Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947." Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times.
All the judicial scholars and legal pundits may have their own interpretation of judicial activism and judicial review but I feel that there is no denying the fact that the Apex Court saved the day for India when The Supreme Court on 3rd March set aside PJ Thomas' appointment as head of anti-corruption body Central Vigilance Commission, even as it laid down stringent guidelines for future appointments of central vigilance commissioner. The SC set aside the September 3, 2010 recommendation for appointment of Thomas as CVC as 'illegal' since the high-powered committee did not consider the pending chargesheet in the palmolein import scam. The court said that the committee's recommendation on appointment of Thomas "does not exist in law".
This appointment was vehemently opposed by BJP's Sushma Swaraj '“ leader of the opposition in the Lok Sabha but very strongly supported by Prime Minister Manmohan Singh and Home Minister P Chidambaram. They were the three people on the panel to select the CVC. Welcoming the Supreme Court verdict, Manmohan Singh said, "I respect the judgment of the Supreme Court and I accept my responsibility."
BJP leader L K Advani said that it has never happened that a decision of the Prime Minister has been turned down by the Supreme Court. BJP chief spokesperson Ravi Shankar Prasad asked the Prime Minister to explain to the country that if he was misled about PJ Thomas or did he mislead the nation. I do not agree with Mr.Prasad about being misled or mislead the nation explanation. Our Prime Minister is a very honest, intellectual Prime Minister but also a very bebas Prime Minister. He does things based on orders from 10 Janpath '“ nothing more, nothing less. Yeh kehna bhi shayad koi atishyokti nahi hogi that if our Prime Minister goes for a physical examination and if the doctors show him a picture of Sonia Gandhi during the examination, they would not be able to find any spine in his body. He has surrendered his spine to Sonia Gandhi to enjoy the lucrative position of the Prime Minister. I had also questioned the appointment of PJ Thomas in my ARTICLE on December 6, 2010.
The Supreme Court gave the nation another reason to celebrate when The Supreme Court (SC) questioned on 3rd March the Centre's inertia in sparing major black money hoarders, such as Pune stud farm owner Hasan Ali Khan, custodial interrogation and asked it to respond by 8th March. 'What the hell is going on in this country?' an anguished bench of justices B Sudershan Reddy and SS Nijjar said as it heard a PIL filed by noted lawyer Ram Jethmalani and others over black money stashed by Indian tax evaders in foreign banks. Khan, who is alleged to have stashed away around $8 billion, has been served a notice demanding tax of Rs50,000 crore. SC also asked solicitor general (SG) Gopal Subramaniam that why three key enforcement directorate officials probing a case of alleged foreign exchange violation by Khan were transferred midway and ordered their immediate reinstatement. 'It's unfortunate,' the court said.
India could have had a third celebration in the same week when the Bofors case came up before a Delhi court on 4th March. Instead of trying to pursue the case further, the CBI filed a closure report seeking to drop all charges against Italian businessman Ottavio Quattrocchi in the Bofors case.
In a strong reaction to the filing of closure report by CBI in the Ottavio Quattrocchi case, BJP said this is "brazen misuse" of the agency and insisted that there is "no closure of truth". "The acceptance of the closure request filed by CBI is an indicator of the extent to which the Congress government went to save Quattrocchi, who was close to some powerful people in the party... But Congress should remember that there is no closure of truth," BJP chief spokesperson Ravi Shankar Prasad said. He insisted that in a similar case relating to Bofors kickbacks accused Win Chadha being tried by a Tribunal, the " entire evidence against Quattrocchi" was presented. He said that this included details of his slush funds, bank accounts and involvement of middlemen in the deal. "Yet, instead of filing a case against Quattrocchi, CBI said there is nothing to be investigated. This is the most brazen misuse of CBI," .
Bofors case had the distinction of being the biggest '˜ghotala' in the country before the 2G scam came forward to claim the crown of king of corruption. The intensity of the Bofors scandal was so strong in the country that Rajiv Gandhi and the congress party lost the parliamentary elections in 1989 and which catapulted V P Singh to the position of the prime minister. The general consensus in the country is that a lot of '˜herapheri' was done in the Bofors deal. Saying that Ottavio Quattrocchi is innocent in Bofors case tantamounts to saying that there is no water in the Ganges or all the politicians are honest. Let us hope that a day would come when the government would reopen the Bofors case again.
I want to end the article by saluting and expressing the country's gratitude to the judiciary for doing things which are good for the country. I was talking to a sitting judge of a High court who also happens to be a close personal friend and he very categorically told me that the issue of judicial activism is a serious topic of discussion among the members of the judiciary. I do not care what the legal scholars have to say about the court's jurisdiction but if their actions are good for the country '“ let them do what they think is right. If the legislative and bureaucratic arm of our government were doing a good and clean job, the public would not look up to the Supreme Court for doing the right thing.