Concept of judicial activism under Indian

constitution

ARPIT RAJ PANDEY

1st semester Master of law (LLM)

Noida International University (NIU)

Introduction
Judicial activism describes judicial rulings suspected of being based on personal
or political considerations rather than on existing law. The question of judicial
activism is closely related to constitutional interpretation, statutory
construction, and separation of powers. Legal academics often describe judicial
invalidation of legislative enactment as “judicial activism.” As one scholar has
written, “at the broadest level, judicial activism is any occasion where a court
intervenes and strikes down a piece of duly enacted legislation.”
Professor Lino Graglia: “By judicial activism I mean, quite simply and
specifically, the practice by judges of disallowing policy choices by other
government officials or institutions that the Constitution does not clearly
prohibit.” [i] In other words, the Court is engaging in judicial activism when it
reaches beyond the clear mandates of the Constitution to restrict the
handiwork of the other government branches.
The idea of judicial activism has been around far longer than the term. Before
the twentieth century, legal scholars squared off over the concept of judicial
legislation, that is, judges making positive law. “Where Blackstone favoured
judicial legislation as the strongest characteristic of the common law, Bentham
regarded this as a usurpation of the legislative function and a charade or
miserable sophistry.”
Bentham, in turn, taught John Austin, who rejected Bentham’s view and
defended a form of judicial legislation in his famous lectures on jurisprudence.
In the first half of the twentieth century, a flood of scholarship discussed the
merits of judicial legislation, and prominent scholars took positions on either
side of the debate.
Arthur Schlesinger Jr. introduced the term “judicial activism” to the public in a
Fortune magazine article in January 1947. Schlesinger’s article profiled all nine
Supreme Court justices on the Court at that time and explained the alliances
and divisions among them. The article characterized Justices Black, Douglas,
Murphy, and Rutledge as the “Judicial Activists” and Justices Frankfurter,
Jackson, and Burton as the “Champions of Self Restraint.” Justice Reed and
Chief Justice Vinson comprised a middle group.
This conflict may be described in several ways. The Black-Douglas group
believes that the Supreme Court can play an affirmative role in promoting
social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-
restraint. One group is more concerned with the employment of the judicial
power for their own conception of the social good; the other with expanding
the range of allowable judgment for legislatures, even if it means upholding
conclusions they privately condemn.
One group regards the Court as an instrument to achieve desired social results;
the second as an instrument to permit the other branches of government to
achieve the results the people want for better or worse. In brief, the Black-
Douglas wing appears to be more concerned with settling particular cases in
accordance with their own social preconceptions; the Frankfurter-Jackson wing
with preserving the judiciary in its established but limited place in the
American system.
Black’s Law Dictionary defines judicial activism as a “philosophy of judicial
decision-making whereby judges allow their personal views about public
policy, among other factors, to guide their decisions.” Judicial activism means
an active role played by the judiciary in promoting justice. Judicial Activism to
define broadly is the assumption of an active role on the part of the judiciary.
Ronald Dworkin, for example, rejects a “strict interpretation of the
constitutional text because it limits constitutional rights “to those recognized
by a limited group of people at a fixed date of history.” Yet even in the early
days of its use, the term was most often considered a slight. As now-judge
Louis Pollak observed in 1956, “It seems safe to say that most judges regard
‘judicial activism’ as an alien ‘ism’ to which their misguided brethren
sometimes fall prey.” By the mid-1950s, the term had taken on a generally
negative connotation, even if its specific meaning was hard to pin down.
The phrase ‘judicial activism’ carries more than one connotation. The common
law tradition conceives of courtroom litigation as an adversarial process where
the onus is on the leaders to shape the overall course of the proceedings
through their submissions. In this conception, the role of the judge is cast in a
passive mould and the objective is to dispassionately evaluate the arguments
made by both sides.
However, the actual experience of a courtroom clearly bears witness to the
tendency on part of some judges to pose incisive questions before the
practitioners. This may have the consequence of proceedings being judicially-
directed to a certain degree. While this literal understanding of activism from
the bench may have its supporters as well as detractors, the focus of my talk
will be on another understanding of ‘judicial activism’.
In the Indian context, there has been a raging debate on the proper scope and
limits of the judicial role – especially of that played by the higher judiciary
which consists of the Supreme Court of India at the Centre and the High Courts
in the various States that form the Union of India. The terms of that debate
have been broadly framed with respect to the considerations of ensuring an
effective ‘separation of powers’ between the executive, legislature and the
judiciary as well as concerns about the efficacy and legitimacy of judicial
interventions in the long-run. In the course of this project, I will attempt to
present some background information as well as the main themes of these
debates

