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Judicial Activism


Judicial Activism The judges under the common law adversarial system are looked upon as neutral arbiters and not as activists, and they are not expected to decide a case unless the same is brought before them by the person or persons having locus-standi in the matter.

With the adoption of written constitutions in many Commonwealth countries higher judiciary has been entrusted with the function of enforcement of fundamental rights guaranteed under the Constitution. Litigation being costly affairs, down trodden and deprived sections of the people find it difficult, and at times impossible, to seek redress from the High Court Division of the Supreme Court against violation of such rights. Such violations can be redressed if their case is espoused by any public spirited person or any organisation. Though under the civil procedure code a group of affected persons or a public spirited person can bring a public interest litigation seeking redress from the subordinate court on behalf of the affected persons, there is no such provision in the country's constitution enabling one of the affected persons, or a public spirited person to seek redress from the High Court except in the case of a writ of habeas corpus or quo warranto.

Unless a person is aggrieved he cannot seek judicial review for enforcement of any fundamental right or against any administrative action. This question of locus-standi so long prevented a public spirited person to seek redress from the High Court Division on behalf of or in the interest of the socially and economically deprived. Though in 1974 in Beru Bari case this question was raised, the same was set aside by the Court observing 'Constitutional issue of grave importance can be heard as locus standi but does not involve court's jurisdiction to hear a person but the competency of the person to claim a hearing'.

Judicial activism started for the first time in 1992 when High Court Division issued a suo motu rule on the Deputy Commissioner of Satkhira on the basis of a newspaper report and ultimately directed release of a child named Nazrul Islam from custody. In Hafizur Rahman's case, High Court Division without the seeking of the Muslim divorced wife declared that she is entitled to get maintenance from her former husband till her remarriage or death.

However, Appellate Division subsequently on appeal reversed the same. High Court Division in a suo motu rule declared activities in support and opposition of hartal (public strike) as a criminal offence and directed authorities concerned to take cognizance of the same. Name of a child was omitted from the charge sheet by the police when High Court Division issued a suo motu rule on the basis of a newspaper report about implicating a child in a criminal case. But High Court Division has not yet issued any suo motu rule in the writ jurisdiction on the basis of newspaper report or letter from any affected person or his sympathizer like the Supreme Court of India except to take action against persons committing contempt of court. [Kazi Ebadul Hoque]

See also public interest litigation.