1

Judicial Activism and Judicial Restrain: Issues and Concerns

Pranjal Srivastava
LL.M.IIndSem.

1-Introduction

The success of a democracy, especially one based on a federal system, depends

largely on an impartial and independent judiciary endowed with sufficient powers to
administer justice. The framers of the Indian Constitution, therefore, thought it fit to
entrust the judiciary with vast powers. The trinity of an independent judiciary,
independent constitutional review, and the supremacy of law operate together for the
working of a constitutional government.

The Trinity – Legislative, Judiciary and the Executive-is an accomplished

phenomena, Harmonious existence is a theory.1 Montesquieu- a French Philosopher,
believed that concentration of power in one person or group results in disastrous
consequences. Therfore, governmental functions shall be vested in three different
organs the Legislature, the Executive and the Judiciary. He further felt that each organ
should be independent from others and they should not interfere with each other. His
principle of Separation of Powers can be encapsulated as follows:2

1. Each organ should be independent of another.

2. No one organ should perform functions that belong to the other.

For any of the two combined together could lead to disastrous consequences. For
instance if Judiciary combines with the Executive, it will result in judges becoming
violent and oppressive. If the Judiciary combines with the Legislature, there would be
no liberty. And if the Executive and the Legislature combine it would lead to
arbitrariness. Thus following Montesquieu theory of Separation of Powers, the
functions of the three organs of the Government can be categorised into Policy
Making [Legislative Function], Policy Implementation [Executive Function] and
Policy Adjudicating [Judicial Function].

Two prominent constitutional functionaries recently expressed their concern over the
role played by the Indian Judiciary. The dividing line between judicial activism and
overreach is a thin one, ... a takeover of the functions of another organ may, at times,
1
Susant Chatterji , ‘“For Public Administration”: Is Judicial Activism Really Deterrent to Legislative
Anarchy and Executive Tyranny?’,The Administrator,Vol.XLII,April-June 1997,pp 9-24
2
Montesquieu,Charles de Secondat,The Spirit of Laws, translated by Thomas Nugent,p.346
 2

become a case of overreach, said the Prime Minister Dr. Manmohan Singh while the
Lok Sabha Speaker Somnath Chatterji maintained, Judiciary is not an overriding
authority and no organ has the right to emphasize powers of another, These assertions
have, in the wake of several apex court rulings, striking down executive decisions and
parliamentary legislations- the latest being the constitutional validity of Schedule
Nine and the stay on implementing 27 percent quota for backward class students,
encouraged another round of discussion as regards judicial review under the
Constitution.

2-What is Judicial Activism?

The definition of "judicial activism" is an intense ongoing debate. According to

Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the
judiciary of protecting or expanding individual rights through decisions that depart
from established precedent or are independent of or in opposition to supposed
constitutional or legislative intent".

“Activism’ means “a policy of vigorous action of a philosophy or a creative will3” or

“The doctrine or policy of being active or doing things with decision”. Judicial
Activism would therefore mean taking recourse to judicial process leading to judicial
pronouncements on different intricate issues whereby new approach towards legal
philosophy is made or to put it simply it is active role played on the part of the
Judiciary.

Judicial activism is a political term used to describe judicial rulings that are suspected
to be based upon personal and political considerations other than existing law.
Judicial restraint is sometimes used as an antonym of judicial activism. Concerns of
judicial activism are closely tied to:-
1.Constitutiona Interpretation,
2. Statutory Construction, and
3. Separation of Powers.

Angioplasty is a procedure used by doctor to open the closed arteries supplying blood
to the heart which is essential to support the living in the human beings, similarly
according to me it’s essentially the Judicial Activism of the judiciary which is doing
the angioplasty of the separation of powers. Generally we consider that it is essential
that all the three i.e. Judiciary, Legislature and Executives must play their role in a
3
Chambers 20th Dictionary
 3

manner that will appropriately bring into effect the provision of the Constitution. But
still we can say that it is the Judiciary which is the non-elected and doing the
Angioplasty of Separation of Power by infusing stent into the heart of the Constitution
by making it to remain alive the spirit of the Founding fathers.

In the words of Justice J.S.Verma, Judicial Activism must necessarily mean “the
active process of implementation of the rule of law, essential for the preservation of
functional democracy”. According to Prof. Upendra Baxi, “Judicial Activism is an
ascriptive term. It means different things to different people. While some may exalt
the term by ascribing it as judicial creativity, dynamism of the judges, bringing a
revolution in the field of human rights and social welfare through enforcement of
public duties etc., others have criticised the term by ascribing it as judicial extremism,
judicial terrorism, transgression into the domains of the other organs of the State
negating the constitutional spirit etc.”

According to Black's Law Dictionary, judicial activism is "a philosophy of judicial

decision-making whereby judges allow their personal views about public policy,
among other factors, to guide their decisions, usually with the suggestion that
adherents of this philosophy tend to find constitutional violations and are willing to
ignore precedent."

Judicial activism describes judicial ruling suspected of being based on personal or

political considerations rather than on existing law. It is sometimes used as an
antonym of judicial restraint. The definition of judicial activism, and which specific
decisions are activist, is a controversial political issue, particularly in the United
States. The question of judicial activism is closely related to constitutional, statutory
construction, and separation of powers.

