JUDICIAL ACTIVISM

by- Vaibhav Gaur

Judiciary as understood by a layman is an essential feature of a democracy but what stands out to
be more important is that it should be free and be allowed to act as per their fullest capabilities
for maintaining the justice and an egalitarian society. However this judicial independence very
often leads to the passing of judgement which may not be directly involving only all the
available precedents, statutes and laws: it may also involve in itself the conscious of the judge
and may also lead to development of a new law principle. This is what is being many-a-times
criticized or appreciated, as the situation may be, under the banner of JUDICIAL ACTIVISM.

Black’s law dictionary defines judicial activism as “philosophy of judicial decision making
whereby judges allow their personal views about public policy, among other factors, to guide
their decisions”. On the other hand David A. Strauss has argued that judicial activism can be
narrowly defined as overturning judicial precedents or the law as unconstitutional or ruling
against a preferred interpretation of constitution. The matter of debate arises when it is being
argued whether judicial activism is good or not. Opinions against it say that it leads to wrong
judgements and may cause miscarriage of the very idea of justice for it would include the point
of self experiences and opinions and that is what exactly is 5he opinion of those favoring it
saying that the opinion of judges would be of utmost relevance along with their conscience to
give a decision on which the pre existing law and principles are surrounded by a mist. Taking the
example of Vishakha Case, the judges did come up with certain guidelines and hence brought up
the new law to fill the gap which was existing in the legislations at that time.

There are cases and statements by the people classifying and explaining certain decisions of the
court using the term ‘judicial activism’ if they do not like them. Howsoever had there been no
concept of reinterpretation of constitution or the emergence of new theories or for that [particular
matter the impact of the opinions of the judges, India would have not got historic and landmark
judgements like that on right to privacy or he right to die with dignity.

While talking of judicial activism, it is the judicial accountability and judicial independence
which are questioned and answered in the process. In the Indian context specifically, Judiciary is
independent of any influence as was seen during the time of emergency when the government
tried the same. Moreover the judiciary is also accountable and this is ensured by the checks and
balance system where the parliament has the right to pass a law or a bill against the decision of
judiciary thereby ensuring accountability along with the freedom.

Hence, judicial activism be thought of as a way of generation of new laws keeping in mind that
law is organic and must grow and also it is an efficient way of filling the gaps which exist in the
legislations while maintaining a balance.