should defer wherever possible to the ‘more’ democratic branches of government.

2.             In the USA, Judicial review is critiqued for not being a power specifically granted by the constitution.

3.             It is against the doctrine of separation of powers.

4.             It weights against federalism, which blames powers b/w the centre and the states. It requires the court to defer towards the action of state governments and officials.

5.             The Court should not overstep its boundaries without considering the risk of loss of faith of the public and loss of funds.

6.             Courts of law should not be concerved with polities Law is the process of reason and judgement and politics is concerned only with power and influence.

7.             Adjudication must be done within a system of historically validated restraints and conscious minimisation of judges’ preferences.

8.             Courts must realise that administrative authorities have expertise in their fields, whereas the courts do not.

9.             The justification often given for judicial activism is that the other organs of the state are not doing their job properly. Even if this is so, the judiciary has cases pending for over 5 decades.

10.          If there are defects in the legislature and the     executive, it is for the people to correct it in a democratic system.

11.          Judiciary taking over legislative and executive functions is not a remedy, only a violation of the separation of powers. Judiciary has neither the resources nor the expertise to perform these functions.

12.          Protects the independence of the judiciary as when courts encroach on other jurisdictions, voters and legislators and other elected officials will be return closely monitor the activities of the judges.

ACTIVATORS OF JUDICIAL ACTIVISM Upendra Baxi, an eminent jurist, has delineated the following typology of social / human rights activists who activated judicial activism:

1.             Civil Rights Activists: These groups primarily focus on civil and political rights issues.

2.             People Rights Activists: These groups focus on social and economic rights within the contexts of state repression of people’smovements

3.             Consumer Rights Groups: These formations raise issues of consumer rights within the framework of accountability of the polity and the economy.

4.             Bonded Labour Groups: These groups ask for judicial activism is nothing short of annihilation of wage slavery inIndia.

5.             Citizens for Environmental Action: These groups activate an activist judiciary to combat increasing environmental degradation andpollution.

6.             Citizen Groups against Large Irrigation Projects: These activist formations ask the Indian judiciary the impossible for any judiciary in the world, namely, cease to and desist from ordering against mega irrigation projects.

7.             Rights of Child Groups: These groups focus on child labour, the right to literacy, juveniles in custodial institutions and rights of children born to sexworkers.

8.             Custodial Rights Groups: These groups include social action by prisoners’ rights groups, women under state ‘protective’ custody and persons under preventivedetention.

9.             Poverty Rights Groups: These groups litigate issues concerning draught and famine relief and urbanimpoverished.

10.            Indigenous People’s Rights Groups: These groups agitate for issues of forest dwellers, citizens of the Fifth and Sixth Schedules of the Indian Constitution and identityrights.

11.           Women’s Rights Groups: These groups agitate for issues of gender equality, gender-based violence and harassment, rape and dowrymurders.

12.            Bar-based Groups: These associations agitate for issues concerning autonomy and accountability of the Indianjudiciary.

13.            Media Autonomy Groups: These groups focus on the autonomy and accountability of the press and instruments of mass media owned by the State.

14.            Assorted Lawyer-Based Groups: This category includes thecritically influential lawyers’ groups which agitate for various causes.

15.            Assorted Individual Petitioners: This category includes freelance activistindividuals.

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