It needs a free and democratic dispensation to nurture it. What is judicial Activism? Before we dwell on the causes and features of judicial activism, let us first understand what it is. A modern democratic state is built on the principle of trichotomy of powers, i. However, it has been observed that even in developed polities, the functioning of the legislature and executive leave a lot to be desired. Instead of being vigilant and acting as a check on executive persecution, the legislature becomes its hand-maiden.
In addition, it is slack in enacting laws. To fill the vacuum resulting from this legislative-executive mal-functioning, the judiciary has to assert itself by providing relief to the sufferers of tyranny and by interpreting laws, which are either deficient or vague. In two landmark cases, Marbury vs Madison and Mccullough vs Maryland, he laid the foundation of the doctrine of Judicial Review i.
Judicial Activism in Pakistan: However, things changed after By a very active interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in Had the SC interpreted the article textually, the case should have been heard by a High Court at first instance. First, the Supreme Court, by repeated instructions to the effect, forced the government to promulgate the Legal Reforms Ordinance, , which separated the judiciary from the executive at the lower level.
This ordinance rectified an anomaly and aberration in our democracy, which had been tacitly supported by ever government in order to enjoy political clout. A novel committee, the Chief Justices Committee was formed, which routinely castigated executive excesses publicly.
After being rushed through Parliament, the 14th Constitutional Amendment was hailed as the remedy against the scourge of floor-crossing, which had de-stabilized the democratic political system in the post-Zia ul Haq era.
To this extent, of course, it was a much needed step. However, it was widely criticized for going far beyond the anti-defection intent and eroding the very basis of democracy by stifling dissent and meaningful debate and, thus, violating the freedom of speech guaranteed in the Constitution. Furthermore, by vesting party leaders with sweeping powers to unseat legislators and denying judicial redress to the latter, it was seen as having imposed party dictatorships and political regimentation.
All these issues went before the Supreme Court and its verdict has only partially validated the controversial Amendment. Even in allowing this right of verbal dissent, there was a split among the honorable judges. Justices Saiduzzaman Siddiqi and Irshad Hassan held that even dissent outside the legislature was ultimately damaging to party discipline inside the House and, thus, for political stability generally.
The believed that principled dissent required the legislator to resign the seat won under a party flag.
Hence, they favored upholding the 14th Amendment in its entirety. However, the six judges were unanimous in diluting the vast powers given to party bosses by upholding the right of an unseated legislator to seek remedy from the High Court and the Supreme Court. In another landmark judgement, the Supreme Court has declared as invalid several provisions of the controversial Anti Terrorism Act ATA , and asked the government to amend the law accordingly.
Headed by Chief Justice Ajmal Mian, a five-member bench of the apex court heard the case, and upheld the view taken by the Lahore High Court in an earlier judgement.
The striking down of the anti-terrorism law, which critics had from day one judged as a hasty and ill-conceived piece of legislation, is a welcome judicial intervention. The Supreme Court, being the watchdog of the constitution, has done what is expected of it. Needless to say, without a system of checks and balances, even the cherished ideal of the supremacy of parliament can end up in the tyranny of the majority. Moreover the casual approach of our elected representatives in the crucial task of law-making is matched only by the pre-occupation of the executive with arrogating to itself the sole authority to run the system.
The Supreme Court judgement has once and for all rejected the concept of summary trials, and dealt a blow to the executive-sponsored moves to create a parallel judicial system.
Thankfully, the apex court has held in check the pronounced tendency for arbitrary functioning. It has reaffirmed the independence of judiciary, and thus safeguarded fundamental rights and civil liberties.
Hopefully, this message has been forcefully brought home to the government. Justice Nasir Aslam Zahid provided relief to thousands of illegally incarcerated youth during He also stood up against the building mafia. He provided sue moto relief in the famous Feroza Begum case when he ordered the release of a tortured MQM worker, whose mother was being forced to change her party loyalties. Judicial activism is the last refuge against an arbitrary and irresponsible government A vigilant judiciary upholds the constitution, confining the legislative and executive to their constitutional spheres.
It acts as a check against the privileged power abusers of the society i. The area of judicial intervention has been steadily expanding through the device of public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest litigation attained a new dimension comments that "the supreme court has developed several new commitments. It has carried forward participative justice. It has laid just standards of procedure. It has made justice more accessible to citizens".
The term 'judicial activism' is intended to refer to, and cover, the action of the court in excess of, and beyond the power of judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for 'activism' as such on the Court. Judicial activism refers to the interference of the judiciary in the legislative and executive fields.
It mainly occurs due to the non-activity of the other organs of the government. Judicial activism is a way through which relief is provided to the disadvantaged and aggrieved citizens.
Judicial activism is the rendering of decisions, which are in tune with the temper and tempo of the times. In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration.
Judicial activism has arisen mainly due to the failure of the executive and legislatures to act. The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance. Besides the above mentioned factors, there are some other situations that lead to judicial activism.
During the past decade, many instances of judicial activism have gained prominence. The areas in which judiciary has become active are health, child labour, political corruption, environment, education, etc. Public interest litigation means a suit filed in a court of law for the protection of public interest such as pollution, terrorism, road safety etc. Judicial activism in India acquired importance due to public interest litigation.
It is not defined in any statute or act.
- Judicial Activism: A Necessary Action Judicial activism is rarely needed, but when it is employed, it is only in the most dire of circumstances. It is the broad interpretation of the constitution of the United States by the Supreme Court.
Mar 29, · Judicial Activism in Pakistan: As already identified, Pakistan’s judicial history is replete with cases like overturning of Maulvi Tamizuddin’s appeal, Dosso’s case and the Nusrat Bhutto case, where the judiciary bowed to the executive’s pressure.
In a recent essay, “Why We Need More Judicial Activism,” Suzanna Sherry, a law professor at Vanderbilt University, said the Supreme Court had erred more often in sustaining laws than in striking them down. The term 'judicial activism' is intended to refer to, and cover, the action of the court in excess of, and beyond the power of judicial review. From one angle it is said to .
Judicial Activism is a doctrine that describes the way a court should actively access its' power as a check to the activities of governmental bodies, when it is thought . Judicial activism continues to attract a heated debate in many parts of the world. Judicial activism can in general terms be defined as judge legislating on the bench. Judicial activism is a situation where the presiding judge or jury issues a judgment on a case based on his or her political or personal thoughts.