AMITY UNIVERSITY

MADHYA PRADESH

MEDIA LAW
TOPIC:- JUDICIAL ACTIVISM

SUBMITTED BY:- SUBMITTED TO:-

Harshit Gupta, Mr. Ishu Gupta
B.B.A LL.B,9th Sem. Guest Faculty, ALS
Judicial Activism
Black's Law Dictionary define judicial activism as:
" A philosophy of judicial decision - making whereby
judges allow their personal views about public policy,
among others factors, to guide their decisions, usually with
the suggestion that adherents of this philosophy tend to
find constitutional violations and are willing to ignore
precedent."
History
Judicial Activism came from ' Marbury v. Madison', 1803,
USA. So the first time this Judicial Activism evolved in US
and this term was coined by ' Arthur Schlesinger Jr.' in
1947. This educator wrote article title to ' The Supreme
Court 1947' which was published in a very famous
magazine of US named " Fortune".
In India
In 1947, India just became independent so we weren't that
much advanced or modern, so gradually in 1970's this
doctrine of Judicial Activism was announced in India
followed by Public Interest Litigation (PIL).
So there are few renowned judges who can be given
credit in bringing this doctrine in our country like
Honourable Justice Iyer, Justice PN Bhagwati, Justice
Reddy and Justice Desai.
Aristotle gave the concept of :-
(i) Executive :- The executive is the organ of government
that implements the laws enacted by the legislature and
enforces the will of the state.
(ii) Legislature :- The main function of Legislature is to
enact new laws.
(iii) Judiciary:- The main function of judiciary is to
implement the law, settles the disputes and provide justice
to all the citizens
Montesquieu gave the concept of :-
Separation of powers :- Separation of power divides the
structure of governance into three branches i.e. Executive,
Legislature, Judiciary.
The main objective of separation of power is to prevent the
wrongful use of power by a single person.
In India we use ' separation of functions'.
Role of Judiciary:-
(i) Interpreter of Constitution
(ii) Protector of Fundamental Rights
(iii) Resolution of Disputes
Why Judicial Activism?
(i) To prevent tyranny of Government
(ii) To ensure Doctrine of Checks and Balance
Encroaching in the domain of Legislature is known as
Judicial Activism.
Methods of Encroaching in the domain of Legislature:-
(i) Public Interest Litigation (PIL) :-
Public interest Litigation (PIL) means litigation filed in a
court of law, for the protection of “Public Interest".
India's First PIL Case:-
HUSSAINARA KHATOON V. HOME SECRETARY,
STATE OF BIHAR, 1979.
Members - Justice Krishna Iyer, Justice Pathak
Judgement by - Justice P.N Bhagwati
Facts and background of the case:-
This case is the first case of Public Interest Litigation.
This case is the landmark case related to prisoner's trials.
The then prevailing laws in India permitted that, in case of
commission of an offence, only the victim or a relative of
the victim could file a petition before the court. Ignoring
this mandate, a writ - petition of habeas corpus came
before the supreme court, filed by Pushpa Kapila
Hingorani, along with her husband, Nirmal Hingorani.
Kapila was an Indian Lawyer who wanted to bring forth the
conditions of the under trial prisoners of Bihar, which had
been highlighted earlier in an article published in Indian
Express in 1979.
The writ petition filed by Kapila was the first case of PIL,
and it demanded the release of 17 under trial prisoners,
which were mentioned in the same article of 1979.
Judgement
Held by : Justice P.N Bhagwati.
In the case of Hussainara Khatoon V. Home Secretary,
State of Bihar, 19th Feb 1979, the court held that, it is a
shame on judicial system that keeps children, men and
women behind bars without any fair trial. The court must
have given a chance to the respondent to appear before
the court but the court have failed to do so. The court finds
the newspaper cutting presented in the court to be valid
evidence and hence grant bail to the prisoners whose
names are mentioned in the petition.
(ii) By Article 32 and 226 with Article 13 is the way to
encroaching in the domain of Legislature.
(iii) Article 142:- Article 142 provides discretionary power
to the Supreme Court as it states that the SC in the
exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in
any cause or matter pending before it.
(iv) Legal Vaccum:-
The vaccum is created by the inactivity, incompetence,
negligence or corruption among the legislature and the
executive, the judiciary is left with no other alternative but
to expand its horizons and fill ups.
Negatives of Judicial Activism
(i) Personal opinion biased.
(ii) Effective functioning not happen.