Judicial Activism vs.

Judicial Self-Restraint

judicial activism".2 In the name of judicial activism, modern day Judges in India have abandoned the traditional role
of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of "distributive
justice". The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the
risk of unpopularity by swimming against the tide.

The term "judicial activism" came into currency sometime in the twentieth century to describe the act of judicial
legislation i.e. Judges making positive law. Although, the underlying debate on judicial activism has been around
since the days of Blackstone and Bentham,3 the credit belongs to a non-lawyer Arthur Schlesinger Jr., for
popularising the term "judicial activism". His 1947 article in Fortune4 started the modern debate. It brought into
focus the dichotomy observed in the judicial process: unelected Judges versus democratically elected legislatures;
result-oriented judging versus principled decision-making; observance versus side-stepping of precedents; law
versus politics and so on.5 On the basis of their judicial philosophies, Schlesinger characterised some Judges of the
US Supreme Court as "judicial activists", some as "champions of self-restraint" and others as comprising the middle
group.6 Scholars of law, practitioners as well as the general public have debated, often fractiously, the correctness or
otherwise of this kind of judicial activity, some advocating John Austin's deference to restraint and others Justice
Benjamin Cardozo's views which tended towards activism.7

There are many differences between Judicial Activism and Judicial Self Restraint. Judicial Activism is the process
by which judges take an active role in the governing process and Judicial Self Restraint is that Judges should not
read their own philosophies into the constitution.
Judicial activism is the view that the Supreme Court should be an active and creative partner with the legislative
and executive branches in help shaping the government policy (Wasserman American Politics 138). The believers of
this philosophical view of how our judicial branch suggests that the Supreme Court is more active and participates in
molding the policies of American society. It can be argued that during the end of the Civil War and the "Separate but
Equal" era, in cases such as the Brown v. Board of Education, Baker v. Carr, Missouri ex. Rel. Gaines v. Canada,
and Sweatt v. Painter. The more recent, Bush v. Gore case is a good example of judicial activism.
Judicial Restraint is the idea that the Court should not place its views on other branches of the government or the
states unless there is a clear violation of the Constitution (Wasserman American Politics 138). Judges, who believe
in this form of our court system, say that a passive role of the court is preferred and that the other branches of the
government should pave the way for policy and civil case changes. Throughout our history cases, such as Dred Scott
v. Sandford and Plessy v. Ferguson, are also good examples of judicial restraint. The debate between judicial
activism and judicial restraint began in the early days of the United States and still continues through the present.
I. HISTORICAL AND THEORETICAL BACKGROUND
Judicial activism has become a subject of controversy in India.1
Recent and past attempts to hinder the power of the courts, as well as
access to the courts, included indirect methods of disciplining the
judiciary, such as supersession of the judges2 and transfers of
inconvenient judges.3 Critics of judicial activism say that the courts
usurp functions allotted to the other organs of government. On the
other hand, defenders of judicial activism assert that the courts
merely perform their legitimate function. According to Mr. Justice A.
H. Ahmadi, the former Chief Justice of India, judicial activism is a
necessary adjunct of the judicial function because the protection of
public interest, as opposed to private interest, is the main concern.4
Courts cannot interpret a statute, much less a constitution, in a
mechanistic manner. In the case of a statute, a court must determine
the actual intent of the authors. In the case of a constitution, a court
People’s understanding of judicial activism depends on their
conception of the proper role of a constitutional court in a democracy.
Those who conceive the role of a constitutional court narrowly, as
restricted to mere application of the pre-existing legal rules to the
given situation, tend to equate even a liberal or dynamic
interpretation of a statute with activism. Those who conceive a wider
role for a constitutional court, expecting it to both provide meaning to
various open textured expressions in a written constitution and apply
new meaning as required by the changing times, usually consider
judicial activism not as an aberration, but as a normal judicial function.
C. Judicial Review in India
Unlike the United States Constitution, the Indian Constitution
expressly provides for judicial review in Article 13, clause (1), that
says that all laws that were in force in the territory of India...

