Judicial Activism in India – Article 142

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There have been many instances where the Supreme Court of India has declared laws in the interest of complete justice, where it has played the role of the legislature and executive. In this article, we will discuss judicial activism, the role of judicial activism in India, what is Article 142 and its objectives, what judicial overreach is, and various landmark judgments on judicial activism in India.

What is Judicial Activism?

As the word suggests, Judicial Activism means where the judiciary is actively involved in dispensing complete justice by preserving the legal system and constitution by upholding the right of the citizens on matters relating to religion, environment, and history. Judicial Activism in India means the authority of the High Court and the Supreme Court to declare any regulations as unconstitutional and void if the legislation is incompatible with the constitution or if they breach any constitutional provisions.

History of Judicial Activism in India

Judicial activism is an English concept derived from ‘equity’ and ‘natural rights’. It evolved from the ‘judicial review’ adapted from the British Constitution during the Stuart period in 1603-1688.however, the then Chief Justice Coke acknowledged judicial review. The judicial review means that if any law violates the principle of common law and reason, then it could be reviewed and adjudge by the judiciary as void.

The term ‘judicial activism’ was first introduced by Arthur Schlesinger Jr. in The Fortune magazine article titled, “The Supreme Court, 1947”. In India, Judicial activism came into light in 1893, whereby Justice Mehmood of the Allahabad High Court had delivered a contradictory judgment. Earlier the judiciary was not very active in law-making. However, in 1964 Justice Gajendragadkar had developed many labour laws such as, in the event a worker is dismissed from his work due to misconduct. During the inquiry, the worker must be allowed to defend himself.

The Supreme Court can exercise judicial activism under Article 142 of the Indian Constitution. This provision of the Constitution empowers the Supreme Court to pass any order or decree for imparting complete justice in any matter pending. However, only when there is a gap in subject matter such a power can be extended.

Judicial Activism in India – Article 142

Article 142, Constitution of India provides for enforcement of the Supreme Court’s order or decrees. The Supreme Court may pass any order or decree with the intent to provide ‘complete justice’ to any cause. Such order of the Supreme Court shall be enforceable throughout the territory of India as may be prescribed by the Parliament or President as the case may be.

Article 142 (2) gives power to the Supreme Court to make any law for producing or discovering any document, summoning any person, punishment, or investigation of any contempt of court.
The constitution has given broad powers to the Supreme Court under Article 142 of the Constitution to pass any order or decree without any statutory provisions. In other words, where the executive or legislature fails to make any legal provisions, the Supreme Court can come forward to make new laws to fill the vacuum.

Importance of Judicial Activism in India

Judicial Activism is very important for the proper implementation of the fundamental rights of individuals. Some instances where the Supreme Court has exercised its power under Article 142 of the Constitution and created policies, laws, and guidelines are:

  • In D.K. Basu Vs. State of West Bengal, the court had laid down guidelines for arrest and detention procedures. Considering the increasing cases of custodial deaths, the Supreme Court had put forward guidelines ordering that a man cannot be handcuffed on mere suspicion and a woman cannot be taken to the police station after dusk.
  • In Damodar S. Prabhu Vs. Sayed Babalal H, the Supreme Court had laid down guidelines for compounding Section 138 of Negotiable Instruments Act, 1881.
  • The Supreme Court had laid down 49% of job reservations for backward class or castes. It exempted the creamy layer for the upliftment of their status.
  • In 1993, the high court judges had also supervised the prisoner’s living conditions in the jail. The court had threatened multi-crore rupees industries with closure if the industries continuously polluted the Taj Mahal and Ganga.
  • In a 1994 case, the Supreme Court had ordered the Chief Army Staff to pay Rs. 6,00,000 to the two children and the widow of the army officer who had died due to insensitive or indifferent behavior of the concerned authorities for the past 16 years.
  • Recently, the Supreme Court had restricted MLA Thounaojam Shyamkumar to attend the Manipur Legislative Assembly as a disqualification petition was issued against the MLA.

