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It is alleged that the Supreme Court has turned into a hyperactive legislator in recent rulings. Both the legislation and the wide division of authority between the three branches of government are not being upheld. “Our Constitution does not contemplate absorption, by one organ or component of the state, of powers that basically belong to another,” the court stated in Ram Jawaya v. The State of Punjab (1955). This suggests that the legislative, executive, and judicial branches of government should have a significant separation of powers under the Constitution and that one branch should not infringe on the authority of another. The Constitution’s delicate balance would be disturbed, and there would be anarchy.

Judicial activism refers to a method of applying court review or a description of a particular judicial decision in which the judge was seen to be more likely to rule on constitutional issues and to invalidate legislative or executive actions. Although debates over the proper role of the judiciary date back to the founding of the American republic, American historian Arthur M. Schlesinger, Jr. appears to be the first to coin the phrase “judicial activism” in a 1947 Fortune article. Even though the term is frequently used to describe a legal decision or philosophical perspective, its use can be perplexing because there are many different interpretations of what it means. Furthermore, even when speakers agree on the intended meaning, they frequently disagree on whether the term accurately captures it.

The term “activist” is used often in both political speech and academic writing. In academic settings, activism is most often used to describe a judge’s readiness to nullify a decision made by another government agency or reverse a court ruling without making any implicit judgements about the decision’s correctness or incorrectness. Activist judges uphold their own interpretations of the requirements of the constitution rather than relying on the judgements of other government officials or prior courts. Activism is just the antithesis of restraint in this regard. It’s not disparaging, and studies show that it doesn’t have a lingering political undertone. Both liberal and conservative judges may be active in this area, despite the fact that conservative judges have been more likely to invalidate federal legislation and liberal judges have been more likely to do so.

If a court ruling resolves a legal problem that is not required for the case’s resolution, it may also be referred as be activist in the procedural sense. The Supreme Court’s contentious decision in Citizens United v. Federal Election Commission (2010), which ultimately struck down provisions of federal election law that had limited corporate and union spending on political advertisements, is a contentious example of alleged extreme procedural activism. The Court requested re-argument of the case on the basis of new questions following oral arguments because it anticipated that a favourable decision on the previously presented questions would have left the provisions in place and undermined its belief that “this corporation [Citizens United] has a constitutional right to speak on this subject. “Procedural activism” is typically regarded as improper at the federal level in the United States and in nations that adopt the U.S. system (such as Kenya and New Zealand), on the grounds that the role of courts is to settle actual conflicts between opposing parties rather than to make general legal rulings. However, courts are allowed to make decisions even when there are no disputes or opposing parties in states that use different systems (such as Austria, France, Germany, South Korea, Spain, and some U.S. states).[1]

Every citizen has the right to directly file a case with the Supreme Court of India for the enforcement of their fundamental rights, according to Article 32 of the Indian Constitution. A Supreme Court order or writ may be used to enforce any basic right protected by Article 32. As stated by the Supreme Court in Fertilizer Corporation Kamgar Union v. Union of India (1981), “it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.”

The Supreme Court’s authority under Article 32 is a significant component of the fundamental framework of the Indian Constitution. Not even in an emergency can it be stopped.

The High Courts of India are authorised under Article 226 of the Indian Constitution to make any suitable order or writ to enforce the compliance of basic rights and other legal rights. It appears in this case that the Supreme Court’s Article 32 authority is subordinate to the High Court’s Article 226 power. On Articles 32 and 226 the Indian Constitution is based. The High Court also had power over lower courts, tribunals, and special courts thanks to Article 227.

The Constitution does not encourage judicial activity; it is an invention of the judiciaries alone. When a court oversteps the bounds of the powers assigned to it in the name of judicial activism, one may conclude that the Constitution’s concept of the separation of powers is being invalidated. In addition to violating the separation of powers concept, allowing judges to make their own laws might lead to chaos in the legal system and anarchy as each judge would start making their own laws based on their whims and fancies.

By adhering to judicial discipline, a clear balance must be kept. The legislature’s responsibility is to pass laws. Legislators are obligated to fill up any holes in the legislation, and the executive branch is accountable for doing so correctly. The sole remaining responsibility for the courts is interpretation. The constitutional values can only be preserved by a fine balance between various governmental agencies.

Author’s Name: Abhijeet Raj (Guru Gobind Singh Indraprastha University, New Delhi)

[1] Britannica, ‘Judicial Activism’ (17 January 2023) <https://www.britannica.com/topic/judicial-activism> accessed 17 January 2023

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