The Role of a Judge - What It Is and what It Ought to Be: The Independence of Judiciary and Judicial Activism Clothed in Judicial Review in Sri Lanka

Abstract

On 24th March 2015, the Indian Supreme Court struck down Section 66A of the Information Technology Act 2000, and termed it 'unconstitutional'. In this landmark judgment which perpetuates the freedom of expression, the Supreme Court struck down a provision in the Cyber Law which makes available power to arrest a person for posting allegedly 'offensive' content on websites. This shows that the provision 'clearly affects' the fundamental right to freedom of speech and expression enshrined under the Indian Constitution 1949. The recent phenomenon shows that the independence of judiciary in India and their judicial activism over constitution and lastly towards the society. Do we have the same, No! Sri Lanka does not give credence to the apex judiciary. Under the Art.125 (1) of Constitution 1978, the Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and it should however be read with Art. 80 (3) which states that a Bill becomes law upon the certificate of the President or the Speaker, as the case may be being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever. As per the wording, 'any ground', the ultimate result of such an Act may be unconstitutional and/or unjust. Without having such a great weapon, judicial review, in the hands of judges, it is difficult to confirm the rights of the people and justice in the country. Judicial review needs to be crafted with the chisel of judicial activism which lay concrete on the way for adding personal or political consideration rather than on existing hard-hitting laws with the justice in mind. As a theory, judicial restraint which works on judicial interpretation encourages judges to limit the exercise of their own power. This is the point which should be addressed in the line of solidity of independence of judiciary and will be examined throughout the paper based on Sri Lanka experience.