In the context of the judiciary, we often hear about a word "Judicial Activism", but we are not fully aware of it. Today we will talk about this in detail. Today in this article, I talk about what is judicial activism and what is the difference between judicial review and judicial activism ? So read this post until end.
What is judicial activism ?
Judicial activism refers to the active role played by the judiciary to protect the rights of citizens and promote justice in the society. Judicial activism emphasizes the role of the judiciary in getting the other two organs of government (legislature and executive) to discharge their constitutional obligations.
The concept of judicial activism is first generated in United States US. The term was first used in 1947 by Arthur Schlesinger Jr., an American historian and educator.
Judicial activism is a judicial principle, it motivates judges to strictly follow judicial official decisions in favor of progressive and new social policies. Judicial activism has been taken from the Constitutional system of the United States of America.
In other words, judicial activism is the decision of the judiciary on suo motu cognizance or by public interest litigation, in matters of larger public interest within the limits of expertise and powers.
Judicial activism can also be seen in the form that when the other organs of the state do not play their rightful role in carrying out their constitutional functions or when the law is not made according to the law but on political and personal basis, then judicial activism by controlling them instills confidence in the minds of the people for the rule of law in a democracy.
In other words, it can also be said that if the judiciary is seen interfering in the areas of executive or legislature in matters of public interest, then it is called judicial activism.
Read also:-
Justification of judicial activism
Now the question is when such a situation comes when the court needs to show judicial activism. I have explained this thing very well, let us understand it.
1. Responsible government almost collapses when the branches of government (legislative and executive) are unable to perform their respective functions as they should have. In such a situation, the trust of citizens in the constitution and democracy starts to break. In order to preserve the rights and freedoms of the citizens and to maintain the confidence of the people in democracy, there is a tremendous pressure on the court to help the aggrieved people by coming forward.
2. The second thing is judicial deal i.e. the judges also want to be a participant in the social reforms of the changing times and want to do some heroic type work during their tenure. For this, they give a lot of attention to public interest litigations.
3. The third thing is the legislative vacuum, that is, sometimes it happens that there is a lack of laws in some areas. In such a situation, the responsibility falls on the court itself to do the work of judicial legislation according to the changed social needs.
4. Fourthly, there are some such provisions in the Constitution of Nepal itself, in which the judiciary has the scope to legislate, that is, to make laws or get an opportunity to take an active role.
5. Where the legislature and executive fail to protect the basic rights of citizens such as dignified life, healthy environment, or law and administration Failed to provide an honest, efficient and just system.
6. When a totalitarian government with an absolute majority is acting with the wrong intentions or motives as was the case during the Emergency.
Difference Between Judicial Review and Judicial Activism
Judicial review means to exercise the power of the judiciary to review and determine the validity of a law or order. Judicial activism, on the other hand, refers to whether the use of judicial power, by its assertiveness and enforcement, is able to benefit the common people and the society at large.
Judicial activism can be defined as a philosophy of judicial decision-making where judges express their individual views on public policy rather than constitutionalism.
Read also:-