Judicial Activism and Judicial Restrain: Issues and Concerns Pranjal Srivastava

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,

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

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. 2. 3. Majoritarianism — This dimension takes into account the degree to which Interpretive stability — This dimension takes into account the degree to which Interpretive fidelity — This dimension takes into account the degree to which policies adopted through the democratic process are judicially overturned. court decisions alter earlier decisions, doctrines, or constitutional interpretations. 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

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.

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 RestrainHaving 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

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 Judiciary1. 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 subways, 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, autorickshaw 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 Judiciary1. 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


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’1716 17

Vishakha v. State of Rajasthan ,AIR 1997 SC 3011 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 Excessivism1. 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

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 parameters1. 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

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

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

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 judgement1. 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


(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”


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


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

Articles 1. Susanta Chatterji , “For Public Administration”: Is Judicial Activism Really Deterrent
to Legsltaive Anarchy and executive Tyranny?, The Administrator,Vol. XLII AprilJune 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,

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

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