A strong, independent, impartial and well-organised judiciary plays an important role in the democratic system of governance. It not only prevents the arbitrary use of governmental authority but also safeguards the rights and liberties of citizens. Moreover, under the federal form of government, the judiciary has the additional role of the guardian of the Constitution.
Doctrine of separation of power advocates independent judiciary. This Doctrine also ensures that legislature will play a leading role government, limited expenditure and limited administrative structure. and the other two organs, i.e. judiciary and administration will be neutral. The logic behind the doctrine was that legislature will take care of the interest of the majority of the population and judiciary will protect minority rights and administration has only to implement the statutes passed by the legislature.
It was in Marbury v. Madison case, that Chief Justice Marshall of the American Supreme Court in the year 1803, judicially adopted the principle of judicial review by declaring 'constitution is what Judges say it is'. This doctrine of judicial review as propounded by Chief Justice Marshall has reiterated by the judge of repute like Taney, even Hungnes, Harlan, Stane, Warren and Burger. Thus it can be concluded that the idea of judicial review sparked in England but was adopted as a jurisprudential concept only in the USA.
A comparatively recent development in the judicial field is the emergence of judicial activism which is essentially action by the judiciary to realise social justice. According to Justice P.N. Bhagwati, it is nothing but another form of constitutionalism which is concerned with substantivisation of social justice. It tries to free the judiciary from constraints of traditional judicial processes in the interests of social justice and permits or rather enjoins a more dynamic interpretation of the social values enshrined in the Constitution, beyond what the framers of constitution had contemplated.
Judicial activism is not a new phenomenon, way back in 1893, Justice Mahmood of the Allahabad High Court delivered a dissenting judgement which served the seed for judicial activism in India. It was a case of an under trial who could not afford to engage a lawyer. So the question was whether the court could decide his case by merely looking his papers. Justice Mahmood held that the precondition of the case being heard would be fulfilled only when somebody speaks.
The expression activism lexical as well as ordinary parlance, means 'being active', doing things with decision and the expression activism should mean one who favours intensified activities. In this sense every Judge is, or at least, should be an activist, as Justice Krishna lyer observed, every judge is an activist either on the forward gear or on the reverse.
The activity of Judiciary can be of two types, i.e. either in support of the legislative and the executive policy choices or in opposition to them. But it is the latter pattern which is usually understood as judicial activism. The essence of true judicial activism is the rendering of decisions which are in tune with the temper and tempo of the times.
Hence an activist judge activates the legal mechanism and makes it play a vital role in socio-economic process. Activism on the part of the judiciary furthers the cause of social change or articulates the concept such as liberty, equality or justice. In contrast to the traditional concept of judiciary as a mere umpire, it works as an active catalyst in the constitutional scheme. Therefore, judicial activism refers to the power of judicial review dealing with the issues which they have traditionally not touched.
PIL result of Judicial Review
Judicial review is not an expression exclusively used in constitutional law. Literally, it means the revision of the decree or sentence of an inferior court by a superior court. Under general law, it works through the remedies of appeal, revision and the like, as prescribed by the procedural laws of the land, irrespective of the political system which prevails.
PIL and judicial activism go hand in hand. PIL itself is the result of judicial activism. Under Article 32, violation of a fundamental right must first be shown before the Supreme Court can directly entertain a PIL matter. Besides other rights, life and personal liberty in Article 21 have been given a very wide interpretation,
Judicial review, has, however, a more technical significance in public law, particularly in countries having the written constitutions. In such countries it means that the courts have the power of testing the validity of the legislative as well as other governmental actions.
Loosening of Rules related to appeal in review have led to rise of Public interest litigation. It have become a tool for court to act as a activist in multiple issues before them, ordinarily such activism would not have been possible. The type of PIL received these days are vary varied ranging from individual liberty to government decisions to environmental issues.
Working of Judicial Activism in India
The working of the judicial decision-making during last four decades has been marked by two conflicting attitudes of judicial self restraint and judicial activism at different times. The interpretation of nature and scope of judicial review in India began with the case of A.K. Gopalan v. State of Madras, (AIR 1950 SC 27).
The decision in this case scrupulously avoided the notions of natural justice and due process and constructed the law in favour of literal judicial interpretation in India and provided a firm base for judicial self-restraint.
The guidelines set by the Supreme Court in the case of Romesh Thapar State of Madras v. Champakam Dorai Rajan (AIR 1951, SC 2261 ), where fundamental rights were made sacrosanct, (see M.S.M. Sharma v. Sri Krishna, (AIR 1959 SC 395), Shankar Prasad v. Union of India (AIR 1951 SC 458), and Sajjan Singh v. State of Rajasthan, (AIR 1965 SC 456).
"This period of 17 years (1950-67) reflected a trend of judicial self-restraint. There was no confrontation between the judiciary and the executive though tensions between the judiciary and the legislature and the executive were visible. Judicial review during this period failed to strike a happy compromise between the two extremes of legislative penchant on constitutional protection of individual liberties.
The era of judicial activism started by the Goloknath case and the Bank Nationalization case was carried forward by the Privy Purse case (Madhav Rao Sindhia v. Union of India (AIR 1970 SC 530). In recent Decades, case related to environmental jurisprudence and This widest amplitude of the court can be given to the right to life and personal liberty is most welcome. But then the point is that all the sufferings and socio-economic deprivations of the Indian People, Political mismanagement and corruption, and any others conceivable governmental action or inaction can be said to be violative of Article 21. India being a welfare State, legislation already exist on most matters (and the existing legislation can/should also be given a most comprehensive interpretation in the general public interest to covers matters not specifically provided for).