3-Origin of Judicial Activism

The concept of judicial activism which is another name for innovative interpretation
was not of the recent past; it was born in 1804 when Chief Justice Marshall, the
greatest Judge of the English-speaking world, decided Marbury v. Madison1.
Marbury was appointed Judge under the Judiciary Act of 1789 by the U.S. Federal
Government. Though the warrant of appointment was signed it could not be delivered.
Marbury brought an action for issue of a writ of mandamus. By
then, Marshall became the Chief Justice of the Supreme Court having been appointed
by the outgoing President, who lost the election. Justice Marshall faced the imminent
 4

prospect of the Government not obeying the judicial fiat if the claim of Marbury was
to be upheld. In a rare display of judicial statesmanship asserting the power of the
Court to review the actions of the Congress and the Executive, Chief Justice Marshall
declined the relief on the ground that Section 13 of the Judiciary Act of 1789, which
was the foundation for the claim made by Marbury, was unconstitutional since it
conferred in violation of the American Constitution, original jurisdiction on the
Supreme Court to issue writs of mandamus. He observed that the Constitution was the
fundamental and paramount law of the nation and "it is for the court to say what the
law is". He concluded that the particular phraseology of the Constitution of the United
States confirms and strengthens the principle supposed to be essential to all written
Constitutions. That a law repugnant to the Constitution is void and that the courts as
well as other departments are bound by that instrument. If there was conflict between
a law made by the Congress and the provisions in the Constitution, it was the duty of
the court to enforce the Constitution and ignore the law. The twin concepts of judicial
review and judicial activism were thus born.

Bradley Canon posited six dimensions along which judge courts may be perceived as
activist are:
1. Majoritarianism — This dimension takes into account the degree to which
policies adopted through the democratic process are judicially overturned.
2. Interpretive stability — This dimension takes into account the degree to which
court decisions alter earlier decisions, doctrines, or constitutional interpretations.
3. Interpretive fidelity — This dimension takes into account the degree to which
constitutional provisions are interpreted contrary to the clear intentions of their
drafters, or the clear implications of the language used in the provision. (See also
judicial interpretation)
4. Substance/democratic process — This dimension takes into account the degree
to which judicial decisions make substantive policy, as opposed to acting to preserve
the democratic political process.
5. Specificity of policy — This dimension takes into account the degree to which a
judicial decision establishes policy itself, as opposed to leaving discretion to other
agencies.
6. Availability of an alternate policymaker — This dimension takes into account
 5

the degree to which a judicial decision supersedes or inhibits serious consideration of

the same problem by other government agencies.

Some proponents of a stronger judiciary argue that the judiciary helps provide checks
and balances and should grant itself an expanded role to counterbalance the effects of
transient majoritarian, i.e. there should be an increase in the powers of a branch of
government which is not directly subject to the electorate, so that the majority cannot
dominate or oppress any particular minority through its elective powers. Moreover,
they argue that the judiciary strikes down both elected and unelected official action,
that in some instances acts of legislative bodies reflect the view the transient majority
may have had at the moment of passage and not necessarily the view the same
legislative body may have at the time the legislation is struck down, that the judges
that are appointed are usually appointed by previously elected executive officials so
that their philosophy should reflect that of those who nominated them, that an
independent judiciary is a great asset to civil society since corporations and the
wealthy are unable to dictate their version of constitutional interpretation with threat
of stopping political donations.

4-Judicial Activism in India

During the last two decades, judicial activism has played a major role in protecting
the rights and freedoms of individuals, as guaranteed under the constitution. After the
landmark decision in the Menka Gandhi’s case, courts have assumed an activist
posture and come forward to the rescue of aggrieved citizens. In a number of cases,
subsequent to the Menka Gandhi’s case, the judiciary interpreted the constitutional
provision in its wider possible meaning to protect basic civil liberties and fundamental
rights.
During this period, our judiciary developed the concept of social action litigation and
public interest litigation by discarding the traditional and self-imposed limitations on
its own jurisdiction. In 1975, Justice VR Krishna Iyer for the first time in the Bar
Council’s case advocated the liberal interpretation of locus standi in public interest
litigation. He observed that in a developing country like India, public-oriented
litigation better fulfils the rule of law if it is to run close to the rule of life.
The concept of public interest litigation took a clearer shape through the remarkable
judgment in what is popularly known as the case of the judges’ transfer. In this case,
Justice Bhagwati said that the traditional rule was of ancient vintage and arose during
 6

an era when private law dominated the scene. Justice Bhagwati observed that there is
an urgent need to innovate new methods and devise new strategies for the purpose of
providing access to justice to the large masses of people who are denied their human
rights and to whom freedom and liberty have no meaning. The courts have a duty to
utilize the initiative and zeal of public-minded persons and organizations by allowing
them to move the court and act for general or group interest.

Justice Bhagwati further developed the idea of social justice through courts in another
case in which he observed, “The time has now come when the courts must become the
court for the poor and struggling masses of this country. They must shed their
character as upholder of the established order and the status quo. They must be
sensitized to the need of doing justice to the large masses of people to whom justice
has been denied by a cruel and heartless society for generations. It is through public
interest litigation that problems of poor are now coming to the forefront and the entire
theatre of the law is changing. It holds out great possibilities for the future.”
The Supreme Court initiated this case by converting a letter written by the People’s
Union for Democratic Rights. The letter, addressed to one of Supreme Court judges,
was based upon a report made by a team of three social scientists who were
commissioned by the People’s Union for Democratic Rights for the purpose of
investigating and inquiring into the condition under which workmen were employed
in the construction work of various projects connected with the Asian Games. In this
case, the Supreme Court came down heavily against critics of public interest
litigation.
It was observed that those who were decrying public interest litigations, did not seem
to realize that the courts are not meant only for the rich and the well-to-do, for the
landlord and the gentry, for the business magnate and the industrial tycoon but they
exist also for the poor and the downtrodden, the have-nots and the handicapped and
the half-hungry millions. It is only the moneyed that have so far had the golden key to
unlock the doors of justice. But now, for the first time, the portals of the court have
been being thrown open to the poor and the downtrodden, the ignorant and illiterate
and their cases are coming before the courts through public interest litigations.
Public interest litigation and judicial activism has touched almost every aspect of life.
Be it the case of bonded labour, rehabilitation of freed bonded labour, payment of
minimum wages, protection of pavement and slum dwellers, juvenile offenders, child
 7