Dr. B.R. AMBEDKAR MEMORIAL LECTURE ( London RIGHTS June 13, 2009) JUDICIAL ACTIVISM AND
THE ENFORCEM ENT OF SOCIO-ECONOM IC THE INDIAN EXPERIENCE by Hon ble Mr. K.G.
Balakrishnan, Chief Justice of India

Ladies and Gentlemen: I am grateful for the opportunity to speak here today. Since this lecture has been organised to
commemorate the contributions of Dr. B.R. Ambedkar, I thought that it would be appropriate to speak about how
the judiciary has evolved as an agent of social transformation in post-independence India. At the time of the drafting
of the Constitution of India, the foremost objective of luminaries such as Dr. Ambedkar was to create a document
that embodied the core features of a modern parliamentary democracy while at the same time containing the road-
map for ameliorating the existing socio-economic inequalities in our society.

The vision and foresight shown by the drafting committee under the leadership of Dr. B.R. Ambedkar has stood the
test of time. The textual incorporation of principles such as rule of law, equality, individual and group rights as well
as secularism proved to be the pre-conditions for the creation of the world s largest democracy. Like any deliberative
democracy, the contents of our constitution have been frequently debated upon and even amended but no one can
take away from the fact that Dr. Ambedkar was

the architect of our constitutional democracy.

His personal story is very compelling. He was born in a very humble background and faced the evils of caste-based
discrimination such as untouchability and unjust exclusion from public places. However, despite these social
disadvantages he went on to gain a first-class education and eventually earned a doctorate in law from Columbia
University. After his return to India, he became the most eminent leader of the historically disadvantaged sections of
Indian society and was instrumental in the formation of the Scheduled Castes Federation (SCF). In the pre-
independence...

====================================
Examples
The following have been cited as examples of judicial activism:

Brown v. Board of Education - 1954 Supreme Court ruling ordering the desegregation of public schools[15]
Roe v. Wade - 1973 Supreme Court ruling decriminalizing abortion[16]
Citizens United v. Federal Election Commission - 2010 Supreme Court decision overturning Congressionally
enacted limitations on corporate political spending[17]
Perry v. Schwarzenegger - 2010 decision by federal judge Vaughn R. Walker overturning California's constitutional
amendment to ban same-sex marriage[18]
Like many catchwords, judicial activism has acquired so many different meanings as to obscure more than it reveals.
But at the same time it can not be discarded as an intellectual void for the vagueness of the definiton of the word for
at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification
needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of
jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to the spheres
of executive and the legislative. Judaical activism simply means a pro-active judiciary which does no limit itself to
the interpretation of law only but also sees if the law affects people adversely.

Two understand the concept of the judicial activism two theories have been expounded. The first theory “Power
vacuum filling” theory says if in a system there is a vacuum because of the lack of any particular organ or the
inaction of it, then other organs extend their influence to the vacuum created. Nature does not allow the vacuum to
remain as such. In the government in certain areas vacuum ais created due to the lack of interest in executive or
legislative or simply due to the inaction and indifference in their part. This vacuum is filled by a dynamic judiciary.
This is called the judicial activism. The other thoery of “social want” says that people want something which is
neither provided by the executive or the legislative. So judiciary took it upon itself to provide the wants of the
people ( read the redresssal of the grievance of people ). So it became proactive and this proactive-ness is called as
judicial activism. Judicial activism has its genesis in the American system. The American system of governance has
favored an active judiciary because they follow the principle of judicial supremacy unlike our constitutional
supremacy. So in America the judiciary has the supreme power to review any act of legislature. This favored for a
proactive judiciary. But in India, though there is no favorable scope of judiciary being proactive, of lately, it is seen
that judiciary is taking interest in many issues which hitherto were not in its interest. This simply means that
Judiciary in India is becoming activist. But the point of analysis is how it is going to affect our democratic principle?

Brief history of an active judiciary in India:-

When one talks about the judicial activism in India the following Supreme Court judgments come to mind.

