Judicial Activism

• Intro:Lord Bryce: Therese is no better test of excellence of the govt than the performance of its judicial system.

• Phases of judiciary-
• 1950-1967: positivist reading(literal reading) of the constitution (legal positivism)
• 1967-77: Challenger to executive overreach
• Judicial activism particularly after KIeshwananda Bharati

• Judiciary as an institution:
• Admirer-
1. Prof Upendra Baxi-
1. says it has done chemotherapy of carcinogenic indian politics.
2. From SC of India to SC of Indians.
3. Says SC is essentially acting as the institution of governance and not merely settling disputes
   
• Critic
1. 
   
   
   P B Mehta-
1. calls it a paradoxical institution( want others to be accountable but khud nahi).
2. Called judiciary’s use of powers of contempt as “judicial barbarism.”
3. Calls it promise of uncertainty, ie it keeps changing its views in subsequent judgments
4.  India is an example of judicial sovereignty.
5. Mentions "post democracy" ie strengthening of non elected institutions.
2. Lavanya Rajamani of Centre for policy research- judiciary is less enthusiastic about it's own work and more enthusiastic about the works of the executive where it has no expertise
   

• Judicial activism-
• The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism.
• Article 36(4) includes judiciary in the definition of state and article 37 puts obligation on state to implement the DPSP.

• 
  Kalpana Kannabiran: India’s judiciary is witnessing the fall of ‘literal legalism’ and the advent of age of judicial activism, where Court is seen as a political institution that can solve social disagreement.
• Methods of JA:
• judicial review under Art 13
• basic structure doctrine
• PIL
• Powers to issue writs under Art 32
• power to do complete justice under Art 142.
• In the book “rethinking public institutions in India” PB Mehta and Devesh Kapur argue that it is the void created by the failure of executive and legislature in discharging their responsibilities that has led to emergence of judiciary as a political institution
• Bhikhu parekh
  
  - calls India as classic case of judicial cogovernance.
• Conventional school
1. Lord Jowitt- indecent for judges to make laws
   
2. Former justice Bharucha - judiciary neither has the resources nor the experitise to micromanage the administrative leviathan
   
3. Markandey Katju- judges should tell if there is one, Don't make if there is none.
   
4. Supreme Court while quoting Montesquieu's spirit of laws said separation of powers is violated by judiciary's encroachment on the powers of other two organs.

• Contemporary school
1. Lord Reed- interpretation is a creative function. Judges always make law when they tell the law.
   
2. P N Bhagwati-it is like running away from responsibilities
   
3. Former CJI RC Lahoti calls JA holding the executive responsible as an example of judicial statesmanship
   

• Eg of JA-
1. liquor ban on highway
2. Vishakha guidelines
3. Lily Thomas case
4. In 2001, SC said Right to food and nutrition is a right under article 21.
5. Covid-
1. Divert industrial oxygen for medical use
2. Asking govt to send affidavit on its vaccine policy and why it has dual pricing
3. Asking govt to give details on scheme for orphaned children due to covid

• Eg of judicial overreach:  this happens when SC cross a legal Laxman Rekha.
1. Orders centre to create new policy for drought
2. Allahabad HC directing Lockdown in UP
3. Orders govt to set up bad loans panel
4. Reforming bcci
5. The role of judiciary must be of an alarm clock and not of timekeeper- Nani Palkhiwala
6. PB Mehta calls it an ex of Weimer judiciary- when the judiciary starts performing role of the executive
7. Lord Sumption had remarked- The rule of law does not mean that every human problem calls for a legal solution.”
8. Judiciary can employ the doctrine of “presumption of constitutionality” and exercise restraint on the presumption that legislature is a widely representative and deliberative organ and thus understands and correctly appreciates the needs of its own people
• CONCLUSION: In the words of JL Nehru” Indian judiciary will not be a mere spectator rather an active participant in India's social revolution.” Judicial review is needed but should not turn to judicial over reach

• Basic structure chronology :
• Champakam Dorairajan 1951: SC said Art 13 does not cover Constitutional amendment and hence parliament can amaned FR by constiutional amendment
• Golaknath case 1967: SC said FR are sacrosanct
• 24th and 25thAA parliament limited the power of judiciary to review its legislation and said law does not include amendment and hence cannot be challenged in supreme court. Made assent of prez mandatory on amendments. Brought article 31C that made article 14 and 19 subsidiary to article 39b and 39 c.
• then came keswananda bharti case 1973. 
• The doctrine of basic structure has made judiciary the most powerful institution. Even american SC cant review the constitutional amendments.
• through BS it assumes the role of super legislature( constituent assembly)
• PBM says it is like a damocles sword hanging over the neck of indian parliament.
• Zia mody
  
  book- 10 judgements that changed India said through basic structure, judiciary chose uncertain democracy over certain authoritarianism.

• Satya Prakash-legal editor, The Tribune
  
   Calls basic strucutre as theological interpretation of constitution. Says constitution is based on will of the people and people must be given a chance to change it.

• Judicial reforms from niti SFNI@75

1. Filling vacancies. We would require 75000 judges to deal with 15cr cases by 2024.
2. 68% of undertrials in jail or awaiting trial
3. A huge backlog of 3 crore pending cases
4. Regional benches of Supreme Court as suggested by Vice President of India
5. Merge and rationalise tribunal to enhance efficiency
6. Indian courts and tribunals services and All India judicial service examination to maintain high standards in judiciary judiciary
7. Continuous training in accordance with the international best practices
8. Greater use of technology in the working of courts
9. Improving criminal justice system as per malimath commiitte
10. Collegium is the victim of its own birth pangs- d y chandrachud.
11. Office of CJI now under RTI.
12. 120th law commission said 50 judges per 10 lakh, now we have 20 judges
13. Special leave petition under art 136 that allows appeal in SC after the judgement of a lower court must not be allowed to be misused.
14. 

• NCRWC
• Retirement age of judges of High Court and Supreme Court should be increased to 65 and 68 respectively
• No court other than Supreme Court and High Court should have the power to punish for contempt of itself
• Each High Court should prepare a plan for time bound clearance of pending cases. No case to be remain pending for more than one year
• The system of plea bargaining should be introduced as part of the process of decriminalisation

• In conclusion- vinod Rai in his book rethinking..... Says when all else was crumbling, the court, time and again, came to the rescue of the nation, there being the course corrector.