labour, illegal detentions, torture and maltreatment of woman in police lock-up, the
implementation of various provisions of the constitution, environment problems, the
courts took cognizance of each case and laid down various judgments to protect the
basic human rights of each and every member of society.
Today, with the vast change in judicial process, the traditional rule of locus standi is
replaced by group action litigation. No doubt law regulates the society, but some time
society also regulates law. Changing aspirations of people also affects law.
Constitutions, courts and other parts of the judicial system are made for common
people. In the seventies, Justice Yashwant Vishnu Chandrachud observed, “It is really
the poor, starved and mindless millions who need the court protection for securing the
enjoyment of human rights.”
Realising the fact that in spite of all constitutional provisions and other enactments,
socio-economic justice remained a distant dream for the poor and down-trodden,
Justice Bhagwati invites judges to use their power to further the cause of social
justice.

In his work ‘Social Action Litigation: The Indian Express’ Justice Bhagwati observed
“Today, we find that in third world countries, there are large number of groups which
are being subjected to exploitation, injustice and even violence. In this climate of
conflict and injustice, judges have to play a positive role and they cannot content
themselves by invoking the doctrine of self-restraint and passive interpretation. The
judges in India have fortunately a most potent judicial power in their hands, namely
the power of judicial review. The judiciary has to play a vital and important role not
only in preventing the remedying abuse and misuse of power but also in
eliminating exploitation and injustice.”

5-Constitutional Position

The Constitution provides for sufficient provisions to maintain the theory of

Separation of Powers. Article 504 prescribes separation of the Judiciary from the
Executive. Articles 1215 and 2116 forbid the legislature from discussing the conduct of

4
50. Separation of judiciary from executive -The State shall take steps to separate the judiciary from
the executive in the public services of the State
5
121. Restriction on discussion in Parliament - No discussions shall take place in Parliament with
respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his
duties expect upon a motion for presenting an address to the President praying for the removal of the
Judge as hereinafter provided
6
211. Restriction on discussion in the Legislature - No discussion shall take place in the Legislature
of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the
 8

any judge in discharge of his duties. Articles 1227 and 2128 prohibit the courts from
sitting in judgement over the internal proceedings of the legislature. Article 105 (2)9
and 194(2)10 on the other hand, protect the legislators from interference of the courts
with regards their freedom of speech and expression.

Thus the Constitution of India, tries its best to inculcate Montesquieu’s theory of
Separation of Powers, but what actually happens when the Judiciary actually over
steps? And what exactly is ‘overstepping by the judiciary’. These questions have
remained unanswered by the Constitution.

Judicial review is a significant source of Judicial Activism. One can say that the seeds
of Judicial Activism were sown in Judicial Review. Though in India, the Constitution
does not specifically mention the power of Judicial Review, but it does mention that
any act violative of Fundamental Rights can be declared unconstitutional. Thus the
Judiciary can override the powers of the Legislature through Judicial Review. In India
power of Judicial Review is now considered to be a basic feature of the Constitution11.

Initially the power of Judicial review was limited to checking the acts or decisions
affecting fundamental rights, but lately the Judiciary has also started expressing its
concern in matters relating to social, developmental and environmental issues.

It could be easily said that the Emergency of 1975 and the period immediately
thereafter constituted defining moments for Judicial Activism in India. The infamous

discharge of his duties

7
122. Courts not to inquire into proceedings of Parliament -(1) The validity of any proceedings in
Parliament shall not be called in question on the ground of any alleged irregularity of procedure
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for
regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject
to the jurisdiction of any court in respect of the exercise by him of those powers
8
212. Courts not to inquire into proceedings of the Legislature - (1) The validity of any
proceedings in the Legislature of a State shall not be called in question on the ground of any alleged
irregularity of procedure
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for maintaining order, in the
Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those
powers
9
105(2). Powers, privileges, etc of the Houses of Parliament and of the members and committees
thereof- No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no person shall be
so liable in respect of the publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings
10
194(2). Powers, privileges, etc, of the House of Legislatures and of the members and committees
thereof-No member of the Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any committee thereof, and no
person shall be so liable in respect of the publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings
11
Kesavanand Bharti v. State of Kerala ,AIR 1962 SC 933
 9

ADM Jabalpur v Shukla12, popularly known as the Habeas Corpus case was decided
and was a blow to the civil liberties in India. The suspension of Article 21 prohibited
the challenging of any detentions made during that time. The Constitution was also
amended to permit the excesses of the Emergency. The Decision was strongly
condemned and “Judicial Activism” had a strong moral basis after the Emergency.

6-Judicial Restraint

The Supreme Court has in response to the judicial foray into unchartered territory,
developed and prescribed the doctrine of Judicial Restraint as a yardstick for the
judiciary to check itself. According to the apex court, with a view to see that judicial
activism does not become "judicial adventurism"; the courts must act with caution and
proper restraint.

Judicial restraint is consistent with and complementary to the balance of power among
the three independent branches of the State. It accomplishes this in two ways5. First,
judicial restraint not only recognizes the equality of the other two branches with the
judiciary, it also fosters that equality by minimizing inter-branch interference by the
judiciary. In this analysis, judicial restraint may also be called judicial respect, that is,
respect by the judiciary for the other coequal branches. In contrast, judicial activism's
unpredictable results make the judiciary a moving target and thus decrease the ability
to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it
may better function in a system of inter- branch equality. Second, judicial restraint
tends to protect the independence of the judiciary. The touchstone of an independent
judiciary has been its removal from the political or administrative process. Even if this
removal has sometimes been less than complete, it is an ideal worthy of support and
one that has had valuable effects.

