JUSTIFICATION OF JUDICIAL ACTIVISM‌

According to Dr. B.L. Wadehra, the reasons for judicial activism are as follows:4

(i) There is near collapse of the responsible government, when the Legislature and Executive fail to discharge their respective functions. This results in erosion of the confidence in the Constitution and democracy amongst the citizens.

(ii) The citizens of the country look up to the judiciary for the protection of their rights and freedoms. This leads to tremendous pressure on judiciary to step in aid for the suffering masses.

(iii) Judicial Enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages the Public Interest Litigation and liberalises the principle of 'Locus Standi’.

(iv) Legislative Vacuum, that is, there may be certain areas, which have not been legislated upon. It is therefore, upon court to indulge in judicial legislation and to meet the changing social needs.

(v) The Constitution of India has itself adopted certain provisions, which gives judiciary enough scope to legislate or to play an active role.

Similarly, Subhash Kashyap observes that certain eventualities may be conceived when the judiciary may have to overstep its normal jurisdiction and intervene in areas otherwise falling within the domain of the legislature and the executive:5

(i) When the legislature fails to discharge its responsibilities.

(ii) In case of a 'hung’ legislature when the government it provides is weak, insecure and busy only in the struggle for survival and, therefore, unable to take any decision which displeases any caste, community, or other group.

(iii) Those in power may be afraid of taking honest and hard decisions for fear of losing power and, for that reason, may have public issues referred to courts as issues of law in order to mark time and delay decisions or to pass on the odium of strong decision-making to the courts.

(iv) Where the legislature and the executive fail to protect the basic rights of citizens, like the right to live a decent life, healthy surroundings, or to provide honest, efficient and just system of laws and administration.

(v) Where the court of law is misused by a strong authoritarian parliamentary party government for ulterior motives, as was sought to be done during the emergency aberration.

(vi) Sometimes, the courts themselves knowingly or unknowingly become victims of human, all too human, weaknesses of craze for populism, publicity, playing to the media and hogging the headlines.

According to Dr. Vandana, the concept of judicial activism can be seen to be reflecting from the following trends, namely:5a

(i) Expansion of rights of hearing in the administrative process.

(ii) Excessive delegation without limitation.

(iii) Expansion of judicial control over discretionary powers.

(iv) Expansion of judicial review over the administration.

(v) Promotion of open government.

(vi) Indiscriminate exercise of contempt power.

(vii) Exercise of jurisdiction when non-exist.

(viii) Over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives.

(ix) Passing of orders which are per se unworkable.