Judicial activism is essentially action by the judiciary to realize social justice, said Justice Indira Banerjee of the Supreme Court on Tuesday. She was speaking here on ‘Judicial Activism versus Judicial restraint’. The 1997 Vishakha judgment on sexual harassment at the workplace and a more recent one on women’s rights in the Sabarimala temple case were notable, she said.
“I was reading bitter criticism saying the judgment crossed limits. Whether correct or wrong, not for me to judge,’’ she said, addressing judges and lawyers in the historic Central court room of Bombay high court. “But a question had arisen under Article 14 (right to equality). It is a temple run by a statutory board and women were excluded. Whether women may want to go or not—some may not-—but women were being restrained and a case for interference was at least made out under Article 14,’’ she said at the talk organized by the Bombay Bar Association. “What would constitute judicial overreach would depend on facts and circumstances,’’ said the judge who hails from Kolkata and was earlier chief justice of Madras HC.
Emphasizing that separation of power is for a reason as French philosopher Baron de Montesquieu had said, she asked, “Is the judiciary expected to be inactive, tardy or inert…?” she asked, adding, “No, I don’t think so.”
“I don’t think there is any wrong if our judiciary is labelled an activist judiciary…If there is a vacuum that denies citizens their fundamental right…” judicial activism can be “a remedy’’ she said.
She noted the recent judgments including those on privacy and gay rights. Before her, chief justice Naresh Patil and BBA president Milind Sathe and secretary Birendra Saraf had underlined the need for the laws. CJ Patil said, “Judges can interpret and broaden concepts of law if it helps in larger public interest.”