In a rare display of judicial statesmanship asserting the power of the Court to review the actions of the Congress and the Executive, Chief Justice Marshall declined the relief on the ground of the certain section of the Act, on the ground of which the claim made by Marbury, was unconstitutional, since it conferred in violation of the American Constitution, original jurisdiction on the Supreme Court to issue writs of mandamus. He observed that the Constitution was the fundamental and paramount law of the nation and ‘it is for the court to say what the law is’.
He concluded that the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written Constitutions. That a law repugnant to the Constitution is void and that the courts as well as other departments are bound by that instrument. If there was a conflict between a law made by the Congress and the provisions in the Constitution, it was the duty of the Court to enforce the Constitution and ignore the law. Thus, the twin concepts of judicial review and judicial activism were bora.
In India judicial activism was made possible by PIL (Public Interest Litigation). Generally speaking, before the Court takes up a matter for adjudication, it must be satisfied that the person who approaches it has sufficient interest in the matter. It was made so in favour of social action and the court accepts its validity and steps in to set things right. Ideologically, such litigation and judicial intervention born of it has transformed the classical liberal rights model enshrined in the Constitution into a paradigm provided ‘rights’. Undoubtedly, such litigation has provided an ordinary man an access to the apex court of the country.
It has in a way democratised the judicial process. Furthermore, the PIL has contributed to the rise of a form of judicial scrutiny of each and every governmental institution ranging from hospitals, prisons, manufacturing units covering issues of health, environment, safety, security, privacy and welfare, etc.
Judicial activism has been a very frequent and common phenomenon during one and a half decade. It is said to have been born in India in 1986. Its credit goes to Justice P.N. Bhagwati who introduced the tradition of hearing on PIL even on a postcard. Justice Bhagwati has clearly stated, “The Supreme Court has adopted a pro-active approach for the last two years, particularly, having regards to the peculiar socio-economic conditions prevailing in the country.” Thus, judicial activism was born out of a public litigation appeal. Judicial activism is developed in each and every aspect of life, including social, economic, political, religious, educational, etc. Undoubtedly, it has strengthened the faith of masses in the judiciary of the country.
A polity usually consists of three things-Executive, Judiciary and Legislature. All of them have their own well- defined and well-laid roles in the Constitution. When any of these wings of the government fails to dispense with its duties properly or refuses to comply with the statutory provisions, the judiciary has to intervene. Justice J.S. Verma, the former Chief Justice of India has this view in this regard, “Judicial activism is required only when there is inertia in others.
If everyone else is working, we do not have to step in.” These words of Justice Verma clearly define the situation in which judicial activism is required. It would not be out of place to mention that in recent past when there were news of various scams and scandals, the executive did not take proper action against those bureaucrats and politicians involved in them. In such situations, the judiciary has to go beyond its jurisdiction to ensure justice and build public faith in constitutional bodies.
Justice P.B. Sawant, former Justice of the Supreme Court says, “It is circumstances which compel it to intervene and assert its role as the guardian of the law when the law is not respected by those who ought to enforce it.” Thus, it is clear that when the executive is lax or the legislators lack initiative to mend outdated laws or bring about changes as per the changing socio-economic conditions, or remain impervious to public pressure to bring about a change when public interest clashes with the members’ collective self-interest, the judiciary is forced to step in as the guardian of the Constitution.
As Nikhil Chakravarty has observed, “There are cases in which the intervention by the judiciary may seem unusual, but we are passing through abnormal times, and the judiciary is the organ of the Constitution which alone has the authority to interpret the Constitution.” The judiciary is enjoined to attend to the difficult task of seeing to it that institutions, groups, and individuals do not cross the limits.
In recent years, as the incumbents of the Parliament have become less representative of the will of the people, there is a growing sense of frustration in people towards the democratic process and their faith to some extent has been shaken in present system of functioning of government. The reaction of the ordinary citizens is manifested in two ways-one group which constitutes the majority, has chosen to look upon these developments as an unavoidable feature and has adapted itself to these uncertainties, while continuing to bemoan its destiny, while the other group, which constitutes a very small minority, has chosen a more positive and innovative approach and has sought to achieve its objectives through judiciary.
This it does by approaching public spirited organisations and bodies, who, in turn, file public interest cases before the courts. This situation can be avoided if the issues were properly handled by the Parliament and the people were kept informed of developments. When such citizens raise grave constitutional issues and exercise their fundamental rights in invoking the jurisdiction, the Supreme Court is left with little choice but to act. A.M. Ahmadi, former Chief Justice of India has held this view, “The present situation is not really a case of one democratic institution, trying to exert itself, over another, rather, it is a case of citizens finding new ways of expressing their concern for events occurring at the national level, and exerting their involvement in the democratic process.”
The permanent values embodied in the Constitution need interpretations in the context of the changing social and economic scenario. The court undertakes a dedicate task of reconciling with the changing situations and the resultant needs. It is the duty of the executive to implement faithfully the laws made by the legislature. When the executive fails to discharge its obligations, it becomes the primordial duty of judiciary to compel the executive to perform its lawful functions. In the recent times much of the criticism aired against the judiciary concerns this area.
When crimes are committed by men in power and attempts are made to conceal them by rendering the official machinery ineffective, recourse to judiciary becomes inevitable. It becomes the duty of the judiciary to take cognizance of the executive’s lapses and issue appropriate direction as to the method and manner in which the executive should act as ordained by the Constitution and the law. If the judiciary fails to respond, it would be guilty of violating the Constitution, treason indeed when all the three organs of the State-the legislature, the executive and the judiciary owe their existence to the Constitution, no single organ can claim immunity from accountability.
This new jurisprudence in the form of judicial activism has no doubt, contributed in a great measure to the well-being of the society. People, in general, now firmly believe that if any institution or authority acts in a manner, not permitted by the Constitution, the judiciary will step in to set right the wrong.
However, judiciary has to work within the parameters laid down by the Constitution without affecting the basic structures of any of the government’s organs. Reconciliation of the permanent value embodied in the Constitution with the transitional and changing requirements of society must not result in undermining the integrity of the Constitution. Any attempt leading to such a consequence would destroy the very structure of the constitutional institutions. Conscious of the primordial fact that the Constitution is the supreme document the mechanism under which laws must be made and governance of the country carried on, the judiciary must play its activist role. No constitutional value propounded by the judiciary should run counter to any explicitly stated constitutional obligations or rights in the name of doing justice and taking shelter under institutional self-righteousness.
The judiciary cannot act in a manner disturbing the delicate balance between the three wings of the State. According to Justice J.S. Verma, “Judicial activism and judicial restraint are the two faces of the same coin. Self- discipline is to be practised strictly by the members of the judiciary and the judges must refrain from commenting on policy matters.” Warning against the overactivism of judiciary, Justice H.R. Khanna said, “Special responsibility devolves upon the judges to avoid the overactivist role and to ensure that they do not overstep or trespass upon the sphere marked for the other wings of the State.” However, responsibility lies with the aware citizens of the country to help the judiciary in this regard. Above all, the media has a prominent role in educating the public and ensuring an efficient and smooth administration.