Judicial activism’ in common parlance is understood as growth of judicial review of administrative actions and propriety of the legislations, particularly by the High Courts and the Supreme Court in their attempt to safeguard the fundamental rights of the citizens.
Courts want to be satisfied that the action of the executive and legislature does not offend the expressed provisions of the Constitution. By way of judicial scrutiny and interpretation of law, courts nullify the arbitrary action of the executive and put a check on the enactment of improper and draconian legislation which many a time comes in sharp conflict with the freedom of the individual.
The proactive role of the judiciary over the last decade is certainly a welcome step, but stepping into the domain of executive and legislature by judiciary in the guise of interpretation and expounding of the law is not conducive for a democratic State. It is heartening to note that the constitution has prescribed limitation and separation of powers between the three wings of the governance ie legislature, Judiciary and Executive. It has prescribed checks and balance so that no organ of the State would interfere in the sphere of activities of the other. The recent trend would go to show that judiciary has exercised its power of judicial review in matters of State activities for the welfare of the people which are the exclusive domain of action of the executive.
Of course, judiciary has justified its stand in the name of rule of law that when other two organs of the State have failed to discharge their constitutional obligation assigned to them and do not respond to the needs and aspirations of the social milieu, the judiciary as one organ of the State has to come to the picture to safeguard the rights and liberty of the citizens. This is no solution of the problem where the constitution provides for separation of powers amongst judiciary, legislature and executive. On the other hand, this may lead to interference in the jurisdiction of other two functionaries of the State. In many cases, the Supreme Court has entered into the sphere of State activities while making interpretation of legislative enactments and administrative action of the State so as to serve the larger interest of society. It has entertained public interest cases in Ganga garbage cleaning, beautification of Taj Mahal, stoppage of cutting of lime stones in the Mussoorie hills, stopping of polluting industry at Agra, cases of fighting diseases like dengue and dropsy, taking care of the plight of under trial prisoners, giving direction for grant of free legal services to the needy and down trodden, speedy trial of cases and rehabilitation of bonded and child labourers and a host of other issues of public policy like health, drinking water, sanitation, checking of air and water pollution and protection of environment from degradation.
These are issues of significance on which the Supreme Court in recent years has come down heavily on the Government and legislature reminding of their duty and obligation under the constitution. It is worthwhile to mention that judicial supremacy and the concept of judicial review was never contemplated by the founding fathers of the constitution and it has been acquired by the higher courts in exercise of their writ jurisdiction over the years. This is high time that judiciary should exercise restraint in looking into the affairs of other two functionaries of the governance unless otherwise called upon to decide certain issues. Rather the judiciary should allow other organs of the State to work freely and fearlessly or else they would develop lethargy and sense of dependence which ultimately would lead to indolence, apathy and inertia on the part of legislature and executive. They will shirk their responsibility with a fond hope that judiciary will correct and rectify their acts of omission and commission. This is not a healthy trend in democratic governance. Each organ of the State has to discharge their constitutional obligations assigned to them.
The USA is a classic land of judicial review. This dates back to the famous case of Marbury –v- adison in 1803 where Chief Justice John Marshall of US Supreme Court interpreted the dictum of “due process of law” prescribed by the American constitution. He emphatically pronounced that “it is the province of judicial department to say what the law is”. That is the reason for which the American Supreme Court has been described as the third Chamber of the Congress. In our constitutional arrangement, the position is different where judicial review has an extra constitutional growth.
In Murbury case, it has been interpreted that due process of law means what is just, proper and reasonable and every executive action and piece of legislation has to be judged on the touch stone of reasonableness. In other words, this means it must adhere to the principles of natural justice. long after, in the famous Menka Gandhi’s Pass Port impounding case in the year 1978, our Supreme Court imported the American doctrine of due process of law decided in the Marbury case both in essence and spirit and applied the same to our constitutional system explained as “procedure established by law” employed in Article-21. The article emphatically says that “no person shall be deprived of his life or personal liberty except according to procedure established by law. In Menka’s case, it has been held by the apex court for the first time that the word “procedure” envisaged in Article-21 must be just, proper and reasonable procedure or else it will be declared ultra vires. The concept of natural justice found its best expression in Menka’s case.
Thereafter, it has become a rule of law which was unheard of when the Supreme Court decided the AK Gopalan case in 1950 while examining the propriety and constitutionality of Preventive Detention Act which was challenged where the Supreme Court refused to apply the abstract principles of natural justice although argued at the bar. It held that the word “procedure” provided in Article-21 means whether the law laid down in the PD Act confirms to constitutional provisions and nothing else. Hence keeping in mind all these constitutional developments and growth of judicial review, it is in the interest of our democratic governance that all the three organs of the State should discharge their constitutional obligation assigned by the constitution.
All said and done, the courts have to devote their time to decide the back log of cases of the parties instead of entertaining enormous public interest litigation for which recently the apex court has given a direction that he who files a frivolous PIl will be sternly dealt with.
(The writer is former Professor of law, lal Bahadur Shastri National Academy of Administration,Mussoorie and former Special Judge CBI, Bhubaneswar)