Judicial Activism and Indian Democracy.

Topics: Separation of powers, Law, Judicial review Pages: 8 (3001 words) Published: June 20, 2013
Introduction
Democracy is a form of government where people surrender some of their rights to a small elite body who are elected by people to rule over themselves. This elite body or the public representatives make law for the betterment of people. Once elected the public representatives remain all powerful till the end of the term by constitutional provision or otherwise because the constitution does not provide “call back” power to the people. The assumed principle is that these public representatives should make laws for the benefit of the people. The loophole in our administration is that it is not very transparent and popular participation is bare minimum. The prescribed methods of control on government have been largely unsuccessful. So in such a situation a vacuum is created in governance i.e. who shall see the validity of a law. The judiciary as such and by principle cannot act unless an aggrieved party does not knock its door. Hence this vacuum is substantial. As per the theory of “Power vacuum filling” some organ has to extend its influence and it is only natural for judiciary to extend its influence in the sphere. Many argue that it is against the principle of democracy. May be it is true. But there is a widening gap between the principle of democracy and the essence of democracy. Sometimes the hegemonic growth of the form and procedure of democracy become so vast that they make the spirit of democracy in danger. Now it is important to decide what is more important the procedure and principles of democracy like the legislative supremacy or the spirit of democracy i.e. welfare of people. The principle and procedure may be a means to an end but the end is always the spirit of democracy. So if means are abridged to attain the ends then democracy will be more successful than anything else. Judiciary under the veil of activism serves as a watch dog for preserving this basic spirit of democracy. Meaning

Judicial activism, like many catchwords, has acquired so many different meanings as to obscure more than it reveals. But at the same time it cannot be discarded as an intellectual void for the vagueness of the definition of the word for at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to the spheres of executive and the legislative. Judicial activism simply means a pro-active judiciary which does no limit itself to the interpretation of law only but also sees if the law affects people adversely. The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach. Our Constitution & Judiciary

When India’s founding fathers wrote the Constitution, they created three arms — Parliament, Executive and the Judiciary — of the state that together were to be the keepers of the ideals of the nation as enshrined in the Constitution. Over the past several months, however, the Parliament has become dysfunctional, the Executive has abdicated its duties and the Judiciary is cracking the whip. Many think that it is cracking the whip a bit too much. I don’t think so. An active judiciary is one that takes its task of defending the fundamental rights of the people and their liberties against the onslaught of the state, earnestly. As far as judges are concerned, it is a matter of mindset. One judge could say that policy formulation is the job of the Executive and Judiciary does not need to intervene while another could believe that even in policy formulation, the Judiciary would need to step in to guard fundamental rights. The occasion for this often arises when the Executive fails to discharge its statutory, constitutional obligations. As a result of this failure, the fundamental rights of...
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