JUDICIAL ACTIVISM AND CAN

JUDGES MAKE LAW

Introduction.
Sources of law.
History of judicial activism.
Judicial activism versus judicial
restraint.
Judicial activism in India.
Judicial activism blessing or a curse.
Conclusion.
Glossary.

INTRODUCTION
In a broad sense judicial activism means
rulings made on personal and political
preference rather than based on the existing
law. In every democratic country legislature,
executive and judiciary are the three most
important units which play a vital role in the
administration of country. Though these
should have close harmony but none should
have total autonomy. Judicial activism is a
concept which encourages the judges to
move away from strictly following the law to
encourage good and progressive policies. But
one cannot deny the fact that Law- making is
an inherent and inevitable part of the judicial
process.
In 1345, an English lawyer argued to the
court, "I think you will do as others have
done in the same case, or else we do not
know what the law is." "It is the will of the
Justices," said Judge Hillary. Chief Justice
Stonore broke in: "No; law is that which is
right". The controversy is still ranging
amongst judges. Presently the problem
arises on the part as to how exactly do
judges play role in law making, "Do Judges
Make or Declare Law". In various cases like
the case of Rewun Prashad v. Radha Beeby
(1846) there was no provision of partial
partition under the Hindu law therefore the
Madhya Pradesh high court made the law of
partial partition. Or cases like Airedale NHS
Trust v Bland (1993) where the house of lords

had to decide weather or not to provide

patient with drugs and artificial feeding or
not even though stopping it would mean the
death of the patient. All these cases and
decisions lead to one big question
is there a need for judicial activism and is it
a blessing or curse?.

SOURCES OF LAW
I. CUSTOM Custom is the oldest
form of lawmaking. A study of
ancient law shows that in primitive
society, the lives of people were
regulated by customs which
developed spontaneously according
to circumstances. It was felt that a
particular way of doing things was
more convenient than others. When
a practice is repeated again and
again in a particular way, it takes
the form of a custom.

II. PRECEDENT- According to Salmond

precedent means that case law
which not only has a great binding
authority but must also be followed.
Precedents are previous
landmark/similar cases on which
judges today pronounce their
verdicts in order to ensure
consistency in law and not

undermine the verdicts of previous

judges.

III. LEGISLATION - legislation is that

source of law which consists in the

declaration of legal rules by a
competent authority.

HISTORY
Incidents of judicial activism are also
visible during the preindependence
colonial era. Examples of judicial
activism are available in the various
judgments of the Privy Council which
had the jurisdiction to review the
decisions of the
Companys courts and the Crowns
courts in colonial India. In The High
Commissioner for India v. I.M. Hall, the
Privy Council incorporated the principles
of reasonable opportunity to the heard
within the meaning of Section 240 of
the Government of India Act, 1935.
Similarly in Emperor v. Sibnath

Banerjee, the Privy Council held that the

Court can investigate the validity of
orders passed under Section 59 of the
Government of India Act, 1935 though
burden is heavy on the person
challenging the order. Judicial review of
the Privy Council however ended with
the abolition of its jurisdiction in 1949.
Traces of judicial activism are also
observed in the various judgments
given by the Federal Court constituted
under the Government of India Act,
1935. In one such instance in Niharendu
Dutt Majumdar v. Emperor, the Federal
Court held that mere criticism or even
ridicule of the Government does not
amount to sedition unless the Act was
calculated to undermine respect for the
Government so as to make people cease
to obey it so that only anarchy can
follow.
But the Privy Council overruled this
decision in Emperor v. Sadashiv Narayan
Bhalerao, and held that the offence of
sedition was not confined to only
incitement to violence or disorder. The
offence consists in actual exciting or
attempting to excite in other certain
bad feelings towards the Government.
However, the Federal Court constituted
under the Government of India Act,
1935 mainly played the role of a literal
interpreter. This was because the

Constitution of 1935 had no specific

chapter on the Bill of
Rights and wide discretionary powers
were conferred on the executive.
Judicial activism in India, in its truest
sense, dates back to the
commencement of the Constitution.
Hence the study of judicial activism in
India from the historical perspective is
confined from the period 1950 to 1977,
the period of 1978 onwards being the
postemergency era or the present
perspective. To make the historical
study convenient, it is proposed to
discuss the phenomenon of judicial
activism in India under two headings: A. Preemergency era (1950 to 1974)
The discussion under the pre
emergency era is further classified into
two phases: a. Nehruvian era (1950 to 1964); and
b. PostNehruvian era (1965 to 1974)
B. Emergency era (1975 1977)

JUDICIAL ACTIVISM V. JUDICIAL

RESTRAINT
Judicial restraint- judicial restraint
encourages the judges or directors not
to misuse the powers. It encourages

them to show restraint when striking

down laws which it deems as
unconstitutional. It is sometimes also
seen as the opposite of judicial
activism.

Judicial activism- judicial activism is a

concept which encourages the judges to
move away from strictly following the
law to encourage good and progressive
policies. It is not consistent with the
notion that judges have to exercise
restraint in executive matters. It is
expected to take place for causes which
will further social wellbeing.

