In this article, the author has defined and explained the concept of right-wing activism in the context of India using secondary data.
Judicial activism, an approach to exercising judicial review or a description of a particular court decision where a judge is generally more willing to rule on constitutional issues and invalidate legislative or executive action
Legal activism has flourished in India and gained tremendous legitimacy among the Indian public. However, this activist approach by the judiciary inevitably leads to friction and tension with the other state organs. Such tension is natural and to some extent desirable.
Right-wing activism in India has acquired a humane face by liberalizing access to justice and granting relief to disadvantaged groups and those who do not have Public Interest Litigation (PIL).
A letter of mail or even a postcard addressed to the court is accepted to assert privileges, the courts ignoring the technical aspects. The Supreme Court of India loosened the traditional concept of the place by allowing citizens with a public spirit to bring public concerns to justice. Thus the nThe number of PIL actions has increased since 1977.
The growth of the PIL after 1977 is mainly due to incidents that occurred during the Emergency Rule between 1975 and 1977. One can see the clear differences between the pre-1977 judicial approach and the post-emergency rule in India. This change in strategy reflected the changing times and desires of people. Several cases of human rights violations were identified in the emergency, but the courts acted cautiously.
In ADM Jabalpur v Shukla (1976) 2 SCC 521, the Supreme Court ruled that a detainee who is in preventive detention has no general right to obtain relief from the courts for an unconstitutional and improper preventive detention order, despite the fact that it does without enactment became legal authority. The reason given by the court was that the fundamental rights guaranteed by the constitution were suspended during the emergency.
Since the judiciary was formed as an independent and separate government agency under the Government of India Act of 1935 and then under the Constitution of India, it is advisable to trace the origins of the judiciary after 1935. A new rule is being introduced not only to treat and correct the current problem, but also to address any possible concern that is not currently in the Court of Justice but is likely to arise in the future.
Legal activism is when the courts, after hearing both sides, move from their conventional decision-making position to the legislature position and enact new laws, new rules and new guidelines.
In the first decade of independence, judicial activism was almost nil, and the executive was run by political stalwarts and parliament worked with great enthusiasm, the judiciary to the executive.
From the 1950s to 1970s, the Supreme Court had a full legal and institutional view of the Constitution. In 1967
In Golak Nath v Punjab State, the Supreme Court ruled that the constitutional rights of Part III of the Indian Constitution could not be changed, even though Article 368, which contained only a resolution by two people, did not contain such a restriction. Third majority in both houses of parliament.
Two years before the declaration of emergency, the Supreme Court ruled in the well-known Kesavananda Bharati case that the government had no power to intervene in the constitution or change its fundamental characteristics.
In the case of Kesavananda Bharati v Kerala State, 13 Judge Bench of the Supreme Court overturned Golakh Nath’s decision, but held that the basic framework of the constitution could not be changed. What is meant by “simple structure” is still not clear, although some later judgments have attempted to clarify this. It should be noted, however, that Article 368 does not mention that the basic structure could not be changed. Accordingly, the decision amended Article 368.
A significant number of rulings by the Supreme Court of India in which it has played an activist position relate to Article 21 of the Indian Constitution and we are therefore treating it separately.
Judicial intervention can be seen in three ways: first, by repealing a law as unconstitutional, second, by repealing the precedents, and third, by reading the Constitution. In simple terms, legal activism can be seen as the political role that the judiciary plays, similar to the other two executive and legislative branches.
Development and growth of legal activism
The law comes mainly from two sources – statutes and precedents or court decisions.
Many provisions of the Constitution allow the judiciary to play an active role by asserting itself.
Article 13 empowers the Court of Justice to declare a law unconstitutional if it violates a fundamental right of citizens guaranteed in the constitution.
An injured person may appeal to the Supreme Court under Article 32 or a High Court under Article 226.
Article 19 allows the Supreme Court to determine whether or not restrictions on the fundamental right are appropriate. Article 131 confirmed the federal principle.
The Supreme Court is the highest court of appeal in all criminal, civil and constitutional matters. He is responsible for advice and has decision-making powers. It has the power to make a final declaration of the validity of the law and all of its judgments are binding on all other courts in India except itself.
The above constitutional provisions show that the constitutional framework has given legal activism sufficient leeway as a judiciary, and that the Supreme Court in particular occupies a unique position.
The emergence of the judiciary was due to trends such as the extension of the powers of judicial review to the administration, the extension of the scope of interpretation to the achievement of economic, social and educational objectives, as well as excessive delegation without restriction, etc.
Dimensions of legal activism
The concept of right-wing activism is multidimensional, but there can be no universal application of these dimensions. They vary depending on the constitution and ideology.
The political science professor Bradeley C. Canon had observed the behavior of the judiciary in leading democracies and considered six important dimensions: Majoritarianism, interpretation stability, faithfulness to interpretation, differentiation between substance-democratic processes, specificity of politics and availability of an alternative possible manufacturer.
- Majoritarianism: While the Court of Justice exercises the power of judicial review, it prefers its own politics rather than the passing of laws. Majoritarianism is violated when a law is declared unconstitutional by the court.
- Interpretative Stability: This is a measure of the extent to which the Supreme Court upholds or overrides a precedent or legal doctrine. An important example can be the different interpretations of “personal freedom” under Article 21, from AK Gopalan against the State of Madras to Maneka Gandhi against the Union of India.
- Interpretative: This measures legal activism while interpreting the provisions of the Constitution when the general meaning is ignored and given a new meaning according to the changing social and economic scenario of society. More importance is attached to the spirit of the determinations than to their literal meaning, and a harmonious construction of meanings is emphasized for determinations with some contradictions. An important example can be the basic structure doctrine which has been proposed to have judicial control over Parliament’s power to amend.
- Differentiation between substantive democratic processes: This includes judicial measures to regulate the apolitical activities of some institutions. In the Indian scenario, we have examples such as reservations about oppressed classes and their extent, the theory of the creamy layer, the doctrine of legitimate expectation, etc.
- Policy Specificity: This category includes guidelines for taking over the management of schools, hospitals, and other facilities, as well as guidelines for determining the conduct of government agencies.
- Availability of an alternative possible manufacturer: This includes cases where the court sets guidelines on behalf of another agency that is supposed to do so. Although the Supreme Court does not play a very active role in India, there are examples of policymaking in the judiciary. The Supreme Court has set guidelines for industry relocation, guidelines for the elimination of child labor and the payment of child labor compensation by their employers, guidelines for sexual harassment of women in the workplace, etc.
Justice activism is good when it is for the benefit and development of underserved sections of society, but it should not interfere with the government’s political decision-making power.
Now, as the defense of the failures of other branches of government is tackled, the question of the consequences of the judiciary’s failure to meet expectations, as well as its inefficiency, may arise.
According to the same logic, they will take over the functions of the judiciary. Justice JS Verma said judicial activism is a sharp tool to be used by a skilled surgeon rather than a knife to kill.
It cannot be ignored that this socio-economic movement of the court has increased people’s hope for justice. This is necessary for democratic construction and the establishment of the rule of law.
This activism should go hand in hand with honesty and gain trust and confidence in the minds of the public.
Legal activism is an essential aspect of the Constitutional Court’s dynamism. It has to work for the good of the citizens, but within the boundaries or limits of the Judicial process.
The Court must learn from its experience and adapt to social, economic and cultural changes. In the course of its work, the Court of Justice must keep the balance in resolving disputes.