INDIAN PERSPECTIVE: THE JUDICIARY IS NOT A

DESPOTIC BRANCH OF THE STATE
Although the Supreme Court of India has widened its scope of interference in
public administration and the policy decisions of the government, it is well
aware of the limitations within which it should function. In the case of P
Ramachandran Rao v State of Karnataka[xi], reported in, has observed that
“The Supreme Court does not consider itself to be an imperium in imperio or
would function as a despotic branch of the State”.
The Indian Constitution does not envisage a rigid separation of powers, the
respective powers of the three wings being well-defined with the object that
each wing must function within the field earmarked by the constitution. The
Supreme Court of India took all this into account in the judgment reported in
the case of State of Kerala v A Lakshmi Kutty[xii], stating that “Special
responsibility devolves upon the judges to avoid an over activist approach and
to ensure that they do not trespass within the spheres earmarked for the other
two branches of the State.”
The judges should not enter the fields constitutionally earmarked for the
legislature and the executive. Judges cannot be legislators, as they have
neither the mandate of the people nor the practical wisdom to understand the
needs of different sections of society. They are forbidden from assuming the
role of administrators; governmental machinery cannot be run by judges as
that is not the intention of our constitution makers. While interpreting the
provisions of the constitution the judiciary often rewrites them without
explicitly stating so.
As a result of this process, some of the personal opinions of the judges
crystallize into legal principles and constitutional values. A classic example of
the above problem is the recent order by the Supreme Court of India to
demolish and seal off all the commercial entities run in residential areas of
Delhi. Even though the Delhi Government passed a Bill regularizing all the
constructions, which were illegal, the Supreme Court of India took the view
that all those places should be sealed off.
The Delhi Municipal Corporation was reluctant to continue with the sealing
drive because it was against the popular sentiments of the people. However,
the Supreme Court remained steadfast in its decision and the municipal
authorities had no other option except to go ahead. There were
demonstrations and violence against the sealing drive; the Congress Party,
which was in power during the sealing drive, lost municipal councilor seats in
the elections conducted during that time.
The argument over the economic, social and physiological impact the sealing
drive would create did not dissuade the court. The Supreme Court of India is
well aware of its limitations, and hence exercises self-restraint and caution
over encroachment of the field exclusively reserved for the legislature and the
executive.
The seven judge bench of the Supreme Court declared in P Ramachandra Rao’s
case that: “The primary function of the Judiciary is to interpret the law. It may
lay down principles, guidelines and exhibit creativity in the field left open and
unoccupied by legislation. But they cannot entrench upon in the field of
legislation properly meant for the legislature. It is no difficult to perceive the
dividing line between permissible legislation by judicial directives and enacting
a w – the field exclusively reserved for the legislature.”
In the case of Keshavanada Bharathi case[xiii] the Supreme Court held for the
first time that a constitutional amendment duly passed by the legislature was
invalid for damaging or destroying its basic structure. This was a gigantic
judicial leap unknown to any legal system. The supremacy and permanency of
the constitution were ensured by this pronouncement, with the result that the
basic features of the constitution are now beyond the reach of Parliament.
The criticism of this judgment by the Supreme Court is that since the court has
not exhaustively defined what these basic features are, the judicial arm can be
extended any distance at will. Article 21 of the Constitution of India provides
that no person shall be deprived of its life and liberty except according to the
procedure established by law has become the most dynamic article in the
hands of the Indian courts. A whole new set of rights which were not explicitly
provided by the constitution were read into Article 21.