7-Justice Katju, the voice of judicial restraint

“Judges do not speak for themselves except through their judgments." Nobody stands
better testimony to this adage than Justice Markandey Katju, a judge of the Supreme
Court, who through his consistent stance against judicial overreach has inadvertently
become the face of the doctrine of judicial restraint.

With Justice Katju's repeated judgments warning the judiciary to restrain itself from
dawning upon the roles and responsibility of other two organs of the State-the
legislature and the executive-he has now carved a slot for himself in the apex court.
12
AIR 1976 SC 1207
 10

The debate on judicial activism versus overreach has been brewing for quite some
time within and outside judicial forums but Justice Katju, true to his fearless style of
functioning, propounded it to a different level altogether by taking it to the portals of
the highest judiciary itself.

However ripples were bound to happen for the obvious reason that his sharp
observations and findings emanated from within the system. Quite naturally, it drew
sharp reactions- ranging from snubs by the Chief Justice of India to a fellow judge
disagreeing with him on most aspects observed by him, in several judgments.

But Justice Katju, who is not the kind to mince words, has time and again asked the
judiciary to tread its path cautiously and not cross the thin line between activism and
overreach. In his famous ruling in the Divisional Manager Aravali Golf Course vs
Chander Hass (2007) case-where the high court had tried to create a post to ensure the
reinstatement of an employee when the position did not exist-the judge categorically
asked judges not to cross their limits in the name of judicial activism.

"Judges must know their limits and must not try to run the government. They must
have modesty and humility, and not behave like emperors," were the searching
remarks aimed at judges by none other than a judge himself.

He quoted two SC cases-the Jagadambika Pal case of 1998 and the Jharkhand
assembly case of 2005-as instances of judicial overreach and as "two glaring
examples of deviation from the clearly provided constitutional scheme of separation
of powers".

The judge has always made his stance clear-be it in an article published in a news
magazine or during his tenure as Chief Justice of Madras High Court, where he
pronounced a landmark judgment in the Rama Muthuramalingam v. Dy. SP (2005)
case. Here too, the judge emphasised on judicial restraint and the impropriety of the
judiciary encroaching into the legislative or executive domain.

In a famous speech during the first anniversary of the Madurai Bench of the Madras
High Court, he said people have a right to criticise the judiciary as the people were
supreme in a democracy, and all authorities, including judges, were servants of the
people.

In his most recent pronouncement in Common Cause vs Union of India (2008),

Justice Katju-who had also served as the Chief Justice of the Delhi High Court before
 11

being elevated to the apex court in April 2006-explained the rationale for his stance
against activism. "It is often found that courts do not realise their limits...courts must
realise that there are many problems before the country, which courts cannot solve
however much they like," he said.

What stands out is his firm belief that courts cannot interfere with the government
policy as a matter of routine. "By now it is a well settled principle of law that policy
decisions of the Government should not be interfered in a routine manner unless the
policy is contrary to the provisions of statutory rules or of the Constitution," he said in
an order while setting aside a Orissa High Court judgment.

While Justice Katju may have earned all the admiration for advising caution and
restraint to ensure that "judicial activism does not become judicial adventurism", it
would be wrong to suggest that he's completely opposed to activism. In fact, it was
rightly added that it was not their "opinion that judges should never be 'activist' as
sometimes judicial activism is a useful adjunct to democracy, he held.

8-Judicial Activism vs. Judicial Restrain-

Having understood the meaning of the word Judicial Activism, it would be legitimate

to say that the line between the terms Judicial Activism and Judicial Over Reach is
difficult to draw. As the former Chief Justice of India, Justice Ahmadi has stated
“Sometimes this Activism has the potential to transcend the borders of Judicial
Review and turn into populism and excessivism”. Activism according to him, is
“populism when doctrinal effervescence transcends the institutional capacity of the
judiciary to translate the doctrine into reality, and it is excessive when a court
undertakes responsibilities normally discharged by other coordinate organs of the
government”13

Thus to one judge it maybe Activism while to the other it may be Over Reach. Or to
ones who may agree with the Judgement it maybe Activism and to those who disagree
it maybe Over Reach. It is difficult to lay down strict guidelines as to when it would
be Activism and when the Judiciary might be over reaching. But if we have a look at
some of the provisions of our Constitution like Article 32(Right to Constitutional
Remedies in the Supreme Court directly for enforcement of all fundamental rights),
Article 226 (power of high courts to issue certain writs) and Article 227 (power of

13
DR K.N Katju Memorial Lecture on ‘Separation of Powers and Judicial Activism in India’, New
Delhi,26 April 2007
 12

superintendence over all courts and tribunals by the high court), just goes to show that
the basic document of governance- our Constitution has provided for these
overreaching provisions. The Constitution has placed that responsibility of Judicial
Governance in the Judges of higher judiciary.

The entire concept of Judicial Activism could be said to be justified, because of

judiciary’s non elective character, due to which it can overcome counter majoritarian
– difficulties. Otherwise why neither the Executive nor the Legislature but only the
Judiciary alone should be the enforcing institution? It is because Judiciary is that
branch of the government with greatest institutional capacity to enforce the legal
norms in a disinterested way. The Legislature and the Executive because of their
vested interest of seeking re-election are prone to ignore constitutional limits to
pamper the electorate.

According to former Chief Justice of India Justice R.C Lahoti-

“ The true test of the legitimacy of any legislation was not weather it was made by
elected representatives but that was in conformity with the general will or the true
common good, and the general will or the common good could only be discovered or
formed by a process of dialectical reasoning.”

