Question: Judicial activism is not just a novel initiative but a necessity to protect the wider interest of the society. Critically analyse.
Answer: Judicial activism is a term that is used to describe conditions in which members of judiciary use their personal belief while executing their duties and not just the existing laws of the land. Judicial activism has managed to gain both support and opposition.
Need for judicial activism
- Uphold belief in judicial system
The actions taken by judges will instill belief of the public in our judicial system. People will approach court for solving problems that will ensure law and order.
- Plug loopholes in the system
The actions of the judge will help to plug some of the existing loopholes in the system that allows a guilty to escape punishment.
Ex: Punishing a rapist even though technically he is found not guilty.
- Voice of underprivileged
It allows the judiciary to take cases suo motu or ask the police to act on behalf of sections who are unable to approach court for justice.
Ex: Victims of human trafficking.
- Interest of society and nation
Activism will continue taking tough steps that may ultimately result in benefiting the society as well as the country on the longer run.
Ex: Asking government to impose prohibition.
Criticism of judicial activism
- Violation of rule of law
The rule of law says that judges must not go beyond what is said in the law. Activism will go beyond law and take steps based on the judge’s interpretation and belief.
- Encroach on the space of legislature and executive
Judicial activism will encroach on the space of law making and governance, which is under the legislature and executive.
Thus, judicial activism has its merits for the society. There should be provisions to differentiate judicial activism from judicial authoritarianism.