Judicial Activism
Judicial Activism refers where the judges take decisions on the basis of their political or personal views. Here, the judges do not act according to the traditional precedents and also the existing laws. It is antonymous to judicial restraint. It is a dynamic process of the outlook of judicial proceedings. This is basically because of the changing social scenarios.
In other words, judicial activism means to elucidate the existing laws so that the current requirement of exercising the powers of executive and legislative. They should not be over exercising or under exercising their powers and should be in control. According to the Justice Markendey Katju, judicial activism is using the judicial power to impose what is beneficial for the society in general and people at large.
Article 21 and Judicial Activism
The concept of judicial activism is used mostly while interpreting Article 21 of the Indian Constitution. Article 21 states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. There are many different rights, in this particular Article. For eg. it includes right to clean environment, right to privacy, right to speedy trial, right to legal aid, etc. The judges while giving decisions on these categories of rights which are specifically not mentioned in the Article but form an important part of Article 21. But, do apply their judicial mind.
Separation of Powers
Separation of Powers is the principle in which the three organs of the Government i.e Legislative, Executive and Judiciary are independent and superior in their own respective functions. Accordingly, one branch will not interfere in the working of the other branch. Though this principle is not expressly mentioned in the Constitution but India adheres to the principle of Separation of Powers. Judicial Activism violates this principle as judiciary intervenes with the functionary of legislative and executive by making new laws.
The important question which can be raised here is that whether the laws made by the judiciary are laws within the ambit of the functions of the judiciary. In other words whether the laws made by the judiciary should be treated as ‘laws’. In the case of Golaknath vs. the State of Punjab, the Supreme Court held that the fundamental rights cannot be amended. It was said so even though there is no such restriction in Article 368. On the other hand, in the case of Keshvananda Bharti vs. the State of Kerela, the Supreme Court held that the fundamental rights of the Constitution can be amended. However, the basic structure of the Constitution should be adhered to. What exactly is basic structure is still not specified, however, many cases verdicts have tried to explain it.
The Crux
Though judicial activism acts as a limitation for the principle of Separation of Powers. But, it also acts as a protector and guardian of rights and final interpreter of the constitution. It has vested with ultimate power to strike down or expands various provisions of the constitution and existing laws. It can be termed as a damage control exercise which is used for a temporary and only for specific purposes.