He gave the following reasoning for justifying the law making of the Judiciary-

1. Judges are fit candidates to make law since the rational dialectic comes
naturally to common law judges

2. Judicial decisions stand and fall on the strength of their reasons, and the
judicial law making role is more interactive and broad based than is usually
assumed.

3. Further, benefit of such law making is that it provokes the legislature to act, in
which case legislature maybe persuaded to replace the ad hoc legislation with
more comprehensive and proper legislation.

4. A great strength of the Judiciary in law making was that it is not elected and so
not beholden to vote banks.

5. Finally he gives a constitutional justification, that judges in India are bound by

their oath as Judges to play an active role in law making

Judicial Activism in a modern democratic set up is to be looked upon as an agency to

curb legislative adventurism and executive tyranny by enforcing Constitutional limits.
 13

Approach to Judicial Activism could be either negative or affirmative. It is negative

when the Judiciary declares the acts of the Legislature and Executive as intra vires or
ultra vires depending on its conformity with the Constitution. An affirmative
approach on the other hand is when the Judiciary sitting over to decide the validity of
a legislative measure or an executive action interprets the constitution in such a way
that it goes beyond the constituionalised value judgements.
9-Transgressing the Boundaries

This intolerance to the abuse of Judicial Activism had long been cumulating. The
Indian Courts, apparently, have forgotten their place in the Constitutional
arrangement. They have flagrantly breached the principle of Separation of Powers. As
pointed out by Hon'ble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L.
Dubey Lecture the Judiciary has intervened to question a 'mysterious car' racing
down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge,
specific bungalows for the Judges, pool, monkeys capering in colonies, stray cattle on
the streets, clearing public conveniences, levying congestion charges at peak hours at
airports with heavy traffic, etc. under the threat of use of contempt power to enforce
compliance of its orders. Recently, the Courts have apparently, if not clearly, strayed
into the executive domain or in matters of policy. For instance, the orders passed by
the High Court of Delhi in recent times dealt with subjects ranging from age and other
criteria for nursery admissions, unauthorized schools, criteria for free seats in schools,
supply of drinking water in schools, number of free beds in hospitals on public land,
use and misuse of ambulances, requirements for establishing a world class burns ward
in the hospital, the kind of air Delhi ties breathe, begging in public, the use of sub-
ways, the nature of buses we board, the legality of constructions in Delhi, identifying
the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-
rickshaw over-charging, growing frequency of road accidents and enhancing of road
fines etc. Again the Delhi High Court directed that there can be no interview of
children for admissions in nursery schools. It is the entertainment of such frivolous
matters that has led the Supreme Court to set the parameters of judicial activism.

10-Issues and Concerns

The following are the main issues or areas of concern with an activist Judiciary-

1. Where the Judiciary interferes with the functions clearly of administrative

or legislative nature, in such cases, is the Judiciary responsible /
 14

accountable to anyone for the discharge of such functions and what are
constitutional and legal sanctions behind such orders made and directions
given by courts, by way of Judicial Activism?

2. The dilution of the theory of Separation of Powers is inadvertent when

there is an activist Judiciary. The critics believe that it goes against the
Constitution.

3. Judicial Activism could be used by the current day political establishments

to get their interests protected. And thus there may be misuse of the
Judicial Process.

i).Accountability of Judiciary

One of the main concerns for the critics of Judicial Activism is that the law making
done by judges is no good till it is brought into effect. The Law making organ of the
government -the Legislature has the means of making laws and bringing them into
effect, unfortunately the Judiciary does not. So what happens when the Judiciary
makes a law but fails to effectively implement it because of lack of means to do so?
S.P Sathe in his book Judicial Activism in India-Transgressing Borders and
Enforcing Limits 14makes a difference between Judicial Law making in the ‘Realist
Sense’ and ‘Non Realist Sense’. He says that Judicial Law making in the realist sense
is what the Court does when it expands the meanings of the words ‘personal liberty’
or due process of law’ or ‘freedom of speech and expression’. When the Court held
that a commercial speech (advertisement) was entitled to protection of freedom of
speech and expression15, it was Judicial Law making in the realist sense. When
however the Court lays down guidelines for inter-country adoption, against sexual
harassment of working women at the work-place, or abolition of child labour, it is not
judicial law making in the realist sense but amounts to legislating like a legislature.
Sathe terms this as judicial excessivism.

It is when such law making is undertaken by the Judiciary that the question of how to
implement the law arises. If the Legislature passes legislation to the effect, it would be
a picture perfect scenario. But when the Legislature refuses to take an action, there is
a vacuum that’s created between the law pronounced in the Judgement and its actual

14
S.P Sathe, Judicial Activism in India –Transgressing Borders and enforcing Limits , 250 (Oxford
University Press, India, Second Edition,2010)
15
Tata Press Ltd. V. Mahanagar Telephone Nigam (1995) 5 SCC 139
 15

implementation. A court is not equipped with the skills and competence to discharge
functions that essentially belong to the other co-ordinate organs of the government.

The second question that arises is whether such legislation by the Court is desirable?
Of course this can be answered in context with Separation of Powers Doctrine, which
shall be dealt with shortly. But the desirability of such a legislation can be contested
vis a vis the fact that such law making by the court might not see all future
requirements and might have been made without taking into consideration various
viewpoints. For e.g. Vishakha’s case16, where guidelines against sexual harassment at
work were laid down. It took the Legislature over a decade to contemplate Legislation
to the effect. The Court did lay down the guidelines, but only the Legislature had to
think through what would happen in case of breach of such guidelines, what would be
the penalties that would be imposed, what would mean by the term ‘sexual
harassment’, whether only women could be liable to be sexually harassed at
workplaces and many such concerns. As Justice Srikrishna recognized in one of his
lectures that “the answers to many socio-economic political problems lie with the
Parliament and in a polling booth and not in a courtroom and that such activism
strains the institutional resources of the court. It also diverts the time, talent and
energy of Judges into channels that they are neither required to navigate, nor
equipped to, for lack of competence, skill or resources.”