Golaknath vs. the state of Punjab

Keshabananda Bharti vs. the state of Kerala
Minnerva Mills vs. the union of India
Sunil Batra Vs. Delhi Government
M.C. Meheta Vs. the state of Tamil nadu
1. Golaknath Vs. the state of Punjab

In a land mark judgment Supreme Court made it clear that no constitutional amendments can be made on the part III
of the constitution and there by fundamental rights cannot be abridged by the legislature. By this pronouncement the
Supreme Court has retraced its own judgment in Shankari Prasad case and Sajjan Singh vs. state of Rajasthan case
that the fundamental rights can be amended.

To remove the difficulties in the process the government in the 24<sup>th amendment amended article 368
empowering the legislature the power to amend the constitution.

2. Keshavananda Bharti Vs. the state of Kerala

In this landmark judgment Supreme Court first kicked the Hornet’s nest in the name of the basic structure of
constitution. In this case the Golaknath case was over ruled and parliament regained the power of amending but
Supreme Court explicitly said that the legislature by virtue of the amending power cannot change the basic structure
of the constitution. But what constitutes the basic structure was not specified.

To remove the constitutional hurdles in an amendment the government inserted clause 4 and 5 in the
article 368 which mentions that limited power of amendment is a basic structure of constitution.

3. Minnerva Mills vs. the union of India and other states

In this case the supreme court over ruled that amending power is a basic structure of constitution. By this time the
legislative and the judiciary in India were at loggerheads.

Sunil Batra vs. Delhi government

In this case Supreme Court reinterpreted the writ of Habeas corpus as not only producing a person in the court but
also preventing a person jailed from the inhuman treatment in the prison.

M. C. Meheta vs. the sate of Tamil Nadu

In this case Supreme Court not only pronounced that deployment of children in hazardous factories is unlawful but
also provided various guidelines for the children welfare.
Apart from the above cases in many landmark judgments Supreme Court categorically mentioned about
environment issues, gender issues and issue related to dalits etc. The beauties of these cases are all against the
legislature. In each of the cases either some constitutional amendments have been made void or the law has been
reinterpreted differently. In the brief period when judiciary has been active in India it has garnered the wrath of the
legislative and the executive.
The preceding paragraph gives a basic idea of the history of judicial activism in India. But the idea of the present
article is to see how judicial activism has affected Indian democracy and what will be the picture in the future?

Indian constitution in article 246 speaks about the separation of power between executive, legislative and judiciary.
The idea envisaged in the separation of the power is not to give rise to a dictatorial regime. Because these three
branches are independent of each other. The separation of power is the essence of Indian democracy. But an active
judiciary in some way or other infringes on the power of the legislative. One can take the case of the Golaknath case.
The government has made some changes which abridge the fundamental rights and those changes have been made
to enter into the ninth schedule also which is free of judicial purview. No doubt any law making is the function of
the legislative and as per convention judiciary is to interpret the laws made by the legislative. But in Golaknath case
the Supreme Court quashed the amendment itself. That means it did not recognize the law made by constitution. No
doubt such a law was to some extent the spirit of the fundamental rights but the act of judiciary is a clear
encroachment upon the legislature. The Kehsavananda Bharti case is a very important verdict in defining the ambit
of judicial activism. Here the Supreme Court talks about the basic structure of the constitution but what constitutes
the basic structure? The Supreme Court remains surprisingly silent; of course various justices have included
different things under the basic structure of constitution but there is no specific benchmark. If one examines all the
above cases it is pretty clear that judicial activism is against the legislative hegemony but the question may arise is it
against democracy? Legislative is a democratic body. It gains the authority from the people. On the other hand
judiciary has no popular mandate backing it. It is an independent authority. So by principle judiciary ratifying the
legislature is against the principle of democracy. But arriving any such conclusion is not an easy task. There are
many a loopholes in such straight forward criticism. Suppose the legislature makes the law which affects the liberty
of people and which is a gross violation of human rights. In this case does the judiciary remain silent and follow the
rule of law principle even if the law is inhumane? This is a question which has far reaching significance. There is no
absolute solution for this. To analyze this one needs to reinterpret the word democracy itself.

