“RULE OF LAW”,”SEPERATION OF POWER”,”INDEPENDENCE OF JUDICIARY”,”SUPERMACY OF FUNDAMENTAL RIGHTS OVER DIRECTIVE PRINCIPLE”, NON ENFORCEABLE” FUNDAMENTAL DUTIES”, were introduced by the passage of time. The “JUDICIAL RESTRAINS”, “JUDICIAL PRECEDENTS”& “CERTAINTY OF LAW”

HUMAN RIGHT JURISPRUDENCE & JUDICIAL ACTIVISM

YOGESH KUMAR SAXENA  ( ADVOCATE HIGH COURT )

The instrument of status quo upholding the traditions of ANGLO-SAXON JURISPRUDENCE and resisting radical innovations in the use of judicial power is no more in existence.  Concepts such as “RULE OF LAW”,”SEPERATION OF POWER”,”INDEPENDENCE OF JUDICIARY”,”SUPERMACY OF FUNDAMENTAL RIGHTS  OVER DIRECTIVE PRINCIPLE”, NON ENFORCEABLE” FUNDAMENTAL DUTIES”, were introduced by the passage of time. The “JUDICIAL RESTRAINS”, “JUDICIAL PRECEDENTS”& “CERTAINTY OF LAW” were used conveniently to avoid and dilute the effect whenever it was so required. Thus the resultant legal culture was the same as we have in pre-independent days. The expansion of the Doctrine of LOCUS STANDI to the citizen and democratisation of remedies are not on speaking terms. Thus the role of Locus- Standi is required to be dealt with by Judicial activism by the courts dealing with the Constitutional rights. There are very less number of fundamental right & larger number of duties imposed in the chapter dealing with fundamental right in our constitution of India.  Except   the  right   conferred  under  Article   19, there   is  no individual fundamental right to  the  citizen .  There  are some  collective right  to the  citizens .  The rest of   the Articles are the fundamental  duties of  the government towards its citizen .

The promised “ TRYST WITH DESTINY” to achieve the change were determined on the interpretation of the constitution. The judicial power are often not represented in judicial  forums and appears to be at the receiving end of mal-administration and subjected to exploitation for the  litigant. The greatest contribution of judicial activism is  to ensure the feeling in the mind of common citizen that he may represent in judicial forum.

In a democracy, people have the right to criticise judges and take them to task if they fail to perform properly, Justice Markandey Katju, Chief Justice of the Madras High Court, said here on Sunday.

At the first anniversary celebrations of the Madurai Bench of the High Court, Mr. Justice Katju said: "We are proud servants of the people. So, do not take offence when they criticise us... Nobody has administrative control over a High Court Judge. Our conscience is the control."

Differing with the views presented by MP E.N. Sudharsana Nachiappan, he said: "It is not for the judiciary to keep the legislature or the executive on the right path. They should by themselves follow the proper path. There is separation of powers under the Constitution and I always believe that judges must not enter into the executive or the legislative domain but for some exceptional cases."

On the shortage of judges in the Court, he said: "When the Bombay High Court has all 60 sanctioned posts filled, the situation in Madras High Court is that out of a sanctioned strength of 49 judges, 25 posts are lying vacant. Does Tamil Nadu deserve this? I can only request the constitutional authorities to expedite the process of filling the vacant posts." However, the judges cannot take excuse over the lack of strength for taking too long to decide on cases.

He appealed to the members of the bar to avoid requests for "unnecessary" adjournments.