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| Role of Indian Judiciary and The Constitutional Provisions | |||||||
| Paper Id :
16051 Submission Date :
31/08/2022 Acceptance Date :
02/11/2022 Publication Date :
07/12/2022
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| Abstract | Indian Judiciary Play the most Important Role to extent the Provison of constitution .The supreme court is the custodian of constitution . The real nature and limit of the act of the courts has since long been a matter of debate almost in all the countries regulated by written Constitutions Austin an Jurisprudence gives a very narrow view of the judicial function. Austin defined law as a command of the political sovereign and his sovereignty was indivisible and absolute, only the legislature could make law. The function of the courts was merely to declare the pre-existing law or to interpret the statutory law. The exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context of even our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances". First the term judicial activism takes on vastly different parlance depending upon who is using it. Some litical persons have termed it as Judicial Anarchy, Judicial over activism, and judicial despotism' some say that the Indian judiciary is also acting as third chamber and a super executives. But the other view is that Judiciary is doing nothing more than its plain duty respectfully I differ from the learned author A.G.Noorani's following observation in his article "Judicial Activism vs Judicial Restraint Today, rampant judicial corruption too has become a common phenomenon in India. Therefore, judicial corruption whether proved or merely suspected relating to higher judiciary particularly with reference to Justice V.Ramaswami and Chief Justice Y.K. Sabhrawal of the Supreme Court of India and Soumitra Sen of Calcutta High Court and their accountability to the State and public shall be critically discussed and examined. Thus, in the manner the entire nation embraced in realizing the Constitutional objectives of Justice, liberty and equality. Judicial activism as a tool frequently resorted to against executive has also invited allegations of its excess use not only from other quarters but from the Apex Court itself, yet, there is no doubt that judicial activism has generally addressed the interests of the common Indian citizens and materialized their constitutional rights in their favour. | ||||||
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| Keywords | Constitutional, Sovereign, Pre-existing, Activism, Phenomenon, Accountability, Judicial Cctivism, Legislature, Criticism, Custodian. | ||||||
| Introduction |
India has a single Integrated Judicial system .the judiciary in india has a pyramidal structure with the Supreme Court The real nature and limit of the function of the courts has since long been a matter of debate almost in all the countries regulated by written. Constitutions Austin an Jurisprudence gives a very narrow view of the judicial function. Austin defined law as a command of the political sovereign and his sovereignty was indivisible and absolute, only the legislature could make law. The function of the courts was merely to declare the pre-existing law or to interpret the statutory law. But on the other hand, the realist movement in the United States the latest branch of sociological Jurisprudence which concentrates on decisions of law courts, regard and contend that law is what courts say. For them, judges are the law makers. The entire common law is the creation of the English courts but is posited on the myth that the judge merely found law. Even with such self-negating perception of their own role, the English judges not only made the law but also changed it to suit entirely new conditions created by the industrial revolution.The Indian Judicial system is Managed and Administrated By Officers,Judges of Subordinate Judiciaries are Appointed By Governor On Recommendation by High Court Judges Of the High Courts and Supreme Court are appointed By the Predident of India on the Recommendation of a collegiun. |
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| Aim of study | The aim of study is commpative study of others Foreign judicial system In the United States, Judicial review of legislation became the most significant aspect of American law. Although the Constitution nowhere mentions that the Supreme Court of the united states has the power to invalidate acts of congress if they are contrary to the provisions of the Constitution, Chief Justice Marshall held in Marbury vs Madision' that such power was implied In a written Constitution. This assertion of power was criticized severely. The main thrust of the criticism was that an unelected court was to censor the legislation enacted by an elected legislature; judicial activism has always evoked varying types of responses. When the court took a series of objections to the regulation of the economy undertaken by President Roosevelt in the 1930s, the liberals criticized it as being reactionary. | ||||||
| Review of Literature | In India, the doctrine of separation of power is adopted illustratively, but the 'essence of that doctrine with the doctrine of constitutional limitation implicit in the scheme was duly recognized long back In re Delhi laws case, Separation of judiciary from the executive is mandated in Article 50 of the Constitution with the independence of judiciary as a corollary Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in the case of Indira Gandhi vs Raj Nereyen Wherein it was observed; "Thus, the exercise by the legislature of what is purely and indubitably a judicial function is Impossible to sustain in the context of even our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances" 5 he oldest remarks of active Judiciary in India can be traced for back to year 1893, when Justice Mehmood of the Allahabad High Court delivered a dissenting Judgment that sowed the seed of activism in India. It was a case of an under trial who could not afford to engage a lawyer. So the question was whether the court could decide his case by merely looking at his papers? Justice Mehmood held that the pre condition of the case being 'heard' would be fulfilled only when some body speaks So, he gave the widest possible interpretation of the relevant law and laid the foundation stone of the judicial activism.
