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Mains Answer Writing

19-February-2024

Q1) “Judicial activism is an effective way to promote democratic values and social justice, especially when the other two branches of the government fail to act.” Critically examine. (250 Words/15 Marks)

ANSWER

Judicial activism is a judicial philosophy which prescribes that Courts can go beyond the strict separation of powers in the protection of the rights of citizens and the promotion of justice in society.

Judicial activism can be seen as an effective way to promote democratic values and social justice:

  1. Judicial activism restores the public faith and confidence in the political system, bridging the gaps of policy paralysis and legislative inefficiency.

E.g., role of various High Courts in fighting Covid-19 pandemic by improving oxygen management.

  1. Promoting democratic values:
  2. In Media One Judgement (2023), the supreme court put a judicial fiat against the sealed cover approach of the government.
  3. In the Anoop Baranwal case (2023), the SC devised a collegium for the appointment of the ECI, thereby making the process more democratic and broad-based.
  4. In Keshwanand Bharti case, the SC laid down the doctrine of Basic Structure, limiting the power of legislature to undermine constitutional values like federalism, secularism etc.
  5. In Maneka Gandhi case (1978), supreme court emphasized on the “due process of law”, broadening the arc of democratic values.
  6. In Lily Thomas vs UOI (2013), the SC took active steps to decriminalise the electoral politics.
  7. In UOI vs ADR, SC recognized that the right to know about the election applicants falls within the broader right of freedom of speech and expression.
  8. Interest of justice (social justice):
  9. Broadening the umbrella of social rights for LGBTQ+ community.

E.g., In Navtej Singh Johar case, the SC decriminalised homosexuality.

  1. Safai karamchari Andolan (2014) judgement called for rehabilitation, skilling, financial inclusion etc., of slum dwellers.
  2. In Consumer Education Research Centre vs UOI case (1995), the SC held that the state must ensure minimum standard of health, economic security, and civilized living to workmen.
  3. Judicial activism acts as an antidote to the executive inaction.

E.g., SC took an unprecedented step and used its power to do complete justice (Article 142) in order to appoint the Lokayukta of UP, after prolonged executive delays.

  1. Judicial activism has played an active role in widening the canvas of rights, in the process protecting individual dignity.

E.g., Vishakha guidelines recognized sexual harassment at the workplace as a violation of the fundamental right to gender justice.

  1. Judicial activism often facilitates necessary but unpopular decisions giving primacy to social good.

E.g., In 2018, M C Mehta vs UOI case, SC necessitated the use of BSVI fuel in all vehicles post March, 2020.

Even though judicial activism has bridged the gaps left behind by the executive and the legislature, critics point towards various issues associated with judicial activism:

  1. As per experts, excessive judicial activism may lead to the “tyranny of the unelected”.

E.g., SC putting a blanket ban on the use of non-green firecrackers (Arun Gopal case).

  1. Transgression of the judiciary in the matters of day-to-day governance negates separation of powers.

E.g., SC banning the sale of liquor in the National High Ways.

  1. Judiciary forays into domains where it lacks both the capacity and competency. E.g., High courts venturing into management of covid-19 crisis; former judge of SC, Markandey Katju, cautioned the judiciary against policy prescriptions by saying “tell where is there is one, don’t make where there is none”.
  2. It takes away focus from issues plaguing the judiciary.

E.g., burgeoning number of motivated PILs leading to high judicial pendency in SC and HCs.

  1. Judicial activism, pursued over-zealously, may become antithetical to the principles of democracy.

E.g., SC’s direction to mandatorily play national anthem in the cinema halls.

Judicial activism puts a check on unbridled executive/legislative actions by circumscribing them within constitutional limits. However, judicial restraint is equally important for seamless functioning of the parliamentary democracy.

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