The concept of ‘Judicial Activism’ connotes the assertive role played by the Judiciary to force the other organs of the government to discharge their assigned constitutional function towards the people. It has helped in reinforcing the strength of democracy and reaffirm the faith of public in the rule of law. It gained popularity in 1990s and has greatly contributed to the enhancement of powers and prestige of Supreme Court. As the executive and the legislative bodies of the government were not discharging their constitutional duties, the judiciary assumed a more active role.
There are two theories: Declaratory Theory & Law-Making Theory
The former states that Judges only declare the existing law and no new law has been created by them and their province is to ascertain ‘what law is’; while the latter one states that Judges do make law but not in the as the legislative body intends to, but while interpreting the Constitution they do give a new shape to an existing law which is no less than making a law.
Judicial Activism emanates from the power of Judicial Review and is enjoyed by the Supreme Court and the High Court, the best example of Law-making theory is ‘PUBLIC INTEREST LITIGATION’ and there is no doubt that the popularity of Judicial Activism is owed to ‘PIL”
Although, the concept of PIL was evolved through the process of Judicial Activism under the umbrella of Article 32 of the Constitution which allows Supreme Court to interfere whenever and wherever any injustice is caused or being caused, by state action or, to poor and helpless persons who cannot approach the court. But it is pertinent to know that till now PIL is nowhere provided in the constitution. One of the main features of our Indian Constitution is its federal nature, i.e. Legislature, Executive and Judiciary cannot interfere in each other’s function.
If we truly believe that PIL is a great way of approaching the Supreme Court for a remedy in the interest of public and indigent person then why aren’t legislative bodies are taking the responsibility of discharging their duties.
Judicial Activism seems to be a welcome measure for the short-run, but if it is carried out for a longer period of time, it may destroy the concept of separation of power which may further result into failure of Constitutional Mechanism. Therefore, Judiciary should employ self-restraint, evolve a code of ethics which is to be used as last resort when all other attempts have failed to force the legislature and executive to discharge their duties.