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| Analysis | This perception changed by the time of Golak Nath vs state of Punjab, where the Supreme Court declared that fundamental rights could not be derogated from even by an amendment to the constitution, six years later in Kesavananda Bharti vs State of Kerele, case while overruling Golaknath10, the court evolved another far reaching doctrine under which parliament was denied the power to amend the Constitution in a manner that violates its basic structure. The Supreme Court also identified the power of judicial review as being part of such basic structure. Thus, the legislature could not deny Judicial Review even by a Constitutional amendment. |
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| Result and Discussion | In India During the period of emergency,
the apex Court took a very narrow view of the citizen's fundamental rights. Statutes
made by the legislature taking away a person's liberty could not be challenged
as being violative of fundamental rights. The emergency witnessed large-scale
violation of basic rights of life and liberty of the citizens. These violations
were facilitated by the enactment of Draconian statutes like the Maintenance of
Internal Security Act (MISA) and suspension of fundamental rights, The Supreme Court decision in A.
D.M.Jabalpur vs Shivkant Shukla". granted virtual Immunity to any action
of the executive affecting life and liberty of the citizen. The Judgment can
best be described, in the words of professor C.K.Allen, as the contribution of
the Supreme Court to the emergency. This judgment even questioned the role of
the Supreme Court as guardian of personal liberties. Soon after emergency, in a
significant reversal in Menka Gandhi vs Union of India 12, the Court asserted
the doctrine of substantive due process as being integral to fundamental rights
on the ground that it emanated from the scheme underlying Articles 14, 19 and
21 of the Constitution. The Court's power to strike down legislation was now
expanded to include a critical examination of a statute even on the basis of
substantive due process. Another development during the post Kesavanand phase was
an increase in executive interference With Judicial appointments to the higher
courts with oblique motives. The independence of judiciary was seriously eroded
in instances of superseding seniority in the appointment to the office of the
Chief Justice of the Supreme Court of India. The first such instance is found
in 1973 when justice A.N.Ray wasappointed Chief Justice superseding justices
Shelat, Grover, and Hegde, each of whom had concurred with the majority view in
Kesevenend." In 1976, Justice H.R.Khanna another judge of the Supreme
Court, who had dissented in the famous A.D.M Jubalpur vs Shivkant Sukle",
was superseded and Justice Beg was made Chief Justice. These instances
symbolized the government's attempts to suppress the independence and activism of
judiciary in India. The post- emergency era in India, however, witnessed a
meteoric rise in the activist role of the judiciary, especially the Supreme
Court. Not only the Court boldly struck down any illegal action of the
executive and any invalid law by a legislature, but it also evolved a very
potent measure of judicial activism in the form of Public Interest Litigation
(PIL). In late seventies and early eighties, predominant concern of Public
Interest Litigation was to provide access to justice to the disadvantaged and
oppressed groups such as bonded and child labour contract and migrant labour,
rickshaw pullers and urban slum dwellers, children languishing in jails,
victims of custodial violence and death, under trial prisoners, victims of fake
Police encounter, children of prostitutes, tribles and dalits, women in
protective homes and so on and so forth. Our national freedom movement lies in the fact that the goal it set before itself was not only to fight for the emancipation of the country from the fetters of British rule but also to reconstruct Indian society on the dynamic philosophy of socio-economic revolution freedom was not an end in itself but only a means to achieve an end, the end being to free India through a new Constitution, to feed the starving millions, to clothe the necked masses, and to give every Indian the fullest opportunity to develop himself according to his capability¹5 In its bid to accomplish the cherished goal of the founding fathers of our Constitution, the Indian government has been enacting various legislations but due to the obscured malice, the down trodden majority in India has to live in the same fetters. The growing differences between promise and performance, expectation and reality, enactment and implementation have created a feeling of helplessness and alienation. The government has proved its inability to tackle the problems of the under privileged strata of the society as their condition went on worsening. Ultimately, the marginalized masses of the people opted for the Judicial therapy to heal the ailing democracy. And, in response, the judiciary leaving behind its traditional