Democracy is a form of government where people surrender some of their rights to a small elite body who are
elected by people to rule over themselves. This elite body or the public representatives make law for the betterment
of people. Once elected the public representatives remain all powerful till the end of the term by constitutional
provision or otherwise because the constitution does not provide “call back” power to the people. The assumed
principle is that these public representatives should make laws for the benefit of the people. The loophole in our
administration is that it is not very transparent and popular participation is bare minimum. The prescribed methods
of control on government have been largely unsuccessful. So in such a situation a vacuum is created in governance
i.e. who shall see the validity of a law. The judiciary as such and by principle can not act unless an aggrieved party
does not knock its door. Hence this vacuum is substantial. As per the theory of “Power vacuum filling” some organ
has to extend its influence and it is only natural for judiciary to extend its influence in the sphere. Many argue that it
is against the principle of democracy. May be it is true. But there is a widening gap between the principle of
democracy and the essence of democracy. Sometimes the hegemonic growth of the form and procedure of
democracy become so vast that they make the spirit of democracy in danger. Now it is important to decide what is
more important the procedure and principles of democracy like the legislative supremacy or the spirit of democracy
i.e. welfare of people. The principle and procedure may be a means to an end but the end is always the spirit of
democracy. So if means are abridged to attain the ends then democracy will be more successful than anything else.
Judiciary under the veil of activism serves as a watch dog for preserving this basic spirit of democracy.

The executive and legislative is always at disadvantage with the increasingly proactive judiciary. But the judicial
activism has been beneficial to the public in many situations. For example, in the field of basic human rights, the
judiciary has been consistently building new linkages of a new egalitarian democratic and free society in consonance
with new universal socio-political and economic order by raising some rights as Fundamental Rights under Part III
of the Constitution. Some of them are worth mentioning e.g. right to information, right to work (provided under
Article 23 of the Universal Declaration on Human Rights, 1948), right to get minimum wages, right to speedy trial
(Article 8 of the above mentioned Declaration), right to secrecy (Article 12 of the Declaration), right against
inhuman treatment (Article 5 of the Declaration) etc. Above all the judicial activism itself is the savior of one basic
human right. As Justice Krishna Iyer states that ‘the access to justice is the first among human rights.’ Judicial
activism has removed the iron curtain of rigid procedure that stood between public justice and the court. Besides in
gender issues, in environment issues especially after the Bhopal gas tragedy and issues relating to public safety the
judiciary has given some far reaching pronouncements which are for the direct benefit of people.

One of the important tools through which judicial activism become popular and effective is the public interest
litigations. Earlier a case can be filed by a person only if he had a locus standi in the court. But with the provision of
PILs people now know that judiciary has constitutional power of intervention and can ameliorate their miseries
arising out of lawlessness or repression by the government. To this effect many people and groups have acting pro
bono publico has filed PILs on various issues and judiciary has taken steps to mend those problems. And an active
judiciary has gained popular support. Once speaking about the judicial activism one of the retired Supreme Court
judges has said a proactive judiciary is successful if it draws its support from people.

So much said about the benefits of the active judiciary one cannot entirely neglect the harmful effects of it as hinted
earlier in the present article. An active judiciary many times infringes upon the legislative and judiciary and that is
strictly against the principle of separation of power. And an active judiciary disrupts the balance between a
democratically elected body i.e. the legislature. There are many criticisms against the active judiciary. The chief
among them are:-

This erodes the trust on legislature

Secondly it shows the loopholes in our judiciary. Many critics are of the opinion that the judges become proactive to
come to limelight because they are devoid of limelight compared to the legislature and the executive.
There is a great chance of PILs being misused. Anybody can file PILs for any petty reasons and there by there will
be such huge volumes of litigations pending on the floor of court that it will one day become unwieldy.
To some extent the above criticisms are correct. But they are fairly exaggerated. It is argued that judicial activism
has made a victim of legislature. But in a sense it has not only resulted in a pro-active judiciary but also it has made
the legislature and the judiciary more active. Several new legislations have appeared after the involvement of
judiciary. It has also unearthed many scams like hawala scam, St Kitties scam, scam on distribution of houses and
petrol pumps etc. It has created an environment of transparency and accountability in the government. It has made
the government more responsive to people. PILs have served as a tool of popular participation in government.

