Judicial Activism

What is Judicial Activism? Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Legislature, rather than limiting itself to the powers traditionally given to the judiciary.

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The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government’s condonation of abusive practices, in most public interest related litigation, the judges take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. To overcome this problem, our Courts have developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis which are deputed to inquire into the subject-matter of the case and report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the Courts also seek the services of senior counsels

It is reasoned that the substantive contents of a constitution adopted by a country at a particular point of time reflect the will of its framers. However, it is not necessary that the intent of the framers corresponds to the will of the majority of the population at any given time. In the Indian setting, it is often argued that the members of the Constituent Assembly were overwhelmingly drawn from elite backgrounds and hence did not represent popular opinions on several vital issues. Furthermore, the adoption of a constitution entails a country’s precommitment to its contents and the same become binding on future generations. Clearly the understanding and application of constitutional principles cannot remain static and hence a constitutional text also lays down a procedure for its