Thus the discussion boils down to the basic question of what laws, principles would
be applicable to the Judiciary in deciding matters which are essentially pertaining to
other organs of the states? And what is the method or procedure provided by the
Constitution or any law for the enforcement of such orders passed by the courts?

Thus the entire mechanism for implementing such laws and ensuring that they are
followed and in case of breach, imposition of penalties –is not available with the
Judiciary. The danger of Judiciary creating a multiplicity of rights without the
possibility of adequate enforcement will, in the ultimate analysis, be counter
productive and undermine the credibility of the institution. When laws that are
pronounced cannot be implemented, the entire process of making such laws becomes
a sham. To conclude this section, I quote Arun Shourie from his book ‘Courts and
their Judgements’17-

16
Vishakha v. State of Rajasthan ,AIR 1997 SC 3011
17
Arun Shourie, Courts and their Judgements,404 (Rupa & Co,New Delhi, First Edition,2008)
 16

‘But to deliver a remedy requires the sorts of things that are beyond the reach of
Judges. It requires resources that the Courts do not have. It requires time and energy
that the mountain of cases which weighs down each Judge will not allow him to
spare. It requires whipping other institutions into doing their job-whipping of a
degree that Courts have not shown the inclination to inflict.

ii).Separation of Powers

Separation of Powers (the “Doctrine”) as envisaged by Montesquieu has been held as

one of the basic features18 of our Constitution. The dilution of the Doctrine is another
issue with the critics of Judicial Activism, so much so that it has been felt that Judicial
Activism is contrary to the Constitution. The critics while pointing out the dilution of
the Doctrine have conveniently failed to understand that the line which divides the
Judiciary from the Legislature and the Executive is bold sometimes; at times it’s faint
and completely invisible at other times. There could be five categories of Judicial
Action which could be further categorised into Activism and Excessivism-

1. Minimal Judicial action and literal interpretation (staying within

Montesquieu’s limits). Under this the Judiciary can traverse only territory
demarcated for them by the legislature and the executive, and as such there is
no controversy, neither there is any scope of any controversy.

2. Creative or purpose interpretation, for instance expanding the meaning of

certain terms.

3. The Oversight Function over the Executive: Executive action or

malfunction: Filling in gaps and exercising oversight over the executive
inaction.

4. The Oversight Function over the Legislature: Making common law, ad hoc
legislation where legislature fails to legislate, or there are lacunae in existing
legislation and passing orders and directions and reviewing functioning of the
legislature.

5. Creative interpretation which amounts to rewriting the Constitution.

In the first point above one could say that it is in such cases that the line between the
Judiciary and other organs of the state is bold and visible. In the second point the
controversy begins, as the dividing line between the Judiciary and the other organs

18
Kesavanand Bharti v. State of Kerala ,AIR 1962 SC 933
 17

starts becoming fainter. This is the grey area which is neither black nor white.
Whether it is Activism or Excessivism on the part of the Judiciary, is difficult to
gauge in such a situation. In the third, fourth and fifth points the line becomes
invisible as the Judiciary takes over the functions of Policy Making and Policy
Executing.

There is no straight jacket formula which will help in arriving at a conclusion that
Judiciary has overstepped or it has been well within its limits. A case, how decided is
dependent on how a judge perceives it and integrates his wisdom with the law of the
land to arrive at a conclusion. So there is no objectivity but only subjectivity that
becomes a deciding factor to determine whether the Doctrine has been diluted or not.

Glaring examples of Judiciary overstepping its limits and stepping in to the area of the
executive has been orders passed by Honourable Delhi High Court on subjects
ranging from age and other criteria for nursery admissions, unauthorised schools ,
begging in public, auto rickshaw overcharging, size of speed breakers on the road.
These are clearly policy areas, where the Judiciary has interfered and legislated.

The Jagadambika Pal case of 1998 involving the Uttar Pradesh Legislative Assembly
and the Jharkhand Assembly case of 2005 are again, two glaring examples of
deviations from the clearly provided constitutional scheme.

It is believed that the framers of our Constitution took care to provide for an
independent and impartial Judiciary as the interpreter of the Constitution and as the
custodian of the rights of the citizens through the process of Judicial Review, which
permits the Judiciary to interpret laws but not lay them down. Judicial review is much
stricter a concept, whereas Judicial Activism, as the name suggests is much wider in
scope. The framers, it is true, only permitted to enquire into any legislation or an
executive action. But Judicial Activism tends to hijack the functions of the other
organs and act upon it.

The question then arises is that why would Judiciary overstep? And the answer to this
is given by Sathe very clearly-

‘Those Indians who finding that the legislatures and the executive s are not
responding to their grievances turn to courts for protection against injustice from a
class-structured polity, and secure some relief, however paltry, have begun to look to
the Court as their own choice. Sathe further adds that ‘Judicial process is expensive
 18

dilatory and technical and if it is preferred despite such inherent defects, it is only
because the other avenues of redressal have become ineffective and unreliable.’

This is how the entire concept of Public Interest Litigation came up and it sprouted
from nowhere but from an Activist Judiciary.

Fali Nariman in his autobiography- ‘Before Memory Fades’ 19states something similar
on the lines of what Sathe has mentioned above. According to Nariman, ‘judicial
over-reach’ is the direct consequence of legislative and executive ‘under-reach’: i.e.
poor performance in the making of laws and particularly in their execution. He also
states how judicial power keeps vacillating according to the need of the times. For
instance during the period of emergency of 1975 it had completely contracted.