Landmark cases on Judicial Activism In India

Some of the landmark cases on Judicial Activism, where the Supreme Court has exercised its power under Article 142 of the Constitution are as follows:

In Re: Cognizance for Extension of Limitation Vs. XXXX (Supreme Court of India) (Suo Motu Writ Petition (Civil) No. 3 of 2020)

The Supreme Court took suo moto cognizance of the difficulties and challenges people are facing due to pandemic (COVID-19 virus) throughout the country. Therefore, the Supreme Court in its vide order dated 23rd March 2020 directed that the period of limitation in filing applications, suits, petitions, appeals and all other proceedings, shall be extended from 15.03.2020 till further orders, even though the general or state laws have prescribed the period of limitation.

In Re: Distribution of Essential Supplies and Services During Pandemic (Suo Motu Writ Petition (Civil) No. 3 of 2021)

The COVID-19 had caused a national emergency kind of situation in the country. The Supreme court had taken several high court cases underway regarding COVID-19 preparedness throughout the country and issued four notices to the Centre regarding the supply of Covid care essentials, namely; medicines and oxygen, its plan on Covid preparedness, including the details of the method and manner of vaccination drive plan and the power to declare lockdown.

Vishaka & Ors. Vs. State of Rajasthan & Ors. (1997) 6 SCC 241

In this case, the Supreme Court had provided complete guidelines for protecting women from sexual harassment at the workplace. These guidelines are binding on all the courts under Article 141 of the Indian Constitution. The court had further held that where the executive fails to act, the judiciary can step in to solve its constitutional obligations until the legislature acts to play its role by making proper legislation to cover the matter.

Manohar Lal Sharma Vs. Principal Secretary & Ors. (2014) 9 SCC 516

A petition was filed in 2012 for the legality of allocation of coal blocks to private companies from 1993 onwards, which was in question. Therefore, the Supreme Court had cancelled nearly 200 coal blocks and declared all the allocation of coal blocks between 1993 – 2010 as illegal. The court had also imposed a fine of Rs. 295 per tonne of coal that has already been mined.

State of Tamil Nadu & Ors. Vs. K Balu and Ors.

Public interest litigation was filed to remove retail liquor outlets from the national and state highways. The apex court had directed both the Central and State governments to ban or restrict the sale of liquor on the state and national highways. It had further directed that no shops would be visible or directly accessible within a distance of 500 meters of the outer edge or lane of the national or state highway. It had further directed the states and the union territories to follow its directions strictly.

Therefore, it is seen that the Supreme Court has always actively played the role of the executive and legislative when it is so required. However, is this action always justified? Is there any limit to these actions of the Supreme Court?

What is Judicial Overreach?

When judicial activism exceeds its limits and enters the constitution’s legislative and executive branches, it is called judicial overreach. In other words, the judiciary interferes in the legislative and executive power of the government. Such action is against the separation of power of government, wherein the three branches of the government are given different powers.

Christian Medical College, Vellore & Others Vs. Union of India and Others

In this case, the Supreme Court had restricted the states from conducting separate entrance exams for medical courses and directed that all the undergraduate admissions to medical courses can only be made through the National Eligibility-cum-Entrance Test (NEET).

Jolly LLB 2 Vs. Bombay High Court

In this case, a lawyer had filed a writ petition before the High Court for deleting certain scenes that sabotaged the dignity of the judge’s seat. The High Court had appointed a commission to look into the matter, censored four shots from the movie, and directed the CBFC to recertify the film. A petition was filed before the Supreme Court against the High Court’s order to appoint the committee. The apex court allowed the High Court to take appropriate actions and did not interfere with its decisions.

Section 5B of the Cinematograph Act, 1952, states wherein certification of the movie involves defamation, and court contempt is prevented. The Cinematograph Act does not give power to the courts to modify or certify any film.

These are clear examples of judicial overreach where the court had interfered beyond jurisdiction.

Conclusion

The constitution has three branches; the legislative, executive, and judiciary. Each branch has been assigned with works and limitations. Granting more power to one of the branches is against democracy, as it would restrain the power in one hand. Therefore, the judiciary should be made accountable for its actions. The judiciary can enter into another branch’s power only if there is inaction from that branch or only necessary for ‘complete justice’. Judicial activism is good as the Supreme court is not restrained from granting justice merely on the ground of lack of jurisdiction. The constitution has given wide power to the supreme court under Article 142 to pass any order in the interest of common justice.

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