Insights into Editorial: The judiciary is shifting

the balance of power

BY INSIGHTS MAY 18, 2016

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Insights into Editorial: The judiciary is shifting the balance of power

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18 May 2016
Summary:
Judiciary, in recent years, is increasingly being criticized for actively encroaching on the powers
of legislative and executive authorities. The judiciary has appropriated for itself a role far
beyond its primary duties of dispensing justice and interpreting laws, claim few
parliamentarians. Few experts also claim, step by step, brick by brick, the edifice of Indias
legislature is being destroyed by the judiciary. With the court recently ordering the creation of a
National Disaster Mitigation Fund while national and state disaster response funds already exist,
the issue has come to the fore once again.
What is Judicial Activism?
Judicial activism is 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.
Causes of Judicial Activism:
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.
Evolution:
The judiciary in India is often called the most powerful among its tribe globally. While the
creative interpretations of the text of law had started earlier, the post-Emergency phase marked a
distinct turnaround in the Indian judiciarys activism.

After the ignominious failure to protect the fundamental rights of the citizens in ADM
Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be

insufficient. So, the pursuance of constitutional legitimacy was replacedin the words of
Lavanya Rajamani and Arghya Senguptaby a quest for popular legitimacy.

A series of judgements, most notably S.P. Gupta vs President of India and others (1981),
gave rise to a new legal instrument called public interest litigation. This instrument allowed
public-spirited individuals seeking judicial redress on a variety of matters beyond what
would be permitted by the traditional rule of locus standi, which specifically addressed the
concerns of aggrieved citizens.

Through several judgements thereafter, the judiciary has unhesitatingly shuffled into the
roles of both the legislature and the executive. It assumed wide powers in matters of
protection of the environment.

Why Judicial Activism is good?

There are many issues that are sensitive, which need to be handled with a certain amount
of care that many laws dont allow. Judicial activism allows a judge to use his personal
judgement in situations where the law fails.

Judges have sworn to bring justice to the country. This does not change with judicial
activism. It allows them to do what they see fit, within reasonable limits of course. It gives
judges a personal voice to fight unjust issues.

It also provides a system of checks and balances to the other government branches.

It has its own system of checks and balances too. Even if a judge decided and ruled that
certain law is unjust, it can still be actually overruled with an appeal to another court, even to
the Supreme Court.

Why Judicial Activism is not so good?

While delivering any judgement in this regard, courts are often ill-equipped to weigh the
economic, environmental and political costs involved.

When judicial activism is used, it is like the laws do not apply. The judges can override
any law that there is, which technically means there are no laws in the judges eyes.

Sometimes when judicial activism is exercised it is done for solely selfish or personal
reasons. They may be political, or the judge may have received compensation for his
decision.

Judicial activism becomes a more profound subject for those who serve on the Supreme
Court, as their rulings generally stand. With the power to have the final say on matters, their
judicial opinions would also become standards for ruling on other cases.

It sees the letter of the law and politics as separate issues.

Conclusion:
In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on
the domain of the legislature or the executive. But in an environment where justice is constantly
being subverted, it is arguable that the courts are left with no choice but to step beyond their
traditional domain and prod the executive into discharging its constitutional responsibilities.
However, this encroachment is clearly a matter of huge concern. Also, camouflaged phrases like
judicial overreach, used often, have been incapable of instigating any self-correction by the
honourable judges. Hence, its time for the courts to proceed ahead cautiously in this regard.