Rights in a democracy are its heart and soul. Without Rights, democracy can neither exist nor survive. Various democracies across the world have included the concept of rights in their constitutions to shape a nation on the foundation of values. India since Vedic times has incorporated rights into its society. This has been reflected in her struggle for independence and later in the spirit of her constitution under Part III, Article 12-35 incorporating the Fundamental Rights. If democracies have seen rights, they have also seen subjugation of rights time and again. Whenever the concept of right is under threat, society and the people have evolved and adopted activism to provide, protect and guarantee the rights. One such concept is Judicial Activism which came into being to make sure the rights do not just exist but are enforced whenever needed.
Judicial Activism as a concept originated in the United States of America and the term was for the first time coined by Arthur Schlesinger Jr. in 1947. India has Judicial Activism coming into its judicial environment in the 1970s which saw huge turmoil both in social and political domains. Judicial Activism in India has been prevailing in India via two popular modes – Public Interest Litigations (PILs) and Social Action Litigations (SALs). Since the advent of Judicial Activism, it has become the chief instrument for the protection of the Fundamental Rights of the citizens. It complements Article 32 and Article 226 of the Indian Constitution which vests the Supreme Court and High Courts with the power of Judicial Review respectively.
Judicial Activism and Scope of Fundamental Rights:
Various dimensions where Judicial Activism has expanded the scope of Fundamental Rights are:
- Enabling Rights– Given the diverse socio-economic structures in India and capital intensive nature of the judicial proceedings, Courts in the late 1970s relaxed the rule of Locus Standi. Under the PIL, any citizen, group of citizens, or organization can move to the courts for seeking protection of the rights of individuals who for any reason is unable to reach the doorsteps of justice. For Example, Hussainara Khatoon vs the State of Bihar case where an advocate filed a case due to a report where criminals in Bihar were made to serve sentences longer than what was judicially awarded.
- Furthering Article 14, Rule of Law – The constitution envisaged a government of laws and not of men. Rule of Law is an essential component of the dream. Judicial Activism protects and promotes the Rule of Law. For Example, in Sunil Batra vs. Delhi Administration Case, 1980 where an inmate of Tihar narrated his torture on a piece of paper which later turned into litigation.
- Expansion of Article 21, Right to Life – Right to Life has been the umbrella of rights under which various rights have been inferred. This has led to the expansion of the rights of the individual. Rights do not just allow for mere existence but a life lived with dignity. Judicial Activism has been the major tool for the expansion of Article 21. For Example, in the Maneka Gandhi vs. Union of India Case where the term ‘Personal Liberty’ was interpreted in the widest possible manner which expanded the scope of Article 21.
- Upholding Right to Equality (Article 14-18) – For Example, Indra Sawhney vs. Union of India Case has balanced the rights of the socially backward classes with Article 14.
- Limiting the arbitrary actions of Legislature and Executive – Courts have acted as a mechanism of Check and Balance upon the State which can’t make the democracy, a tyranny of the majority. The most famous example in this regard is the Kesavananda Bharati Case which propounded the Doctrine of Basic Structure. It put a check on the arbitrary amendments that can be made to the Indian Constitution.
- Creation of new Rights – Courts have ensured that the interpretation of rights is fluid and as per the demands of society. In this regard, they have time and again brought in new rights. For Example, K. S. Puttaswamy Judgment declared the Right to Privacy as a Fundamental Right, Anuradha Bhasin vs. Union of India Case where the Right to Access the Internet was made a part of the Right to Life.
- Nudging the State towards Policy Development and Protection of Rights – Often due to policy paralysis, matters of public importance remain pending with the legislature which does not act upon them. Courts have reacted swiftly to such situations by taking matters into their hands. For Example, Vishakha Guidelines were propagated by the court during the Vishakha vs. Union of India Case due to the delay in the formation of concrete law as instructed by the Supreme Court. This was later replaced by the Sexual Harassment at Workplaces Act, 2013.
- Augmenting Judicial Review – Circumvention of constitutional values is at times seen by the laws that are formed. Courts in these cases have taken the responsibility of the constitutional check. For Example, I. R. Coelho’s Case changed the stance of the Judicial Review of the Ninth Schedule. The Aadhaar Judgment looked into the matter of the Aadhaar Bill was rightly classified as a money bill, etc.
- Social Progress vis-à-vis Rights – Navtej Singh Johar Judgment, Scraping of Section 377 of the Indian Penal Code, Decriminalization of Adultery via scraping Section 497 of the Indian Penal Code are all testament to the level of social progress the country is achieving. It is also the manifestation of the fact that the Constitution is a living document.
Despite its stellar record and plethora of activism, often courts have been accused of crossing the ‘Lakshman Rekha’ which takes them into the domain of the Legislature and the Executive (Judicial Overreach). Courts must be watchful that the functioning of the democracy needs all of its components to work in sync. Judiciary must choose the areas where activism is needed wisely and must allow the legislature and executive to take corrective action wherever needed. It should also be aware of the frivolous PILs and unnecessary cases. Judicial Activism has a positive connotation to it and that must be maintained in action and spirit by the courts.