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Scarecrow's Blog

Laced with personal experience I am trying to piece together my interactions with life in my blog!

An estimated 2-minute read

Judicial prodding in the legislative and executive domain

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In the Indian polity the powers have been equitably distributed among the three wings of effective governance viz. the legislature, the executive and the judiciary. While the legislature is ordained to enact legislations, the executive and the judiciary are responsible for implementing and interpreting the laws respectively. The Constitution thus provides for the separation of powers. But sometimes there is a dereliction on the part of legislature and executive and a void is created in the governance system. As a result the third wing of the state i.e. judiciary assumes powers unprecedented for and under the name and guise of judicial review which is the very basic feature of Constitution of India. This active stance of judiciary from moderate to active role has invited both criticism and support from myriad segments of the society.

Judicial activism has been explained in the Black law dictionary to mean judicial philosophy which motivates the judges to depart from strict adherence to judicial philosophy in favour of new and progressive social policies which are not always consistent with the restraint expected of the appellate judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent an intrusion into the legislative and executive domains.

The seeds of judicial activism were sown in India in the landmark case of Keshvananda Bharti Vs. Union of India (1973) whereby the Supreme Court for the first time rejected the stance that the Parliament was supreme. Moreover the Apex court also formulated the doctrine of basic structure which formed an impenetrable structure against all despotic and whimsical actions of executive or for that matter of the legislature.

Now, the moot question that arises is whether judicial activism worth appreciating or worth subjecting to censure? The opponents view it as farce on the democratic setup. According to them, judicial activism is the outcome of judiciaries zeal to be in the limelight. No one is spared from the serious suspicion not even the Prime Minister of the country. But these arguments can be countered by submitting that judicial activism has not only activated the judiciary but also the legislature and the executive. Many beneficial legislations have also surfaced such as The Consumer protection Act, 1986 and The Protection of Human Rights Act, 1993.

Thus from the above discussion it becomes succinctly clear that in the recent years the balance of power has shifted towards the judiciary and for this it is the legislature and executive who are to be blamed. For if they would have acted responsibly and discharged their duties in letter and spirit there would have been no need for the judiciary to expand its horizons and fill up the vacuum created in the governance system. In a way judiciary has simply been a catalyst on change.

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