SUBSTANTIVE DUE PROCESS AND ARTICLE 21

The Supreme Court of India gave a new interpretation to Article 21 of the
Constitution of India in the case of Maneka Gandhi v Union of India[xiv]. It
became a great trendsetter for further evolution of notions of reasonableness
and fairness. When Maneka Gandhi’s passport was impounded, she was
served with the required notice under the Indian Passport Act. She contended
that the procedure contemplated under the Act was in violation of the
constitution.
The Supreme Court held that life does not merely mean an animal-like
existence, but an existence with all the freedoms associated with it. The
Supreme Court stated for the first that it is not enough merely to prescribe a
procedure for denying life and liberty; the procedure itself must be fair and
reasonable. This paved the way for the concept of substantive due process,
which is not mentioned directly in the Indian Constitution (unlike the American
Constitution). The concept of substantive due process was imported into
Article 21 by the decision in Maneka Gandhi. It was asserted by the Supreme
Court that the courts have the power to not only judge the fairness and
justness of procedure established by law for the purpose of Article 21, but also
the power to judge and decide the reasonableness of the law itself.

EARLY CASES OF JUDICIAL ACTIVISM

The following Supreme Court cases provide a useful insight into the growth
and development of judicial activism in independent India.
In the Privy Purse case Madhav Rao Jivaji Rao Scindia v Union of India[xv] the
broad question was whether the President rightly exercised his power in de-
recognizing the princes. In this case, the court ruled that by virtue of Article 53
of the constitution, the executive power of union vested in the President must
be exercised “in accordance with law”. That power was intended to be
exercised in aid of, not to destroy, the constitution. An order merely “de-
recognizing” a ruler without providing for the continuation of the institution of
his rule – an integral part of the constitutional scheme – was therefore plainly
illegal.
In R C Cooper v Union of India [xvi], the legislative competence of Parliament
to enact the Banking Companies (Acquisition and Transfer of Undertakings)
Act, known as the Bank Nationalisation Act, was in question. The court struck
down the Act primarily on the ground of unreasonableness, explaining that the
restriction imposed on the banks to carryon “non-banking business” in effect
made it impossible for the banks, in a commercial sense, to carry on any
business at all. In Golaknath v State of Punjab, the Supreme Court while
dealing with the constitutional validity of the 17th Amendment to the
constitution evolved the concept of “prospective overruling” and held that
Parliament had no power to amend Part III of the constitution, or take away, or
abridge any of the fundamental rights.
In the fundamental rights case Keshavananda Bharti v State of Kerala[xvii],
1973 the Supreme Court rendered a judgment that can be regarded as an
important milestone in the Indian constitutional jurisprudence. While dealing
withquestion as to the extent of the amending power conferred by Article 368
of the constitution, the court evolved the theory of “basic structure.” A bench
of 13 judges held by a majority of 7:6 that the Parliament had wide powers to
amend the constitution extending to all articles of the constitution, but this
