Constitution Day 2022: The importance of judicial activism

The Constituent Assembly adopted the Constitution of India on November 26, 1949. Representation pic

November 26 is a significant day for the Indian citizens, as it is on this day, in 1949, the Constitution of India was adopted. mid-day spoke to two constitutional experts who pointed out how the Constitution has undergone 105 amendments since being implemented on January 26, 1950, but the judiciary has ensured its sanctity through proactive steps. When the executive and the legislature have failed to provide respite to the public, it is the judiciary, through judicial activism, that has intervened to restore the constitutional mandate in an unbiased manner.

Advocate Floyd Gracias, a Supreme Court council, said, "Statutory law cannot keep changing on a daily basis to keep pace with the dynamism of societal changes. It is because of this that judicial interpretations and expansions have enabled laws to stay relevant in an ever-changing society. The landmark judgment on IPC Section 377 is a perfect example of how the law needs to evolve with time." "...the letter of the law may be relatively static [which gives it the consistency], but it is the judicial activism that brings to life the spirit of the law," Floyd concluded.

Adding to this, Advocate Shreeprasad Parab, a constitutional expert, said, "Judicial activism is the positive role played by the judiciary in the protection of the rights of the citizens and in the advancement of justice in the society. Thus, it implies the assertive role played by the judiciary to force the other two organs, i.e. the legislature and the executive, to discharge their constitutional duties." Citing 105 amendments to the Constitution, he said, "...despite the large number of amendments, the hopes and ideas of the Constitution's framers remain intact. We owe this principally to the judicial activism of our constitutional courts."

Also Read: Constitution Day 2022: Read here the full text of Preamble to the Constitution of India

Recent examples of judicial activism

According to Advocate Parab, these are some of the recent cases wherein courts played a proactive role to uphold the rights of the citizens:

>> Section 377: In 2018, a Constitutional bench of the SC read down Section 377, thus protecting the rights of the LGBTQI community. "Constitutional morality shall prevail over social morality," it said.

>> Sabarimala case: The SC in 2018 held that prohibition of entry to women based on biological factors is against the constitutional morality of Article 25 of the Indian Constitution.

>> Yakub Memon case: In July 2015, the SC opened the doors of the court at 3 am to hear his final mercy plea, and held that the Right to Life extends to not only innocent citizens, but also an accused.