The second criticism that judges crave for limelight also has little credibility. Because as such judges occupy a
revered position in the society. However if ever any judge wants to be in lime light then there is not major sin
because after all he is also a human being, s there is no need to get this problem exaggerated. Regarding the abuse of
PILs the apex court in several of its pronouncements has categorically mentioned about some guidelines regarding
the PILs and their usages.

So much said, judicial activism is no God. It has its own inherent problems; the chief among them is any institution
usurping the independence of legislature (albeit to a small extent). However one also needs to see the fact that it also
sees that legislature does not become undemocratic or despotic and the spirit of democracy that is mass-welfare is
achieved. The position of judiciary with reference to the principle of judicial activism has been quite complex. An
active judiciary is always welcome in a democratic state but there should be a fine balance between the popularly
elected body.

JUDICIAL ACTIVISM IN INDIA

Kehavananda Bharati case

This judgment is one of a kind. It came into being when six writ petitions were filed challenging the twenty fourth,
twenty fifth and the twenty ninth amendments to the constitution. All the Judges of the bench opined that by virtue
of Article 368 as amended by the twenty-fourth Amendment, the Parliament had the power to amend any or all
provisions of Constitution, including those relating to fundamental rights. The majority were of the view that the
power of amendment under Article 368 was subject to certain implied and inherent limitations. It was held that in
the exercise of amending power, the Parliamentcannot amend the basic structure or framework of the Constitution.
It was also held that individual freedom secured to citizens was a basic feature of Constitution, and could not be
altered. The judgment also invalidated the second part of Article 31-C introduced by twenty-fifth Amendment,
which excluded jurisdiction of the Courts to inquire whether law protected under that Article gave effect to policy of
securing directive principles mentioned therein.
This was a path breaking judgment which gave birth to the doctrine of basic structure. It was this judgment that
saved the country when Indira Gandhi sought to amend the constitution so that the courts could not challenge the
grounds of her election and to make sure that her election could not be termed void. This case law also overruled the
proposition of law which was laid down in Golak Nath vs. State of Punjab.
In today’s time, such judgments are few and far between. The next two cases are perfect
examples of what harm judicial activism may cause.
Ashok Hurra vs Rupa Bipin Zaveri
In this particular case, the plaintiff and the defendant filed for divorce by mutual consent after a few troubled years
of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower
court did not grant divorce to the husband. However, taking into consideration the fact that consent had been
withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The
wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The
Supreme Court held that although the husband ought not to have married before the disposition of the appeal,
irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would
not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it
was held that divorce had been granted and that the second marriage was valid.
This Shocking and astounding judgment well and truly defeats the purpose of an appeal to the Supreme Court. The
Supreme Court accepted that the husband should not have remarried before the disposition of the appeal but at the
same time, it held the second marriage valid. Granted that there was no possibility of reconcialiation in the marriage
with Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since the appeal was pending in the
apex court, it cannot be said that divorce had been granted with
JUDICIAL ACTIVISM AT ITS BEST AND PERHAPS, ITS WORST
Submitted By: Pranav Khanna
LAW Student.
Delivering justice to a population of over two billion does not sound like and never will be an easy task. It however,
becomes increasingly difficult in a country like India. The varied cultures, the environment, the languages and the
religions of the people of this country are as balanced as walking a tight rope; one foot wrong can send the entire
country in disarray. Seemingly overlapping powers of the administrators of the nation can cause some serious
trouble in this regard.
The Executive, the legislature and the judiciary are the three wings of the Indian democracy. The constitution
empowers them and burdens them with duties at the same time. The legislature formulates the law, and the judiciary
interprets it. Simple as it may sound, studying the ambit of the words “formulation” and “interpretation” can actually
leave the best in the business confused. Most believe that the judiciary, under the guise of interpreting the law, goes
a step beyond, and ends up giving the country new binding law, which is usually different from the existing one.
This is called judicial activism.
The ongoing debate
