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Judicial Activism CJI 14-10-09

Judicial Activism CJI 14-10-09

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Published by Ramana Akula

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Categories:Types, Speeches
Published by: Ramana Akula on Jun 19, 2012
Copyright:Attribution Non-commercial

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06/19/2012

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‘JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION’
Address by Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India(Trinity College Dublin, Ireland – October 14, 2009)Ladies and Gentlemen:I am indeed very grateful for the opportunity to speak about theevolution of judicial activism in the Indian legal system. Before I touch onthe subject, I must of course emphasise the fact that during the framing of the Indian Constitution in the 1940’s, the engrafting of Directive Principlesof State Policy was inspired from the Irish example. The commonexperience of colonial rule in both countries also makes it viable for us todraw comparative insights in the matter of analysing legislations, the judicialprocess and of course precedents themselves.The phrase ‘judicial activism’ carries more than one connotation. Thecommon law tradition conceives of courtroom litigation as an adversarialprocess where the onus is on the pleaders to shape the overall course of theproceedings through their submissions. In this conception, the role of the judge is cast in a passive mould and the objective is to dispassionatelyevaluate the arguments made by both sides. However the actual experienceof a courtroom clearly bears witness to the tendency on part of some judgesto pose incisive questions before the practitioners. This may have theconsequence of proceedings being judicially-directed to a certain degree.While this literal understanding of activism from the bench may have itssupporters as well as detractors, the focus of my talk will be on anotherunderstanding of ‘judicial activism’. In the Indian context, there has
 
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been a raging debate on the proper scope and limits of the judicial role –especially of that played by the higher judiciary which consists of theSupreme Court of India at the Centre and the High Courts in the variousStates that form the Union of India. The terms of that debate have beenbroadly framed with respect to the considerations of ensuring an effective‘separation of powers’ between the executive, legislature and the judiciary aswell as concerns about the efficacy and legitimacy of judicial interventionsin the long-run. In the course of this talk, I will attempt to present somebackground information as well as the main themes of these debates.
The place of ‘judicial review’
In post-independence India, the inclusion of explicit provisions for‘judicial review’ were necessary in order to give effect to the individual andgroup rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar,who chaired the drafting committee of our Constituent Assembly, haddescribed the provision related to the same as the ‘heart of the Constitution’.Article 13(2) of the Constitution of India prescribes that the Union or theStates shall not make any law that takes away or abridges any of thefundamental rights, and any law made in contravention of theaforementioned mandate shall, to the extent of the contravention, be void.While judicial review over administrative action has evolved on the linesof common law doctrines such as ‘proportionality’, ‘legitimate expectation’,‘reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on theconstitutionality of legislative as well as administrative actions. In mostcases, the power of judicial review is exercised to protect and enforce the
 
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fundamental rights guaranteed in Part III of the Constitution. The highercourts are also approached to rule on questions of legislative competence,mostly in the context of Centre-State relations since Article 246 of theConstitution read with the 7
th
schedule, contemplates a clear demarcation aswell as a zone of intersection between the law-making powers of the UnionParliament and the various State Legislatures.Hence the scope of judicial review before Indian courts has evolved inthree dimensions – firstly, to ensure fairness in administrative action,secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence betweenthe centre and the states. The power of the Supreme Court of India toenforce these fundamental rights is derived from Article 32 of theConstitution. It gives citizens the right to directly approach the SupremeCourt for seeking remedies against the violation of these fundamental rights.This entitlement to constitutional remedies is itself a fundamental right andcan be enforced in the form of 
writs
evolved in common law – such as
habeas corpus
(to direct the release of a person detained unlawfully),
mandamus
(to direct a public authority to do its duty),
quo warranto
(todirect a person to vacate an office assumed wrongfully),
 prohibition
(toprohibit a lower court from proceeding on a case) and
certiorari
(power of the higher court to remove a proceeding from a lower court and bring itbefore itself). Besides the Supreme Court, the High Courts located in thevarious States are also designated as constitutional courts and Article 226permits citizens to file similar writs before the High Courts.With the advent of Public Interest Litigation (PIL) in recent decades,

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