Certain legal circles are showing concerns over the proactive role our judiciary is playing in restoring fundamental rights to the common man, and taking cognizance of corrupt practices in institutions of public importance. This proactive role which is termed as judicial activism has been defined in Black’s Law Dictionary as, “a philosophy of law-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” Thus according to them any order or decision which is coloured by a judge’s subjective mind rather than the literal application of law would amount to a legal aberration and is therefore likely to cause miscarriage of justice. But the fact remains that when a judge is engaged in the task of sifting truth from falsehood, his objective and subjective faculties are simultaneously at work, and in respect of most of the questions before him, the bare literal application of law would neither be adequate nor desirable.

Judicial activism is not a new phenomenon; it has grown over time with the failure of the executive to fully cope with the aspirations of the people becoming increasingly conscious of their rights in a fast changing world. The earliest seeds of its growth can be found about two hundred years ago, when Justice Marshall of the United States decided the celebrated case of Marbury vs Madison.

Judiciary began to be active in Pakistan from mid 80’s onward, when Gen Zia lifted the Martial Law, restored the 1973 constitution by making the Objective Resolution (Art. 2-A) as substantive part of the constitution. This introduction, later indirectly closed the doors of the traditional legal system. Even the courts could take suo moto notice or any person could file a petition to draw the attention of the court about infringement of any of the fundamental rights. Public Interest litigation (PIL) became common, and relief to the public was given by freely invoking the Fundamental Rights enshrined in the constitution. Thus it became common that the proceedings initiated through suo moto powers for the violations of fundamental rights used to be converted into a petition under Art 184-(3). Thus the period from 1990 to 1995 was the golden period of development of PIL. But this suo moto jurisdiction of the courts was regarded by some legal circles as too arbitrary since it freed the courts from all procedures and precedents.

Similarly the suo moto cases regarding the random crimes of heinous nature, deaths by kite-strings, cases of bonded labour, inhuman treatment in jails, NICL scam, Hajj corruption, Ephedrine scam, cases of missing persons, and rulings on scores of other public issues were widely welcomed by the public already wary of bad governance of the present rulers. One major benefit of judicial activism was that it gave relief to millions of poor and helpless people who were unable to knock the doors of the courts for relief. 

Much has been said against judicial activism. It has been said that it purports to upset the delicate balance of powers between the three organs of the state as defined by the constitution. These are certainly matters which need serious consideration. Unless pro-active role of judiciary is balanced by a cautious self-restraint and is judiciously and sparingly exercised in very genuine cases, it is likely to degenerate into arbitrariness. It has been rightly said that judicial activism is a double-edged sword; the line between its use and abuse must remain as wide as possible. In societies which are plagued by rank corruption, bad governance and criminal apathy of its rulers, the judiciary, if it is alive to the hardship of the public, automatically fills the gap, by taking the front seat and steering the nation to health and safety.

ZAFAR AZIZ COUDHRY,

Lahore, November 2.