Judicial activism

Judicial activism is a buzzword of law in the 21st Century India. Although defined in several ways, it refers to increasing role of judiciary in defining law, a role which was to be played by the parliament earlier. Those who talk of growth of judicial activism have in mind that judiciary is usurping the rights of the other two institutions – parliament and executive. Judiciary was supposed to be only one of the three pillars of Indian democracy and judiciary, parliament and executive were considered to have an autonomous place of their own. Depending on one’s perspective this new condition may have something to be celebrated or something to be condemned. Democracy is considered to be the rule of law. This implies that laws are well defined, understood by people, accepted by people, respected by people and most commonly obeyed by people. The case of India is interesting. The history of law in India is closely linked with the history of national movement. Politicaly speaking, India was never one nation. Whatever be one’s reading of the ancient history of India one thing that cannot be denied is that the people of Indian sub-continent have always been highly diverse in terms of society and culture. British imperialism made them a nation. The dream behind nationalistic movement was to develop the country into a developed nation by fighting the colonial exploitation. However, for many freedom fighters this also implied a state of non-exploitation with respect to internal relations based on region, caste, community, class, urban-rural areas, etc. Soon after independence India adopted a Constitution which was to provide the framework of law in all matters pertaining to man and society. It was expected that the parliament would articulate the value system of Indian people and make policies, within the Constitutional framework; executives would implement the policies; and judiciary will provide the justice, in perceived cases of injustice by the aggrieved party. It was too ideal an idea. Indians who were not prepared for equality and justice were to implement the ideas enshrined in the new Constitution. If one reads the writings of Prem Chand and other contemporary writers it becomes obvious that those who were to exercise power or give direction on behalf of society had absolutely no faith in the Constitutional ideas of equality, liberty and fraternity. Indian society was poor, backward, unstable and pre-scientific. For most people the language of religion was the language of justice and they communicated their thoughts and meanings in locally interpreted religious concepts of diverse nature. Thus it was a horrendous task to evolve a common civic and criminal code for Indian people that will guide the action of individuals, groups and institutions.