Ans: The traditional understanding of the judicial process is that while the legislature makes laws and the executive implements them, the judiciary’s function is only to interpret and apply the law to the facts of a particular case.
As an organic document, a written Constitution chiefly performs two main tasks–firstly, it sets up the organs of the governance and secondly, having set up these institutions, it provides a recourse against the abuse of power by these organs.
Some consider judicial activism as good thing, because for them judiciary is filling the void created by legislature and executive. For others, it is a matter of concern that over the years this original, beneficial and unexceptional character of the court’s activism (in the form of a Public Interest Litigation) has been largely converted into a general supervisory jurisdiction to correct actions and policies of the government, public bodies and authorities.
Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the powers of the government to take decisions on a range of policy matters.
Takshasila IAS Academy Managing Director Dr BSN Durga Prasad said that the constitutional makers believed in separation of powers, so even if there is a void, legislature and executive would pay for it accordingly, there is simply no need for judiciary to intervene. “Already we can crores of cases pending in courts, so it would be much appreciable if the judiciary concentrates on that, as at the end we all know that justice delayed is justice denied,” Dr Prasad said.
Over the past several years, 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 too much. 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.
Ruler of England Stuart King James 1 on November 13, 1608, entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England.
The king was greatly offended and replied, “This means that I shall be under law which is treason to affirm.” Coke replied, “ the king should not be under man but should be under God and law.” Chief Justice Coke’s reply was an affirmation of the judicial power while upholding the rule of law against the arbitrary decisions of the sovereign. This was judicial activism of finest.