Judicial activism is a necessory tool to guard against “legislative adventurism and executive excesses”. Critically discuss in the context of the doctrine of seperation of powers provided in the constitution of India.
Judicial activism is the participation of the judiciary in the legislative and executive spheres. In India, unlike the US, the concept of separation of powers is not adhered to strictly. Separation of functions rather than separation of powers is followed. However, a system of checks and balances has been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
Guard against legislative adventurism
- Strikes down unconstitutional laws violating fundamental rights or the basic structure of the constitution.
- Lays down judicial law where the legislature is ineffective.
Guard against executive excess
- Protect citizens’ rights against arbitrary executive policies.
- Ensures that the basic structure of the constitution is not violated.
- Gives the right to citizens to put their grievances to court. E.g PIL
However, this creates an issue of venturing into other’s territories and weakens the doctrine of separation of powers given in the constitution between the three organs.
- Interferes in the legislative, and executive sphere which is against the constitution.
- A non-elected body should not dictate policies as it leads to autocracy.
- Creates discord between judiciary and executive thus hampering the administration. E.g National Judicial Appointment commission bill was struck down by SC.
Judicial restraint needs to be exercised by courts unless something unconstitutional happens.