Judicial Activism in public policy-making is a necessary evil? let’s discuss.
Judicial Activism is a way of exercising judicial power that motivates judges to depart from commonly practiced strict adherence to judicial precedent in favor of progressive and new social policies. There are usually decisions that call for social engineering, and they sometimes involve intrusion into the legislative and executive processes. Judicial activism can also be seen as proactive action of the court to deliver justice. In political rhetoric, is used as a pejorative. To describe judges as activists in this sense is to argue that they decide cases based on their policy preferences rather than a faithful interpretation of the law, thus abandoning the impartial judicial role and activism”legislating from the bench.”
Indian constitution does not provide for the strict separation of power; instead, it provides separation of functions. So, judicial activism is somehow supported by the constitution. That is why in India, it is judicial enthusiasm rather than judicial activism. In India, the doctrine of judicial activism was introduced in the mid-1970s. In the early 1980s, Public Interest Litigation (PIL) became the strategic arm of judicial activism in India. In many instances, the judiciary took over the responsibility of policy formulation from the legislative and policy implementation from the executive.
Judicial activism has always been a source of heated debate, especially in the arena of public policy. There are both positive and negative arguments regarding the effect of judicial activism in the public policy domain. There are two theories behind the whole concept as far as the origin and evolution of judicial activism go. They are (i) Theory of Vacuum Filling and (ii) Theory of Social Want.
The Theory of Vacuum Filling posits that any institution’s lack of action or laziness results in a power vacuum in the governance system. For example, the Supreme Court of India stipulated the “Vishaka Guidelines” regarding sexual harassment of women at the workplace. The legislature did not have any policy regarding this issue then. So, the judiciary took over the responsibility.
The Theory of Social Want states that judicial activism emerged due to the existing legislation’s failure to cope with the existing situations and problems in the country. For example, the Supreme court’s order on Delhi pollution can be seen in this manner. The court can act on this case because it arises from a legal position. Pollution has a lasting effect on the health and wellbeing of the citizens. So, it comes under the Right to life (Article 21), and because of this, the judiciary can take action on this matter.
The critiques of judicial activism have pointed out some concerns regarding public policy. Firstly, the judiciary is not democratically elected as the legislature. So, the legislature is one and only responsible for formulating public policy. Secondly, the government can appoint subject matter experts in the particular sector and use their expertise in formulating policies. Judiciary does not have that expertise. So, it is not rational to intervene in those policy questions. For example, the supreme court in 2016 banned a particular mobile tower as it said that it was harmful to the environment. Is this the court’s decision to make? Do they have any expertise to intervene in this matter? Thirdly, the judiciary lacks experience of ground realities. For example, in 2017, the supreme court ordered a ban on alcohol counters within 500 meters of any highway. However, the states and the executives never implemented it because it was not feasible. So, again the question arises if the judiciary is in a position to make rules in these kinds of matters. The debate is still going on.
Despite these criticisms, judicial activism is doing better than the shortcomings. The judiciary acts on the constitutional boundaries, and it has its checks and balances. If any order or rule is not working, the executives and the government can come back to the judiciary, and the court can review or repeal its orders. The Indian judiciary has that elasticity. Moreover, in a country like India, the mass has a tremendous sense of trust and confidence in the judiciary. Judicial activism is the tool to strengthen that confidence and act on delivering justice. So, I do not know if judicial activism is evil, but it certainly is necessary for a democracy like India.
Originally published at opcept.blogspot.com on February 3, 2022.