Having stated the reasons for the Judiciary overstepping, the pertinent question here is
whether this overstepping is diluting the Doctrine and thus being contrary to the
Constitution? The question can be answered in the light of the following parameters-

1. True Constitution, although makes separate provisions for three organs of the
state, does not place them in watertight compartments.

2. The Constitution by virtue of Article 14220 gives extensive powers to the

Supreme Court in exercise of its jurisdiction to pass any decrees or make any
orders for carrying out justice. As Justice Vivian Bose has described this
power granted by Article 142 as the ‘flaming sword’ in an elegant prose21-

“We have upon us the whole armour of the Constitution and walk henceforth in its
enlightened ways, wearing the breast plate of its protecting provisions and flashing
the flaming sword of its inspiration”

The Constitution instead of putting the organs into watertight compartments , gives
them a leeway to move around , especially the Judiciary by way of Article 142 and by
19
Fali.S.Nariman,Before Memory Fades-An Autobiography, ( Hay House Publishers (India) Pvt.
Ltd.,2010)
20
142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 )
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before it, and any decree so passed
or orders so made shall be enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in
such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and every power to make any order for the purpose
of securing the attendance of any person, the discovery or production of any documents, or the
investigation or punishment of any contempt of itself
21
Fali.S.Nariman,Before Memory Fades-An Autobiography,369 ( Hay House Publishers (India) Pvt.
Ltd.,2010)
 19

holding Judicial Review as the basic feature of the Constitution. The issue then is not
whether diluting the Doctrine is contrary to the Constitution, but how far can the
doctrine be diluted or what are the permissible limits of such dilution. The content of
Judicial Power is not defined in our Constitution. If cases where the Courts have laid
guidelines for say inter country adoption, or guidelines against sexual harassment at
work etc have been treated as not a legitimate judicial function, then does that mean
that the Judiciary is only there to interpret law as intended by the legislature? Would
there be any scope of interpretation? Would there be any conflict if all the law has to
be interpreted as per what the legislature had intended to? True the Judiciary cannot
cross the line of separation to the extent that it usurps the powers of the other organs.
But the above mentioned guidelines by the Courts are examples of instances where
the legislature did not legislate at all. And also the guidelines laid down by the
Judiciary become the law of the land only when, even after having given such
“GUIDELINES”, the legislature fails to take any step to fill in the gap. After all the
Courts have not enacted a law, they have merely given a framework for the legislature
as some food for thought. Failure of Legislature to act even after having been given
guidelines cannot be held against the Judiciary under the garb of diluting the Doctrine
of Separation of Powers.

iii). Influence by political establishments

A judicial decision either stigmatises or legitimises a decision of the legislature or the

executive. Benjamin Cardozo22 has said –

‘The restraining power of the judiciary does not manifest its chief worth in the few
cases in which the legislature has gone beyond the lines that mark the limits of
discretion. Rather shall we find its chief worth in making vocal and audible the ideals
that might be otherwise silenced, in giving them continuity of life and expression, in
guiding and directing choice within the limits where choice ranges’

That is the power of Judiciary that Cardozo envisages. Thus a judicial decision needs
to be neither politically motivated, nor politically inclined, since it is through its
decisions that the court changes the existing power relations, judicial activism is
bound to be political in nature. Through its decisions the constitutional court becomes
an important power centre of democracy. Thus a politicised judicial pronouncement

22
S.P Sathe, Judicial Activism in India –Transgressing Borders and enforcing Limits , 271 (Oxford
University Press, India, Second Edition,2010)
 20

not only strikes at the roots of the democracy but a tainted judiciary can never do
justice.

It is natural for the critics of Judicial Activism to fear an influence of the current
political establishment on the Judiciary.

A very glaring example has been the entire period of emergency of 1975 when the
Judiciary was almost controlled by the Legislature. The emergency brought in severe
restrictions on an individual liberty and judicial review.

Another example which explains how the political establishment influences the
Judiciary is the Rent Control legislation, which was enacted in the Second World War
when housing became scarce. Over the years the legislation became counter
productive to the interests of the landlords, as they could not cover basic expenses
through the rent. They thus preferred keeping their houses vacant. There was a need to
update the law, since the legislature did not act the case came up to the Supreme
Court. The case was that of Malpe Vishwanath Acharya v Maharashtra23 and the
court held that the Bombay Rent Control Act enacted in 1947, which froze the rents
payable by tenants to the amount payable in that year, imposed an unreasonable
restriction on the right to carry on any trade or business guaranteed by article 19(1)
(g) of the Constitution. The Court thus asked the government not to extend that law
and enact a law that would give adequate returns to the landlords. Since it is the
function of the legislature and not the judiciary to make laws an embarrassing
situation had emerged by such pronouncement of the Court. A fierce agitation was
launched on behalf of the tenants against the government’s intention to revise the law
in favour of the landlords. The following were the major issues with the judgement-

1. It was a question of Policy.

2. The matter belonged to the Legislature and it suited them to get the matter
sorted out through the judicial process.

3. The Court had merely obliged the political establishment of the day, then.

The purpose of setting forth this case was to depict lucidly how the judiciary, if does
not practise self-restraint can be a puppet in the hands of the Legislature. Though the
irony is that on the face of it, it seemed, in the above case, that the Judiciary directed

23
(1998) 2 SCC 1
 21

the Legislature, but analysing it one realises that the Legislature actually, through the
judicial process, sorted the matter in its own interests.

11-Conclusion

As we can see the Doctrine of Separation of Powers runs as a thread in all the major
areas of concern discussed above. In a way it is actually the Doctrine which raises a
major concern and the other concerns flow out from it. Be it the infrastructure missing
for the Judiciary to implement the laws or whether the Judiciary is influenced by the
political establishment of the day, Separation of Powers is at the root. And when
exactly does the Judiciary dilutes the doctrine and crosses the limits is not defined.

If the intention of the framers of the Constitution was to not let the Judiciary legislate,
it could have placed all three organs in separate water tight compartments, which it
has very clearly not. Even the framers of the Constitution intended to give space to the
Judiciary to move around and about the line of separation. Though there are examples
of the Legislature exercising the Judicial Power- for instance in the disputes arising
out of the 10th Schedule of the Constitution. And similarly the Executive while
exercising statutory and discretionary powers takes up adjudicatory role and also
makes laws by way of subordinate legislation or by promulgation of Ordinances in
terms of Article 123 and 213 of the Constitution. But it is only the Judiciary which is
by way of Article 142 given wide powers to pass orders or decrees in furtherance of
Justice. That’s the trust that the framers have placed in the higher Judiciary. And such
a trust has to come with responsibility. Because without responsibility such trust can
become tyrannical and the consequences a havoc for a democracy.

The legitimacy of the Court and Judicial Activism is derived from the faith that
people repose in the Judiciary and thus Courts have to continuously strive to maintain
their legitimacy. Also one has to understand that Judges after all are human beings
and to err is only human. An activist Judge has to be prepared to take criticism of his
judgements. This is done by jurists and lawyers and, at a more mass level by media
etc. This is an important tool to keep a check on the fact that the trust that the framers
of the Constitution have put in the Judiciary of the country, is respected and is
maintained with responsibility. While answering a question about corruption and
 22

accountability and refuting the charges that judiciary does not represent the will of the
people, Justice Y.K Sabharwal said in an interview24

“When the Supreme Court declares that executive and the legislature has exceeded
its limits and crossed province the judgement is a decision on behalf of “We the
people of India,” to whom the legislature and the executive are accountable”

It is not denied that the Separation of Powers is a basic feature of the Constitution of
our country and it should be respected. But at the same time Judicial Activism cannot
be curbed. Judicial Activism provides a safety valve in a democracy. Just a few
concerns need to be addressed so as to prevent Judiciary from usurping the powers of
the other organs. For instance more transparency in the appointments in the Judiciary
will generate more faith in the Judicial System of the country. The Guidelines that are
provided for in the judgements, where no legislation exists, could be treated as an
interim arrangement. And instead of accusing Judiciary of Over reach, a mechanism
to concretise such guidelines into legislations actively, should be devised. Areas
where the Judiciary is required to decide in favour of the political establishment of the
day, the best mechanism would be ‘self-restraint’ on the part of Judiciary. The
panacea for the so called evil ‘over-reach’ is with the Judiciary itself and ‘self –
restraint’ is the best form of keeping a check on itself.

To conclude I quote Anil Divan, Senior Advocate Supreme Court –

“That plants slowly nurtured by judicial craftsmanship have grown into sturdy trees
and have blossomed with colourful and fragrant flowers. Judicial Activism has added
much needed oxygen to a gigantic democratic experiment in India by the alchemy of
judico-photosynthesis”

24
Dr P.S.Lathwal ,”Good Governance VIS-VIS Judicial Activism”,M.D.U Law Journal,Vol X,Part-
I,2005
 23

BIBLIOGRAPHY

Books
1. S.P.Sathe , Judicial Activism in India-Transgressing Borders and Enforcing Limits
( Oxford University Press, India, Second Edition 2010)
2. Fali.S.Nariman, Before Memory Fades-An Autobiography (Hay House Publishers
(India) Pvt. Ltd.,2010)
3. Arun Shourie, Courts and their Judgments (Rupa & Co,New Delhi, First
Edition,2008)
Articles
1. Susanta Chatterji , “For Public Administration”: Is Judicial Activism Really Deterrent
to Legsltaive Anarchy and executive Tyranny?, The Administrator,Vol. XLII April-
June 1997.pp9-24
2. Dr P.S.Lathwal,Good Governance VIS-À-VIS Judicial Activism,M.D.U Law
Journal,Vol.X,Part-I,2005
3. Satyabrata Sinha, “Judicial Activism: Its Evolution and Growth”, in Prof D Banerjia ,
Judicial Activism-Dimensions and Directions (Vikas Publishing House Pvt. Ltd,New
Delhi,First edition 2002)
4. P.M. Bakshi , “ Judicial Activism”Some reflections” , in Prof D Banerjia , Judicial
Activism-Dimensions and Directions (Vikas Publishing House Pvt. Ltd,New Delhi,
First edition 2002)
5. P.P.Rao, Judicial Activism “Its Positive and Negative Aspects”, in Prof D Banerjia ,
Judicial Activism-Dimensions and Directions (Vikas Publishing House Pvt. Ltd,New
Delhi, First edition 2002)
6. P.S.Reddy, “Judicial Activism: Misnomer or New Matrix of Justice”, in Prof D
Banerjia , Judicial Activism-Dimensions and Directions (Vikas Publishing House Pvt.
Ltd,New Delhi,First edition 2002)
7. DR K.N Katju Memorial Lecture on ‘Separation of Powers and Judicial Activism in
India’, New Delhi,26 April 2007 [ Speeches – Office of the Lok Sabha Speaker]
8. Pratap Bhanu Mehta, “With due respect, Lordships”, The Indian Express, March 12,
2007.
9. Anil Divan, “Judicial activism and democracy”, The Hindu, April 02,2007
10. Abhinav Chandrachud, “ Dialogic judicial activism in India”, The Hindu , July 18,
2009