power could not be used in an unlimited way to abridge, abrogate or destroy
the “basic structure” or the “basic framework” of the constitution.
In VC Shukla v Delhi Admin [xviii](1980), the court while dealing with the
legislative competence of the state to pass a law establishing special courts for
dealing with offenses committed by persons holding high public office, held
such courts to be valid. It also held that the court could strike down an
administrative action if bias or mala fides was proved. The court, in this case,
clarified that the theory of “basic structure” would apply only to constitutional
amendments and not to an ordinary law passed by the Parliament or the state
legislature.
In the Bhagalpur Blinding case(Khatri (II) v State of Bihar[xix], it was held that
Article 21 included the right to free legal aid to the poor and the indigent and
the right to be represented by a lawyer. It was also held that the right to be
produced before a magistrate within 24 hours of arrest must be scrupulously
followed.
In Fertilizer Corpn Kamgar Union v Union of India[xx], the petitioners of a
public enterprise challenged the sale of the plant and machinery of the
undertaking, as it resulted in their retrenchment. The Supreme Court held that
sale resulting in retrenchment had not violated their rights under Article
19(1)(g) of the constitution, and likened it to termination of employment due
to abolition of posts.
The court ruled that the petitioner did not have the locus standi to petition
under Article 32. While reiterating that the jurisdiction of the Supreme Court
under Article 32 was part of the “basic structure” of the constitution, the court
violated, a petition under Article 32 was not maintainable even though one
under Article 226 may be permissible.
In T V Vaitheeswaran v State of TN[xxi], the Supreme Court held that a delay in
the execution of the death sentence for two years would entitle the prisoner
to the utation of the death sentence to one of life imprisonment. However, in
Sher Singh v State of Punjab[xxii] this view was overruled. In the latter case,
the delay was due to the conduct of the convict.
In the judges transfer case S P Gupta v Union of India, 1983, the court while
dealing with the question of the meaning of the word “consultation” in Article
124(2) held that in the matter of the appointment of judges, the executive is
supreme and is not bound by the views expressed by the Chief Justice of India
or the other judges of the SC. However, this view has been overruled in S C
Advocates-on-Record Association v Union of India[xxiii] in 1993 to ensure
judicial supremacy in the appointment of judges.
In the Asian Games case (People’s Union for Democratic Rights v Union of
India[xxiv], 1982), the court held that workers temporarily employed by
contractors for construction work were entitled to the benefit of the relevant
labor and industrial laws and to seek for their implementation under Article 32
of the constitution. The court directed the government and the concerned
authorities to ensure compliance with the laws in respect of workers
connected with the construction work of the ensuing Asian Games in Delhi.
In A R Antulay v R S Nayak[xxv] , the court, while dealing with the question of
prior sanction for prosecution of a public servant, held that an MLA was not a
‘public servant’ within the meaning of the relevant clauses as he was not
remunerated by the fees paid by the executive in the form of the State
Government.