JUDICIAL ACTIVISM IN INDIA

The Indian Constitution, promulgated in

1950, largely borrowed its principles
from Western models parliamentary
democracy and an independent judiciary
fromEngland, the Fundamental Rights
from the Bill of Rights, and federalism
from the federal structure in the U.S.
Constitution, and the Directive
Principles from the Irish Constitution.
These modern principles and
institutions were borrowed from the
West and then imposed from above on a
semi-feudal, semi-backward society
in India. In Western countries such
as England, the modern democratic
principles and institutions were a
product of historical struggles from the
16th to 19th Centuries in those countries.
In India, on the other hand, these
modern principles and institutions were
not a product of our own struggles.
They were imported from the West and
then transplanted from above on a
relatively backward, feudal society, the
aim being that they will pull India
forward into the modern age.
The Indian judiciary, being a wing of
the State, has thus played a more
activist role than its U.S. counterpart in
seeking to transform Indian society into
a modern one, by enforcing the modern
principles and ideas in the Constitution
through Court verdicts. In the early

period of its creation the Indian

Supreme Court was largely conservative
and not activist. In that period, which
can broadly be said to be upto the time
Justice Gajendragadkar became Chief
Justice of India in 1964, the Indian
Supreme Court followed the traditional
British approach of Judges being passive
and not activist. There were very few
law creating judgments in that period.
Justice Gajendragadkar, who became
Chief Justice in 1964, was known to be
very pro-labour. Much of the Labour
Law which he developed was judge
made law e.g. that if a worker in an
industry was sought to be dismissed for
a misconduct there must be an enquiry
held in which he must be given an
opportunity to defend himself. In 1967
the Supreme Court in Golakh Nath v.
State of Punjab, AIR 1967 SC 1643 held
that the fundamental rights in Part III of
the Indian Constitution could not be
amended, even though there was no
such restriction in Article 368 which
only required a resolution of two third
majorities in both Houses of
Parliament. Subsequently,
in Keshavanand Bharti v. State of
Kerala, AIR 1973 SC 1461 a 13 Judge
Bench of the Supreme Court overruled
the Golakh Nath decision but held that
the basic structure of the Constitution

could not be amended. As to what

precisely is meant by `basic structure is
still not clear, though some later
verdicts have tried to explain it. The
point to note, however, is that Article
368 nowhere mentions that the basic
structure could not be amended. The
decision has therefore practically
amended Article 368.

JUDICIAL ACTIVISM BLESSING OR

A CURSE
Against judicial activism- due to

judicial activism which is having

deteriorating impact on the democratic
order, people are loosing their faith in
the governmental mechanism and in
political leadership. As from the
theories we understand that they signal
the faults in our judicial system. So
judicial activism comes in the picture to
be in limelight. But flaws in the
executive and the legislature are not
alone. There are flaws in the judiciary
system also.
The critical of judicial activism call it as
an abuse to PIL. The apex court
influenced powers of chief executive of
the state in several cases.

In favor of judicial activism- The

problem comes when the court remains
silent on the questionable or unjust acts
of the government and do not exercise
judicial jurisdiction, they are then
accused of being docile and subservient
to the rulers. And if they do they are
charged with having a political agenda
and are labeled with judicial activism. It
is argued that judicial activism would
undermine the authority of the
parliament and the executive and the
democracy. Speaking truly such judicial
activism is the effect rather than cause
of ineffective role of parliament and the
executive.
As per daily dawns opinion appeared on
24th December 2009
Given the broken system of
governance in many areas, judicial
intervention is necessary in many
instances. But there is thin line between
wanted judicial intervention and
unwanted judicial intervention that
encroaches on domains of other
institutions of the state. Clearly the
constitution has made the judiciary the
guarantor of the fundamental rights of
the people and given the superior
judiciary wide ranging suo motto
powers. However judges must pay heed
to the fact that along with duties to the

people, they also have a responsibility

to fashion a stronger democratic and
constitutional system.
Therefore in order to do so judges must
understand the need to not undermine
the law completely and rather have
their approach on them in a subtle way
which does not disturb the harmony of
judiciary and the legislation.

CONCLUSION
Judicial activism according to me
plays a really integral part in todays
world and it needed now more than ever
because of the fact that people have
lost their faith in the legislation and
people who draft the laws as they are

usually the ones misusing them for their

own benefits and to promote their own
agendas. But at the same time it is very
important for our judges to understand
the fact that they having the authority,
the power and the knowledge to
interpret these laws they must not use
it to promote their political ideas or
their personal feelings about the case.
They should understand the fact that
people think legislature and judiciary
work in harmony for the best of
everyone and if judiciary also misuses
its power and authority they day wont
be long away when people take matters
into their own hands and there is a
complete chaos in the country.

GLOSSARY

 Wikipedia.
Justicekatju.blogspot.com
Justice PN Bhagwati lecture.