The definition of "judicial activism" is an intense ongoing debate. According toMerriam-
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". 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."
Conservatives tend to argue that judicial activism is the process of ignoring, or at least selectively choosing
precedent in order to hand down rulings which dramatically expand personal freedoms. They also complain that the
doctrine of stare decisis is sometimes used to trump up the original meaning (or, in some cases, the original intent)
of the text, or that the text is given so broad a construction so as to render it almost infinitely malleable1[1].
1
To others, judicial activism implies going beyond the normal constraints applied to jurists and the Constitution gives
jurists the right to strike down any legislation or rule against any precedent if it goes against the Constitution. Thus,
ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active
specifically in terms of the Constitution.
Many are critical of judicial activism as an exercise of judicial power, which displaces existing law or creates more
legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. This,
it is argued, violates the doctrine of separation of powers. Judicial activism can be considered as (and is often called)
"legislating from the bench" (i.e., promulgation of new law). Some have even gone to the extent of calling it judicial
tyranny. An accusation of judicial activism implies that the judge is not performing his or her duty as an interpreter
of the law, but is instead ruling on the basis of personal political convictions or emotions.
Liberalists’ argume that the Living Constitution philosophy endorses any ruling, so long as the judge can argue that
his ruling helps the constitution to grow and evolve. Critics say that this can violate a judge's sworn allegiance to
uphold the constitution, because, in effect, it encourages judges to write their own constitutions. Furthermore, the
Living Constitution leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of
this confusion is the threat of frivolous lawsuits.
Critics of the Living Constitution also argue that it violates the principle of separation of powers. They say that
because the purpose of the judiciary is to interpret existing laws and policies, any action which is not done strictly in
accordance with existing law must be activism.
Opponents of judicial activism claim it is not about liberal versus conservative at all, but about whether a
constitution should be interpreted strictly according to its text, or whether it is an "evolving document" which
requires judges to assign new meanings to its words2[2].
A review of case laws proves that judicial activism may work towards the benefit of the society but that is not
always the case. Some judgments have been delivered with great insight and vision but some others are based only
on self conviction and belief, that such a judgment would help the parties, without taking into consideration the
repercursions on the law or on the society at large.
JUDICIAL ACTIVISM IN INDIA
Kehavananda Bharati’s case3[3]
23
This judgment is one of a kind. It came into being when six writ petitions were filed challenging the twenty fourth,
twenty fifth and the twenty ninth amendments to the constitution. All the Judges of the bench opined that by virtue
of Article 368 as amended by the twenty-fourth Amendment, the Parliament had the power to amend any or all
provisions of Constitution, including those relating to fundamental rights. The majority were of the view that the
power of amendment under Article 368 was subject to certain implied and inherent limitations. It was held that in
the exercise of amending power, the Parliamentcannot amend the basic structure or framework of the Constitution. It
was also held that individual freedom secured to citizens was a basic feature of Constitution, and could not be
altered. The judgment also invalidated the second part of Article 31-C introduced by twenty-fifth Amendment,
which excluded jurisdiction of the Courts to inquire whether law protected under that Article gave effect to policy of
securing directive principles mentioned therein.
This was a path breaking judgment which gave birth to the doctrine of basic structure. It was this judgment that
saved the country when Indira Gandhi sought to amend the constitution so that the courts could not challenge the
grounds of her election and to make sure that her election could not be termed void. This case law also overruled the
proposition of law which was laid down in Golak Nath vs. State of Punjab.
In today’s time, such judgments are few and far between. The next two cases are perfect
examples of what harm judicial activism may cause.
Ashok Hurra vs Rupa Bipin Zaveri
In this particular case, the plaintiff and the defendant filed for divorce by mutual consent after a few troubled years
of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower
court did not grant divorce to the husband. However, taking into consideration the fact that consent had been
withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The
wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The