Concept of judicial activism under US

constitution
Judicial activism, an approach to the exercise of judicial review, or a
description of a particular judicial decision, in which a judge is generally
considered more willing to decide constitutional issues and to invalidate
legislative or executive actions. Although debates over the proper role of the
judiciary date to the founding of the American republic, the phrase judicial
activism appears to have been coined by the American historian Arthur M.
Schlesinger, Jr., in a 1947 article in Fortune. Although the term is used quite
frequently in describing a judicial decision or philosophy, its use can cause
confusion, because it can bear several meanings, and even if speakers agree on
which meaning is intended, they will frequently not agree on whether it
correctly describes a given decision. he term activism is used in both political
rhetoric and academic research. In academic usage activism usually means
only the willingness of a judge to strike down the action of another branch of
government or to overturn a judicial precedent, with no implied judgment as
to whether the activist decision is correct or not. Activist judges enforce their
own views of constitutional requirements rather than deferring to the views of
other government officials or earlier courts. Defined in this way, activism is
simply the antonym of restraint. It is not pejorative, and studies suggest that it
does not have a consistent political valence. Both liberal and conservative
judges may be activist in this sense, though conservative judges have been
more likely to invalidate federal laws and liberals more likely to strike down
those of the states.
In political rhetoric activism is used as a pejorative. To describe judges as
activist in this sense is to argue that they decide cases on the basis of their own
policy preferences rather than a faithful interpretation of the law, thus
abandoning the impartial judicial role and “legislating from the bench.”
Decisions may be labeled activist either for striking down legislative or
executive action or for allowing it to stand. In the early 21st century one of the
most-criticized Supreme Court decisions in the United States was in Kelo v. City
of New London (2005), in which the court allowed the city to exercise its
eminent domain power to transfer property from homeowners to a private
developer. Because judges may be called activist for either striking down
government action or permitting it (in Kelo they permitted it) and because
activism in political usage is always considered wrongful, this sense of activism
is not the antonym of restraint. Less controversially, but less frequently, a
judicial decision may be called activist in a procedural sense if it resolves a legal
issue unnecessary to the disposition of the case. In the Anglo-American legal
system, such pronouncements are called obiter dicta (Latin: “things said in
passing”) and do not bind other courts considering the issue in the future.
Procedural activism is generally considered improper at the federal level in the
United States and in countries that follow the U.S. system (e.g., Kenya and New
Zealand) on the grounds that the function of courts is to resolve concrete
disputes between adverse parties, not to issue legal pronouncements in the
abstract. In other systems, however (e.g., Austria, France, Germany, South
Korea, Spain, and some U.S. states), courts are permitted to decide issues in
the absence of disputes or adverse parties. Complaints about activism have
arisen in most countries where courts exercise significant judicial review,
particularly within common-law systems (e.g., at the federal levels in Australia,
Canada, and India). Although in the U.S. context allegations of activism have
been raised more recently by conservatives than liberals, such charges can be
deployed by both sides, and the primary determinant is probably where the
courts stand politically with respect to other government actors. In the first
half of the 20th century, the Supreme Court tended to be more conservative
than legislatures and was criticized by liberals for striking down progressive
economic legislation (notably elements of Franklin D. Roosevelt’s New Deal) on
the basis of the justices’ supposed free-market views. In the second half of the
20th century, especially under Chief Justice Earl Warren (1953–69), the
Supreme Court was frequently more liberal than Congress and state
legislatures and tended to be criticized by conservatives for striking down state
and federal laws on the basis of the justices’ supposed liberal politics. In the
early 21st century, the Supreme Court tacked back to the conservative side
and was criticized for striking down laws such as campaign finance reform
Since neither conservatives nor liberals claim that judicial decisions should be
based on politics rather than law, the debate over judicial activism does not
take the form of arguments for and against. Instead, each side accuses the
other of activism while denying that they themselves engage in it. However,
the persistent difference of opinion among scholars and judges as to how the
Constitution should be interpreted makes it difficult to demonstrate that any
decision in a controversial case is the product of politics rather than law. In
consequence, calling a decision activist serves primarily to indicate the
speaker’s belief that those on the other side are not operating in good faith. In
U.S. federal courts, several doctrines operate to promote procedural restraint.
The requirement of standing, drawn from the federal court jurisdiction
outlined in Article III of the Constitution, restricts access to court to those who
can demonstrate a concrete injury, caused by the defendant, and redressable
by a judicial decision. Federal courts will not hear suits pursuing generalized
grievances or seeking abstract legal guidance, and this aspect of restraint is
linked to the view of courts as institutions designed to resolve disputes rather
than to promulgate legal norms. (By contrast, in some other countries [e.g.,
Germany] and some American states, courts regularly decide legal issues in the
absence of adversary proceedings.) Similarly, the doctrine of ripeness prevents
plaintiffs from seeking judicial relief while a threatened harm is merely
conjectural, and the doctrine of mootness prevents judges from deciding cases
after a dispute has concluded and legal resolution will have no practical effect.
Even if cases may properly be heard in federal court in the United States,
judicial restraint offers limiting procedural devices. The canon of constitutional
avoidance directs courts to decide constitutional questions only as a last
resort. Thus, if a case may be decided on multiple grounds, judges should
prefer one that allows them to avoid a constitutional issue. The canon of
constitutional doubt advises courts to construe statutes so as to avoid
constitutional questions. If two readings of a statute are possible, and one
raises doubt about the statute’s constitutionality, the other should be
preferred