19TH NOVEMBER, 2019
|RAJYA SABHA TELEVISION|
SAROKAR: JUDICIAL ACTIVISM VIS-À-VIS CONSTITUTIONAL RIGHTS
The term Judicial review or judicial activism is nowhere mentioned in the constitution. But the term has evolved from interpretation of article 13 article 32 articles 226 of the constitution which empower the Supreme Court and high court respectively to issue writs against the infringement of the constitutional rights.
Judicial activism vis-à-vis parliamentary democracy and the constitutional rights:
- Unlike the British Parliament, the Indian parliament is not the sovereign and unlike the in American judiciary the Judiciary of India is not sacrosanct.
- The Framer of Indian constitution has followed a middle path between the sovereignty of Parliament and the Ambit of judiciary.
- Art. 50 also state for the separation of power between the executive, legislative and judiciary.
- The provision of PIL that is Public Interest Litigation and the landmark judgment of the Kesavananda Bharati case in 1973 which introduced the basic structure of the Indian Constitution have enlarged the scope of the judicial review & judicial activism.
- Over the time the Supreme Court has interpreted the constitution and stated that the act should be followed in spirit not only in words.
- The term judicial review or the judicial overreach always comes into the picture when the legislature and executive fail to fulfill the aspirations of the mass.
- The primacy of the fundamental rights, environmental protection, and climate change etc. over development project has enlarged the scope of the judicial review and judicial activism.
- The CAMPA fund has been established after the repetitive direction from the Supreme Court. The Ban of the diesel older than 10 years old in the New Delhi is another example of the judicial activism.
- Sometimes the parliament or the state legislative assembly do not frame a law against the social evils owning to either the vote politics or they do not want to change the fabric of the society. Judiciaries have to intervene into it.
- This it can be substantiated with Sabarimala temple verdict, ban on the Jallikattu, SC/ ST act etc.
Judicial activism versus judicial overreach.
The line between judicial activism and Judicial Overreach is very narrow. In simple terms, when judicial activism crosses its limits and becomes judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.
The power of Judicial Overreach comes from nowhere. This is undesirable in any democracy. Judicial Overreach destroys the spirit of separation of powers. What makes any action activism or overreach is based upon the perspective of individuals. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach