Critical Analysis of Role of Judicial Activism in Indian Politics

Exploring the Impact of Judicial Activism on Indian Politics

by Gagandeep Kaur*,

- Published in Journal of Advances and Scholarly Researches in Allied Education, E-ISSN: 2230-7540

Volume 16, Issue No. 1, Jan 2019, Pages 518 - 524 (7)

Published by: Ignited Minds Journals


ABSTRACT

Judicial activism is today a standout amongst the most misused constitutional terms. India practices constitutional democracy with accentuation on constitutionalism. This accompanies it to high rates of political exercises with abuse of political powers conceded in the Constitution by the political on-screen characters. Normally, the court is called upon to wear its dynamic stance and translate the Constitution as it influences the political class. The judiciary assumed an essential job in deciphering and carries new laws into reality with change needing the society. Progressively over as a dissident it has throughout the years turned into the overseer and underwriter of privileges of the minorities a marginalized area, poor and underprivileged areas of the society and made them access to justice by issuing different writs. The Judiciary has been doled out dynamic part under the constitution. Legal activism and legal limitation are parts of that uncourageous creativity and down to business intelligence. The possibility of judicial activism is thusly the perfect inverse of legal limitation.

KEYWORD

judicial activism, constitutional terms, constitutionalism, political activities, abuse of powers, interpretation of Constitution, new laws, society's needs, access to justice, writs

INTRODUCTION

Judicial activism portrays judicial rulings associated with being founded on close to home or political contemplations as opposed to on existing law. The topic of judicial activism is firmly identified with constitutional translation, statutory development, and separation of powers. Dark's Law Dictionary characterizes judicial activism as a "rationality of judicial basic leadership whereby judges permit their own perspectives about public policy, among different variables, to direct their choices." Judicial activism implies dynamic pretended by the judiciary in advancing justice. Judicial Activism to characterize extensively is the suspicion of a functioning job with respect to the judiciary. Ronald Dworkin, for instance, rejects an "exacting understanding" of the constitutional content since it limits constitutional rights "to those recognized by a restricted gathering of individuals at a fixed date of history." Judicial activism infers going past the typical requirements connected to legal advisers and the Constitution, which gives legal scholars the privilege to strike down any legislation or guideline against the point of reference on the off chance that it conflicts with the Constitution. Along these lines, ruling against majority conclusion or judicial point of reference isn't really judicial activism except if it is dynamic. In the expressions of Justice J.S Verma, Judicial Activism should fundamentally signify "the dynamic procedure of usage of the standard of law, essential for the preservation of an utilitarian democracy". In a modern democratic set up, judicial activism ought to be viewed as an instrument to check administrative adventurism and official oppression by enforcing Constitutional limits. That is, it is just when the Legislature and the Executive bomb in their duty or endeavor to maintain a strategic distance from it, that judicial activism has a task to carry out. At the end of the day, judicial activism is to be seen as a "damage control" work out, in which sense, it is just a temporary phase. Ongoing occasions have seen judiciary assume a nosy jobs in the regions of constitutionally held for different parts of governments. Issues in judicial activism emerge, when administration is clearly done by Mandamus. The Constitution of India operates in glad agreement with the instrumentalities of the official and the council. In any case, to be genuinely extraordinary, the judiciary exercising democratic power must appreciate freedom of a high request. Be that as it may, freedom could wind up hazardous and undemocratic except if there is a constitutional order with guidelines of good direct and accountability: without these, the robes may prove presumptuous. Judicial activism is the view that the Supreme Court and different judges can and ought to innovatively

Judicial activism trusts that judges assume a job as autonomous policy producers or free "trustees" for the benefit of society that goes past their traditional job as translators of the Constitution and laws. The idea of judicial activism is the total inverse of judicial restraint. Disappointment on part of the authoritative and official wings of the Government to give 'great administration' makes judicial activism a goal. Delivering justice to a populace of over a billion does not seem like and never will be a simple assignment. It anyway turns out to be progressively troublesome in a nation like India. The Executive, the Legislature and the Judiciary are the three wings of the Indian democracy.

HISTORICAL BACKGROUND OF JUDICIAL ACTIVISM

In a modern democratic set up, judicial activism ought to be viewed as a system to check legislative adventurism and executive control by enforcing Constitutional limits. That is, it is just when the Legislature and the Executive bomb in their duty or attempt to maintain a strategic distance from it, that judicial activism has a task to carry out. At the end of the day, judicial activism is to be seen as a "damage control" work out, in which sense, it is just a temporary phase. Late occasions have seen judiciary assume a meddling jobs in the regions of constitutionally held for different parts of governments. Issues in judicial activism emerge, when administration is evidently done by Mandamus. Judicial activism has as of late turned into a wellspring of heated discussion, particularly in the light of hyper action witnessed in the judicial part of government all through the states with administrative structures. In the course of recent decades, the term judicial activism has likewise turned into an immensely prominent instrument for reprimanding judge's conduct. In addition, through different dubious choices, judges of the Supreme Court and the High Courts of India, Justices of the United States just as different nations having government set-up, have by and by activated off the discussion on judicial activism that has dependably produced a great deal of warmth. Since quite a while, there has been an exuberant discussion on the job of judiciary in the administration of states. Judicial activism has developed as the most acceptable term to indicate judicial mediation past its limits around which such debates revolve. The possibility of judicial activism has been around far longer than the term itself. Prior to the twentieth century, legal researchers squared off over the concept of judicial legislation, that is, make a decision about making positive law. Where legislative capacity and an act or 'hopeless misconception.' Bentham, thusly, showed John Austin, who dismissed Bentham's view and safeguarded a type of judicial legislation in his popular addresses on statute. Be that as it may, in the principal half of the twentieth century, a surge of grant examined the merits of judicial legislation, and conspicuous researchers took positions on either side of the discussion. Thus, the seeds of judicial activism were sown by English concepts like 'equity' and 'common rights' and on the American soil, it bloomed into the concept of 'judicial audit. The concept of judicial activism which is another name for inventive understanding was not of the ongoing past; it was conceived in 1804 when Chief Justice Marshall, the best Judge of the English-talking world, chose Marbury v. Madison. Marbury was named Judge under the Judiciary Act of 1789 by the U.S. Central Government. Despite the fact that the warrant of arrangement was marked it couldn't be conveyed. Marbury brought an activity for issue of a writ of mandamus. By at that point, Marshall turned into the Chief Justice of the Supreme Court having been delegated by the active President, who lost the decision. Justice Marshall confronted the imminent prospect of the Government not complying with the judicial fiat if the case of Marbury was to be maintained. In an uncommon showcase of judicial statesmanship asserting the intensity of the Court to survey the activities of the Congress and the Executive, Chief Justice Marshall declined the help on the ground that Section 13 of the Judiciary Act of 1789, which was the establishment for the case made by Marbury, was unconstitutional since it presented infringing upon the American Constitution, unique purview on the Supreme Court to issue writs of mandamus. He saw that the Constitution was the crucial and fundamental law of the country and "it is for the court to state what the law is". He reasoned that the specific manner of the Constitution of the United States affirms and fortifies the rule expected to be essential to every single composed Constitution. That a law offensive to the Constitution is void and that the courts just as different divisions are bound by that instrument. On the off chance that there was strife between a law made by the Congress and the arrangements in the Constitution, it was the obligation of the court to authorize the Constitution and disregard the law. The twin concepts of judicial survey and judicial activism were along these lines conceived. In this manner it can say judicial activism is definitely not a monolithic concept.

TRANSFORMATION OF JUDICIAL ACTIVISM

At the point when the judiciary traverses the power by interfering the best possible working of the and by causing a grave break of the convention of separation of powers, the judicial activism ends up judicial adventurism, which is prevalently known as judicial overextend. As Mr. Boss Justice J. S. Verma expressed that, "Judicial activism is appropriate when it is in the area of genuine judicial audit. It should nor be judicial adhocismn or judicial oppression". The supervisory power isn't vested with unlimited right to address a wide range of hardship and it must be confined to the instances of grave dereliction of obligation and flagrant maltreatment of essential standards of law and justice. Consequently, for the sake of interpretation of the Constitution and the laws, the judiciary can't make new laws or revise the current laws. All the more explicitly, the court's obligation is to interpret the law and not to mediate in policy-production. Furthermore, the judiciary must exercise poise to save parity of powers among three organs endowed by the Constitution. For better understanding, the US Supreme Court has set out a down to business test for the situation Baker v Carr for judicial intervention in the issue with a political tone which determination is the precondition for judicial intervention, that the controversy under the watchful eye of the court must have a justifiable reason for activity and it ought not simply suffer from lack of judicially discoverable and sensible benchmarks to determine. Be that as it may, judicial activism ought not be utilized to prompt the Constitutional standards of separation of powers getting disintegrated.

TRENDS IN JUDICIAL RESTRAINT

Rising judicial activism was hindering administration in the nation and impacting development in Asia's third biggest economy, fund serve P Chidambaram said. "No place on the planet would we see perfect harmony among legislature and judiciary. Be that as it may, in India, we have seen intensifying judicial activism, which had affected the equalization of administration," Chidambaram said at The Economic Times Awards for Corporate Excellence. "The parity in India has swung far from the executive and the parliament," he said. "The judiciary has taken an advantage. Except if the executive has a last say, we can't have sustained high development rate. Nations like China, Brazil and Mexico, with a more grounded executive authority, have exhibited better development direction," he contended. "Judicial organizations can't assume control over administration. We should rediscover the harmony between our establishments and we need to reassert the harmony between changes, improvement and organizations," Chidambaram said. The Supreme Court in a request has said that the judiciary must cease from infringing on legislative and executive area else it will boomerang as political class venturing to take away their freedom. A seat comprising Justice AK Mathur and Justice practice restraint and over-extends its point of confinement there will undoubtedly be response from legislators and others. The lawmakers will at that point venture in and shorten the powers or even freedom of the judiciary. The judiciary should, accordingly, restrict itself to its appropriate circle, understanding that in a democracy numerous issues and discussions are best settled in a non-judicial setting." The court said that legitimization frequently given for judicial infringement into the area of the executive or legislature is that the other two organs are not carrying out their responsibilities legitimately. Notwithstanding accepting this is along these lines, a similar claim would then be able to be made against the judiciary too in light of the fact that there are cases pending in courts for 50 years, seat said. In the event that they are not releasing their alloted obligations, the cure isn't judicial impedance as it will abuse delicate equalization of intensity revered in the constitution, commented the court.

JUDICIAL ACTIVISM AND MARGINALIZED SECTIONS

The judiciary gave unique intensity of judicial activism in India which utilized in extraordinary circumstances by the judiciary. Yet, the judiciary is unfit to give the advantage to minority, dalits and other abused segments of society, which demonstrates that the marginalized segments and persecuted areas are discriminated by the judiciary because of lack of their genuine presence in the society. Because of their frail monetary situation of these classes are additionally effectively framed in false cases and the punishment is excessively brutal in, in light of the fact that they have a type of power and would not exist. Indian correctional facilities are loaded with the millions who need to battle your case to the lawyer does not have the cash, to individuals who might not have either never heard and there is likewise the law of the meeting in the absence of data or a decent attorney can't address since they can't represent themselves and they are condemned. Indeed, even so the judiciary is a free and ground-breaking organ in the nation that gives assurance to each class and the network. Yet, in spite of this numerous inadequacies in the judicial framework has impacted and suffered to the persecuted segments of society especially on minorities. India's legal framework and complex framework is one of the world's most costly, where the whole legal framework in English is still in court, where 70% of the nation individuals are unfit to comprehend the English language or legal. This a legal Aamir orchestrated the individuals who are simply instructed poor and less taught individuals today think about India's justice framework is too far Protection of minorities is the sign of a development. As indicated by Gandhiji, the case of a nation to

we judge whether a nation is really free is the measure of security appreciated by minorities. Privileges of minorities figured conspicuously in the Constituent Assembly. Our establishing fathers were profoundly concerned to guarantee full important security to the individuals from the minority networks exclusively and all in all. The minorities especially Muslims, Christians, Sikhs were anxious that their common and political rights might be ridden harsh shod by the majority network in spite of the mainstream claims of autonomous India. It is hard to survey the Supreme Court's job in the zone of common freedoms. The Court has, nonetheless, allowed the broad reduction of the person's rights… Over the years, no reliable and by and large policy is discernable. It appears as though the Court follows up on a specially appointed premise with an alternate accentuation on policy in various cases. It is far fetched if a steady and transformative pattern of choices on common freedoms is in the offing." (Rajeev Dhavan, Judges on Trial, 1980). It is hard to evaluate the Supreme Court's job in the region of common freedoms… The Court has, be that as it may, allowed the broad reduction of the person's rights. Throughout the years, no reliable and generally speaking policy is discernable. It appears as though the Court follows up on an impromptu premise with an alternate accentuation on policy in various cases. In the battle against terrorism, states face the problem of balancing security with freedom. As Waldron (2003) points out, any parity incorporates the possibility that the freedoms of few could be held hostage to the security of the majority, that the obtrusive intensity of the state could expand, that the ensuing security could be more representative instead of genuine. Terrorism incites larger amounts of insecurity and more noteworthy eagerness with respect to residents to enable legislatures to order laws notwithstanding permitting mystery preliminaries, confinement without preliminary, reconnaissance and even torment. Public dread of fear based oppressor assaults may make majority conclusion tilt towards security worries to the detriment of common freedoms, however the judiciary should be the last bastion when every single other organization surrender to partiality. Is it? Have the judges adjusted the requests of security with commitments of democracy? An assessment of the Indian Supreme Court on anti-terror cases is informative on the grounds that it reveals insight into the difficulties looked by judges in poor and multi-religious popular governments. Indian judges need to walk a troublesome way between maintaining a constitutional order of parliamentary (and majoritarian) power in crisis laws, and guaranteeing reasonable treatment to religious minorities. Interest Litigation (from this point forward alluded as "PIL") is the aftereffect of judicial activism, it rises up as proficient method for the higher judiciary to engage judicial activism. It was presented in Bangladesh as a result of the case Kazi Moklesur Rahman v. Bangladesh (in the future eluded as "Berubari Case") in which the concept of locus standi was raised and from now on, the concept was at long last settled for the situation Dr. Mohiuddin Farooque v. Bangladesh and others. Evidently, PIL shows a legal activity for reimbursing normal intrigue or for shielding from community complaint in which people have intrigue and by which their legal rights are encroached. As PIL permits any individual without being really wronged to actuate the judicial strategy, it ought to be considered as gadget by which public take an interest in judicial audit of authoritative activity. Despite the fact that the court can take PIL case on sou moto job and can engage its obligations through judicial activism.

ORIGINAL UNDERSTANDING AND CONSTITUTIONAL INTERPRETATION

It is no uncertainty that today the judicial activism is molded as a road for the judiciary to keep up its capacity as stronghold of justice. To go about as the interpreter of the constitution, the judges enclose sincerity unique in relation to their ideological methodology. In this way, various support frameworks of the constitutional interpretation are presented as progressively democratic. The judge may demonstrate their judicial acumen to interpret that may conflict with the unique circumstances or substance of the legislature; however judicial words have no self-enforcing powers. For interpreting the resolutions, the judges have constrained by targets and by perceptible sources. Based on jurisprudential view, the techniques for judicial interpretation are not direct. The judges dependably try to discover the plan of the legislature and must continue to fill rest of the legislation, despite the fact that it might be presented another judicial view. Especially, if the court depends entirely on peculiarity method of interpretation, it will lose the outskirt setting of the resolution. As Bangladesh is a precedent-based law nation, the courts have converged with the principle of purposive methodology (for example purposive development and interpretation). Here, the treated intensity of judicial survey is the wellspring of purposive development. In the event that the plain development neglects to maintain the reasons for the legislature, the court is in the situation to contribute for satisfying the lacunas. All things considered, the judiciary can't build the new laws by righteousness of judicial interpretation and its capacity is jus dicere (for example to clarify the law), not just dare (for example to announce the law). The question goals is the essential obligation of the judiciary and is served through twelve methods, for example judicial solidness, judicial interpretation, majoritarianism and independence (for example interfering with policy choices or giving answers for the administration), judicial thinking (for example breaking down the profession in regards to procedural grounds and sustentative grounds), limit activism (for example regardless of whether perception relies upon standards of locus, deferrals, legitimacy, etc ), judicial transmit (for example augmenting the extents of judicial survey), talk (for example having influential impact), obiter dicta (for example sees past the particular inquiry), dependence on near sources, judicial voices, degree of choice, legal foundation (for example decide the resolutions whether unambiguous or dubious or inadequate). The judiciary is dependence that the power relating the interpretation maintains the public request by extending the constitutional rights and their usage, not on exacting juristic sense50 and keeping in the mind the specialized issues and issues of policy. Question identifies with the constitutionality of the law, the court manages the constitutionality and the individual oppressed and gives the perception just in solid cases. Along these lines, the prime capacity of the judiciary is to interpret the target of the designer through the concept of development and Justice Dawson considered this as "anything by any stretch of the imagination" because of the absence of parliamentary law making process. The summit makes a decision about give notification and screen the way of performing obligations of the executive. Here, the judicial activism isn't as unguided rocket. Strangely, the judge isn't in law making position, however in fact the way toward settling the question makes law. Unquestionably, the judicial activism offers the judges to go past the formalism and to hold a judicious methodology for guaranteeing appropriate justice.

ARTICLE 21 AND JUDICIAL ACTIVISM

Article 21 communicates: "No individual may be precluded from claiming his life or individual opportunity except for according to system set up by law." In A.K. Gopalan v. State of Madras, the Indian Supreme Court expels the dispute that to prevent a man from claiming his life or opportunity not simply the technique suggested by law for doing all things considered ought to be taken after also that such framework must be sensible, reasonable and just. To hold by and large is available the due method proclamation in Article 21 which had been intentionally neglected when the Indian Constitution was being bound. In any case, thusly in Maneka Gandhi v. Association of India, this essential of substantive fair treatment was brought into Article 21 by legal explanation. Along these lines, the due methodology condition, which was purposefully and introduced by legal activism of the Indian Supreme Court. Another exceptional field of legal activism was begun by the Indian Supreme Court when it deciphered the word 'life' in Article 21 to mean not minor survival but instead a presence of pride as a person. Thusly the Supreme Court in Francis Coralie versus Union Territory of Delhi held that the benefit to live isn't kept to insignificant animal nearness. It infers something more than just physical survival. The Court held that:"... the benefit to life joins the benefit to live with human regard and all that goes with it, explicitly, the revealed necessaries of life, for instance, adequate sustenance, pieces of clothing and safe house and workplaces for scrutinizing, forming and conveying one-self in various structures, straightforwardly moving about and mixing and combining with related individuals." The 'right to security' which is another benefit was examined into Article 21 in R. Rajagopal Vs. State of Tamil Nadu. The Court held that a national has a benefit to shield the security of his own, his family, marriage, generation, parenthood, kid bearing and guidance, among various issues. The Supreme Court moreover chosen that the benefit to life guaranteed under Article 21 Includes the benefit to work too. The benefit to sustenance as a bit of appropriate to life was moreover seen in KapilaHingorani Vs. Association of India whereby it was obviously communicated. That it is the commitment of the State to give palatable techniques for occupation in the circumstances where people can't shoulder the expense of sustenance. appropriate against inappropriate conduct, perfect to therapeutic help with case of incidents, perfect against confinement, perfect against authoritative and bar shackles, perfect to convenient preliminary, perfect against police shock, torment and custodial viciousness, perfect to legal guide and be shielded by a beneficial legal instructor of his choice, perfect to meeting and visitors as shown by the Prison Rules, perfect to least wages, etc. Have been ruled to be fused into the outpouring of 'appropriate to life' in Article 21. Starting late the Supreme Court has composed giving a minute home to Asiatic Lions vide Center for Environmental Law V. Association of India (writ advance to 337/1995 picked 15.4.2013) on the ground that verifying the earth is a bit of Article 21. The benefit to rest was held to be a bit of Article 21 vides In Ramlila Maidan (2012) S.C.I.1. In AjayBansal versus Union of India, Writ Petition 18351/2013 vide mastermind dated 20.6.2013 the Supreme Court composed that helicopters be suited stranded individuals in Uttarakhand. Thusly we see that an a lot of rights have been held to emanate from Article 21 in perspective on the legal activism showed up by the Supreme Court of India.

1. Judicial activism is the interpretation of the constitution to advocate contemporary regards and conditions. Of course, legal restriction is compelling the forces of the judges to strike down a law. 2. In the legal limitation, the court should transfer all exhibitions of the congress and the state administering bodies except if they are manhandling the constitution of the country. In legal restriction, the courts generally concede to elucidations of the constitution by the congress or some other protected body. 3. In the matter of legal restriction and legal activism, the judges are required to use their vitality to change any dishonor especially when the other holy bodies are not acting. This infers judicial activism has an extraordinary part in characterizing social methodologies on issues like security of benefits of an individual, social uniformity, open significant quality, and political dishonor. 4. Judicial activism and legal limitation have assorted targets. Legal restriction helps in ensuring a modification among the three parts of government, legal, official, and regulatory. For this situation, the judges and the court bolster reviewing a present law rather than changing the Existing law. 5. When talking about the targets of legal activism, it enables to overrule certain exhibits or decisions. For example, the Supreme Court or a redrafting court can upset some past decisions if they were flawed. This legal structure in like manner goes about as balanced administration and keeps the three parts of government, legal, official and definitive from twisting up observably exceptional. 6. Judicial activism is the elucidation of the constitution to advocate contemporary regards and conditions. Legal restriction is compelling the forces of the judges to strike down a law. In legal restriction, the court should transfer all exhibitions of the congress and the state lawmaking body except if they are ignoring the constitution of the country. 7. Judicial restriction Judges should look to the principal point of the columnists of the Constitution. Legal activism judges should look past the main motivation behind the originators. protected bodies are not acting. Legal activism has an unfathomable part in figuring social courses of action on issues like affirmation of benefits of an individual, social equity, open significant quality, and the political despicableness. Legal activism can be seen as an unpredictable imagined by legal by delievering productive decisions and offering reliefs to the wronged by the great and social equity where statutory law is calm or even inverse. Dynamic elucidation of a present game plan so as to improve the utility of an order for social headway can be seen as a legal activism. Basically, it very well may be moreover expected that legal activism becomes possibly the most important factor when there is a regulatory limitation or authority intercession or both. In the field of human right rule, normal edges, unfriendly to the death penalty cases legal activism contributed an impressive measure. Degree of Art.21 expanded due to dynamic legal interpretation. In Maneka Gandhi versus Union of India. Rudal shah versus State of Bihar, Hussain ara khatoon v. State of Bihar, etc… it very well may be seen. Regardless, it is also to be seen that legal activism should not to advance toward getting to be adventuralism. Choice among activism and limitation should be on the reason of an obvious and clean policy. Judicial persistence is a theory of legal elucidation that asks the judge to limit their action of vitality. Additionally, the genuine limitation in legal creativity starts from the awareness of the need to keep up an alteration among the three parts of government. Thus as a great deal of impedance by legal impairs smooth organization; they survive from limitation also impacts the structure horribly. As an over the top measure of legal activism would make an antagonistic impact on the situation of the Judiciary itself, a great deal of restriction would have a self-annihilating effect. If the courts are not prepared to check abuse of definitive and authority control by the very raison d'tre of legal association would be vanquished. Such a mistake as for the legal would wreck the assurance of the all-inclusive community in legal foundations, just as in vote based procedure. Some portion of Higher legal under the constitution tosses on it a marvelous responsibility as the sentinel to watch the estimations of the constitution and the benefits of the Indians. Court must act inside their judicially tolerable restrictions to keep up the keep running of law and seat their vitality out in the open interest.

CONCLUSION

The Judicial Activism has contacted pretty much every part of life in the present occasions. Be it the instance of fortified work, illegal detainments, arrangements of the constitution, ecological issues, wellbeing, sports and so forth the courts took insight of each case and set down various decisions to secure the essential human privileges of every single individual from society. Be that as it may, the government officials and some constitutional specialists condemn judicial activism and then again the legal counselors and public has invited it with warm hands. It is imperative to take note of that judicial Activism has such a large number of merits yet it has certain demerits. Here note that we can't lead the legislature on judicial premise as it were. Judicial activism has been reprimanded by numerous commentators expressing that it is violating the guideline of separation of intensity. Be that as it may, as judiciary being defender and watchman of rights and last interpretor of constitution, it has vested with extreme capacity to strike down or extends various arrangements of the constitution and existing laws. At present judicial activism has been all around broadly utilized in India for interpreting various existing laws and constitutional arrangements. Judicial activism in India when contrasted with different nations of the world is extremely ground-breaking and is recognized by expansive area of society.

REFERENCES

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Corresponding Author Gagandeep Kaur*

Research Scholar, Department of Political Science, Punjabi University, Patiala sidhugagan254@gmail.com