Supreme Court held that although the husband ought not to have married before the disposition of the appeal,
irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would
not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it
was held that divorce had been granted and that the second marriage was valid.
This Shocking and astounding judgment well and truly defeats the purpose of an appeal to the Supreme Court. The
Supreme Court accepted that the husband should not have remarried before the disposition of the appeal but at the
same time, it held the second marriage valid. Granted that there was no possibility of reconcialiation in the marriage
with Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since the appeal was pending in the
apex court, it cannot be said that divorce had been granted with
finality. Yet the husband remarried, and yet the marriage was held to be valid by the Supreme Court. This may
become a weapon in the hands of the people wanting to get remarried before disposition of appeals in higher courts.
Arnit Das vs. State of Bihar
A crime of murder was registered at Patna according to which one Abhishek was shot dead. On 13.9.1998 the
petitioner was arrested in connection with the said offence. A day later the petitioner was produced before the
Additional Chief Judicial Magistrate, Patna who after recording his statement remanded him to a Juvenile home in
Patna. The petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to protection of The
Juvenile Justice Act, 1986. The petitioner's claim was disputed on behalf of the prosecution. The A.C.J.M. directed
an enquiry to be held under Section 32 of the Act. The petitioner was referred to examination by a Medical Board.
On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the
petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of age on the date of the occurrence and
therefore was not required to be tried by a Juvenile Court. The finding was upheld by the Sessions Court in appeal
and the High Court in revision. On appeal to the Supreme Court, it was decided that the crucial date is not the day on
which the offence is committed but on the day on which the offender is brought before a competent authority.
It was never a disputed fact as to whether the offender was a juvenile on the date of the commission of the offence.
It was hence never necessary for the Supreme Court to decide on the issue of whether the date of the commission of
the offence or the date on which the offender is brought before a competent authority is the date on which the
offender should be a juvenile.
The Juvenile Justice Act was enacted in order to protect the interest of Juveniles, taking into consideration the age of
the person when the offence was committed. The fact that the offender may not have been well aware of the effects
of his act contributes to the sanctity of the legislation. However, what happens in a case where an offender is
arrested 30 years after the commission of the offence? Does one send him to a remand home with other juveniles
regardless of the fact that he is not of their age? Does one try him as a regular offender regardless of the fact the
offence had been committed when he was not of age?
Irrespective of how much time elapses after the incident, the offence itself remains an offence committed by a
juvenile and the person should thus be judged according to his age and intent at the time of the commission of the
offence. The Supreme Court however, provides no guidelines about the aforementioned issue and how this particular
situation should be handled.
A Note of Caution
In a monograph "Judicial Activism and Constitutional Democracy in India" commended by Professor Sir William
Wade, Q.C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial
activism, sounds a note of caution-"it is plain that the judiciary is the least competent to function as a legislative or
the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing
enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate
information. On the other hand if courts have to rely on their own knowledge or research, it is bound to be selective
and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their
orders, schemes and mandates, since courts mandate for isolated cases, their decrees make no allowance for the
differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts
have also no method to reverse their orders if they are found unworkable or requiring modification". Highlighting
the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the
learned author advises "the Supreme Court could have well left the decision- making to the other branches of the
government after directing their attention to the problems, rather than itself entering the remedial field".
Conclusion:
This presentation is a review of various case laws, the ones mentioned above and others, which are not in favour of
public policy. There have been no subsequent over rulings of these judgments which surpass all logic. This leads us
to wonder whether judicial activism is always good for society. It is a known fact that judicial activism has given us
some very good case laws, even led to revolutionary changes in society, but its consistency needs to be questioned.