moderate role has adopted an active role with new spirit and support of the masses. According to Prof. Upendra Baxi, "judicial activism is a response to the lawlessness of the state. Thus the third wing interpreted the existing legislation in a way to ensure the maximum human freedom, and galvanized the two other wings to act for the noble cause of public good. In a democratic society there are perhaps two approaches to Judicial perception, the judiciary can adopt a pro active approach or it can act with in the boundaries of self restraint. Judicial activism refers to the first one. The scenario of Judicial activism has undergone some significant changes with the eflux of time. Today, Public Interest Litigation has been used, as Professor S.P.Sathe in his, book Judicial Activism in India (2002) opines, sorting out mostly political controversies and their have been few cases genuinely on human right. The concern raised from time to time about excessive judicial activism prompted even the Constitution Review Commission (year 2000) to voice apprehensions that judicial activism amounted to "a slippery word which could mean a thin Justification to interfere in the governing process and that unelected elite not accountable to the people, through the interpretation of fundamental rights, might intrude into the power of the legislature." The commission also advised great wisdom and restraint on the part of judges in wielding the high power of judicial activism. The concept of Public Interest Litigation was elaborated in India in 1976 and after that the rule of locus standi was got gradually expanded. Some of the most significant areas where Public Interest Litigation has proved a boon and made an ever lasting impact can be noticed, e.g., right to a healthy environment, right to speedy trial and free legal aid, right to privacy, right to free education. |
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| Conclusion | Thus, the tradition of judicial activism that commenced in the united state with Marbury vs. Medision followed in British India by Justice Mahmood, Allahabad Highcourt in 1893 and came to the forefront in India and conspicuously in Keshavnand Bharti v. State of Kerala has taken firm roots in the Indian Soil. It has given new meanings and dimensions to the various Constitutional Rights available to the common Indian citizen and utilized them to regulate the social, economic, civil and cultural existence of the common masses. In this manner the entire nation embraced in realizing the Constitutional objectives of Justice, liberty and equality. Judicial activism as a tool frequently resorted to against executive has also invited allegations of its excess use not only from other quarters but from the Apex Court itself, yet, there is no doubt that judicial activism has generally addressed the interests of the common Indian citizens and materialized their constitutional rights in their favour. | ||||||
| Suggestions for the future Study | Thus, in the manner the entire nation embraced in realizing the Constitutional objectives of Justice, liberty and equality. Judicial activism as a tool frequently resorted to against executive has also invited allegations of its excess use not only from other quarters but from the Apex Court itself, yet, there is no doubt that judicial activism has generally addressed the interests of the common Indian citizens and materialized their constitutional rights in their favour. | ||||||
| References | 1. Dr. J.N Pandey, Constitution of India by Central Law Agency
2. P.M. Bakshi, The Constitution of India 5th Edu, Universal Law Publication
3. MR Rama Jois, M. The Legal and Constitution History of India 2014, Universal Law Publication
4. 1 Crunch (1803) 5 US 137
5. AIR 1951 SC 332
6. Chandra Mohan vs state of UP AIR 1966 SC 1987 4. AIR 1975 SC 2299
7. Ibid no. 4
8. Views Expressed by Justice J.S.Verma, Former Supreme Court Chief Justice regarding the origin of Judicial Activism in India Today, dated 15.03.1996 p. 122
9. AIR 1950 SC 27
10. AIR 1967 SC 1643
11. AIR 1973 SC 1461
12. Supra n.S4
13. AIR 1976 SC 1207
14. AIR 1978 SC 597
15. Supra no 9
16. Supra no. 11
17. M.G. Chitkara and P.L. Mehta, "Law and the poor", Ashish Publishing House, New Delhi, 1991, P.9
18. Prof. Upendra Bakshi, "on the same of not being an activist thought on Judicial Activism," Vol, 11 (3) 1984 Indian Bar Review, Page No-259.
19. M.C.Mehta vs Union of India (1987) 1 see 395
20. Kadra Phadia vs State of Bihar, AIR 1981 se 938 18.
21. People's union for civil liberties vs Union of India AIR 1997 se 568
22. JP unni Krishnan vs State of A. P. (1993) 1 sse 645
23. Neelbati Bohora vs State of Orrisa (1993) 2 sse 1946
24. Bandhua Mukti Morcha vs Union of India, AIR 1997 se 2218
25. Common cause vs Union of India, AIR 1997 se 1886
26. Surya Deva "who will Judge: A Critical purview of Judicial Activism". Delhi University Law Journal, Vol: 1, PP, 30-40 at p30.
27. Harsha Vardhana, "Judicial Activism in India Indian Journal of Politics, Vol 26, nos 1-2, 1992, PP 134-44 at P 134 |
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