Scope of Judicial Activism to Address the Embedded Problems of Indian Society

Scope of Judicial Activism to Address the Embedded Problems of Indian Society

India, the second most populous country in the world (after China), has dozens of societal problems hindering the overall development of the country. However, some of the fundamental problems, such as child labor, female infanticide, and poverty are the cancer of Indian society (brief description illustrated below):

Child Labor: There are approximately 1,200,000 children working in the hazardous occupations. However, according to International Labour Organization (ILO), 2,400,000 adolescents are working in hazardous industries.

Female Infanticide: Killing girl child intentionally is still a common culture in some parts of India (especially in North India). According to the Central Statistical Organization report, during the period, 1991-2011, the child sex ratio declined from 945 to 914.

Poverty: About one-third population of India is still living in poverty. Further, 7 percent of country’s rural population is living in extreme poverty.

In last 68 years (of independence), Government of India failed to address these three basic problems, which are definitely of prime concern.  

So, I believe, these problems can be addressed by the Supreme Court of India under the provision of “Judicial Activism.” As judicial activism implies going beyond the conventional constraints applied to judges and the Constitution, which gives judges the right to strike down any legislation or rule against the precedent if it goes against the Constitution or not in welfare of the society at large.

 

Judicial activism is incorporated in the Constitution with the view that “the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of the contemporary society.”

It is believed as Judicial activism means - judges assume a role as independent policy makers or independent "trustees" on behalf of the society that goes much beyond their traditional role as interpreters of the Constitution and the laws, if a situation demands.

However, many experts of this field are critical of judicial activism, as judicial activism normally considered as “legislating from the bench.” Some people have even said that it is equivalent to judicial tyranny, which means - a judge is ruling on the basis of personal political convictions or emotions.

However, because of the consistent failure on part of the legislative and executive wings of the government to exercise ‘good governance’ makes judicial activism an active and imperative tool to deliver justice to millions of marginalized people.

Golak Nath case is a landmark example of judicial activism. In this case, the Supreme Court of India by a majority of five judges (out of total 6 judges bench) laid down that the Fundamental Rights as enshrined in Part-III of the Indian Constitution are undeniable and beyond the reach of the Parliamentary amendatory process.

Therefore, in a modern democratic setup, judicial activism can be looked up as a mechanism to curb legislative adventurism and executive ignorance by enforcing Constitutional limits especially when the Legislature and the Executive fail to exercise their responsibilities or simply be negligent. In other words, judicial activism should be viewed as a “damage control” exercise, in this sense; it is (probably) only a curative instrument especially in Indian context.

It is also substantiated by Dr. A.S. Anand, (former chief Justice of India), he said: "the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both the Legislature and the Executive."

Moreover, the kind of umbilical problems Indian societies have been facing for many years, need greater and practical attention from the government side; however, the faulty national policies corroborated by the corruption, are restraining to address these problems. In such a situation, if the court acts as a watchdog that might help to eradicate many problems.