Is Judicial Activism is transforming into Judicial Governance?

The Indian democracy is based on its three pillars that are Legislature, Executive and Judiciary. The separation of powers is an essential element of the Constitution. Each of them has their own significance to act in the welfare of the commons. From the very first, at the time of independence, the initial idea of making India the biggest democracy took its path with these pillars.

Tho, legislature performs an important role to govern the nation, but not only the Legislature, Judiciary also took hands to govern the nation and this can be seen by last few decades. How? Let’s discuss on such issues.

Judicial Activism

Indian Judiciary not only performs its function in solving disputes and to passing judgments, it also has some special role to strengthen the democracy.

Judicial Activism is the term used to better define this importance. It determines the active participation of the courts whenever the Executive and Legislative bodies fail in the function. Judiciary took the charges in such a time and establishes the confidence in the Constitution and democracy. Whenever citizens find threats to their rights and freedom, they look up to the Judiciary and at that instance, court acts as the ‘Ideal.’

Constitution of India has given Judiciary enough scope for active participation. It protects the rights of citizens and forces the Legislature and Executive to discharge their constitutional duties in the social promotion, due to which the Judiciary called ‘Custodian of the Constitution.’

Its work in the very early days like 1950s and 1960s to protect property rights by opposing the Executive’s attempt of the abridge them but later, the priorities of Judiciary becomes the promotion of civil liberties and safeguarding the political rights.

To maintain the principle of supremacy of the constitution, federal equilibrium and protection of Fundamental rights, the term ‘Judicial Review’ grants a wider scope to the courts. The Due process of Law is such a source that supports the activation of Judiciary to interrupt the messed up style and functioning of Legislature. It performs its task as a watch guard of the legislature proceedings. It is said that in India, Constitution is supreme and that a statute law to be valid, must be conformity with the constitutional requirements and it is for the Judiciary to decide whether any enactment is constitutional or not. Hence, gaining adequate source of power, judiciary used it in various cases like Golaknatha case, Keshavananda Bharati case, Minerva Mills case etc. and established the ‘Judicial Review’ as “Basic structure of the Constitution that cannot be curtailed or excluded even by a constitutional amendment.” However, clashes can be seen between Judiciary and Executive at the time of Indira Gandhi’s government. Some provisions of the amendments like 25, 39 and 42 were challenged in the Court and sustained by the Court.

Public Interest Litigation (PIL) is one of the major part of the Judicial Activism. Its purpose is to enforce the general interest of the public whenever their legal rights and liberties are affected by the Legislative proceedings, easing the effective access to justice to socially and economically weaker section of the society. In present, the Three Farmer Laws, there are three sets of petitions: one is challenging the constitutionality of the laws and the others are with regard to the protests. None of them ask the court to negotiate between the two parties but the court put a stay order on the bills saying that the Court is putting a stay on these farmers’ laws because they may assuage the hurt feelings of the farmers. But it can be noted that none of the petitions were put in the same reason and this shows the encroachment on the powers of executive by the Judiciary.

In 2014, the National Judicial Appointments Commission under 99^th amendment was declared as null and void by the judiciary in which the executive body was also taking part in the appointment of judges of the court, but it was a kind of harm on judicial power. It goes with the arrangement of self-appointment and hence, continued the ‘Collegium System.’

A balance of power requires in the democracy, so that this system may not fail. At time, when the Executive and Legislature neglect the citizens and seems run out, the Judiciary behaves as the ‘Guardian’ to equalize the powers and to safeguard the Constitution. Nevertheless it can’t be say that the active role of Judiciary took the form of Governance at some instances. It is on a grey shade, neither pure black nor pure white means it works as the agent of the Constitution but it starts to perform governance when the other bodies unsuccessful to do so.