Judicial Activism and Separation of Powers

5.2 Constitutional law– II

Submitted By-

Ayush Gaur

(SM0117012)

3rd Year, 5th Semester

Faculty in Charge

Mr. Saheb Chowdhury

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY,

ASSAM
 Table of Contents

Abstract ........................................................................................................................................... 3

1. INTRODUCTION ................................................................................................................... 4

2. JUDICIAL ACTIVISM ........................................................................................................... 5

3. EVOLUTION OF JUDICIAL ACTIVISM ............................................................................. 7

4. DOCTRINE OF SEPARATION OF POWERS ...................................................................... 9

5. JUDICIAL ACTIVISM IN INDIA ....................................................................................... 13

6. CONCLUSION ..................................................................................................................... 15

BIBILOGRAPHY ......................................................................................................................... 16

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 Abstract
The scope of the judicial activism is not a limited one. The word “justice” has no end, it is for all
whether he would be rich or poor, strong or weak. The object behind this research paper is
focused on the expansion of the judicial activism and its effects on the Doctrine of Separation of
Powers in the light of the recent case laws. Further, this paper also shows that what impact it
may have on the democracy, if judicial activism keeps on violating the Doctrine of Separation.
The judicial activism in India had touched every aspect of life to provide justice. Many a times
right to judicial review or which is known as judicial activism has provided a boon to the weaker
section of society by protecting their rights with help of public interest ligation and many a times
judicial intervention has provided society with upper hand in getting justice in matter related to
executive and the legislature. Judicial system is a means through which judiciary protects the
interest of people by delivering “JUSTICE to all”.

Keyword: Judicial Activism, Separation of Powers, Constitution.

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 1. INTRODUCTION

The word ' Judicial Activism' means the apprehension of the courts to find the right
solution for the aggrieved and the indignant by formulating a new rule to address the competing
issues in the case of lawlessness or ambiguous rules. Judicial activism in India can be witnessed
in particular in Public Interest Litigation with reference to the Supreme Court's review power
under Articles 32 and 226 of the Constitution. In a speech, Justice P. N. Bhagwati reinvigorated
Judicial Activism: "The Supreme Court has developed a new normative regime of rights and
insisted that a state cannot act arbitrarily but must act reasonably and in public interest on pain of
its action being invalidated by judicial intervention‖. Every democratic government basically has
3 pillars i.e. the legislature, the judiciary and the executive. Under the Constitution, the
legislature's primary function is to make law, the executive's function is to implement law and
the judiciary's function is to enforce law. In the enforcement of law, the Constitution assigns
three roles to the highest judiciary:
i. firstly, as an interpreter of the Constitution in order to resolve any ambiguity in the
language of any provision of the Constitution;
ii. secondly, as the protector of fundamental rights guaranteed by the Constitution to its
people; and,
iii. thirdly, in order to resolve disputes arising through the application of the Constitution;
In compliance with the federal constitution, the court also decides on the disputes between the
federal authorities and the state authorities. While performing its assigned roles, the judiciary
investigates the actions of the other two organs— the legislature and the executive — as to
whether they have reached the limits set by the constitution or whether, by arbitrary laws and
arbitrary acts, they have infringed people's rights. This is where the advocacy of the judiciary
comes in. The judiciary plays an activist role in the performance of the tasks assigned to it by the
constitution through judicial activism.

The main aim of this project is to understand the concept of judicial activism, its evolution,
its relevance in India and also what does it have on the Doctrine of Separation of Powers.

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 2. JUDICIAL ACTIVISM

The term ―Judicial Activism‖ has not been defined anywhere in the Indian Constitution or any
statute. It is a concept which means the active process of implementation of the rule of law
essential for the preservation of a functional democracy. 1 Black‘s Law Dictionary defines the
term ‗judicial activism‘ in the following words: ―A philosophy of judicial law-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.‖2 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 the established precedent or are independent
of or in opposition to supposed constitutional or legislative intent‖3

The expression judicial activism means different things to different people. It might mean
dynamism to the Judges, judicial creativity to some, judicial legislations to some others, while
there may be some who view it as a tool for social engineering.4.

The judicial activism closely relates to the role of judiciary, in the case of Indira Gandhi v. Raj
Narain,5 it was held that the main aim of the judiciary is to ensure that the executive and the
legislature remain within the limits which are prescribed in the Constitution and also to interpret
the constitution and apply law to the interpreted facts that may arise.

If this case is understood through S.P. Sathe's assertion on judicial activism, it can be pointed out
that the role of judiciary is basically built on two models of judicial review. The first is the
technocratic model, where the judges act only as technocrats i.e. an expert or skilled person and
hold an act null and void if it is against the provisions of constitution or ultra vires the
constitution. In the second model, the judiciary interprets the constitution liberally and holds the
constitution alive through its diverse interpretation6. These interpretation are the core of judicial

1
Manika, ―Judicial Activism: A means for Attaining Good Governance‖, Nyaya Deep, NALSA, Vol. VII, Issue 3,
July 2006, pp. 117-132, p. 120
2
Black‘s Law Dictionary, 7th ed., (St. Paul, Minnesota: West Group, 1999)
3
Merriam-Webster‘s Dictionary of Law, (Springfield, Massachusetts: Merriam-Webster,1999)
4
S.P.Sathe, Judicial Activism, Journal of IndianSchool of Political Economy, Volume 10, Number 3
(JulySeptember), 1998, p. 399.
5
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
6
S.P. SATHE, JUDICIAL ACTIVISM IN INDIA ( Oxford University Press6th ed., 2007).

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review as it keep interpreting the law through the changing time, to bring the new laws which are
more popular or efficient in respect to those which were already present and caused
dissatisfaction within the society. Thus there is a constant need of changing the laws through
time or to remove the inefficient laws with help of judicial review. This judicial review took the
innovation of judicial creativity and carried forth the trend of Judicial Activism.

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 3. EVOLUTION OF JUDICIAL ACTIVISM

The origin of Judicial Activism is not of recent history but can be linked back a long way in
1608, when England was ruled by Stuart King James I. The King claimed that he might take
away any case from the courts and determine it in his Royal Person. Chief Justice Coke
responded that he could not do so as the proceedings are to be adjudicated by the judiciary in
keeping with England's rule and customs; and that the King should not be under human or uman
law, but only under the superior law of God and Almighty. Through this declaration, the courts
upholded the rule of law against the sovereign's arbitrary decisions. This shows the presence of
Judicial Activism at that time.

The supremacy of the judiciary can be seen in renowned case of Marbury v. Madison7, when
Chief Justice John Marshall emphasized and restated the power of the American Supreme Court
to go against the State and nullify an act of Congress. It is through this act that the principle of
Judicial review was established in United States of America.

In the another landmark judgement in 1857 of the Supreme Court of America under Chief Justice
Taney in Dred Scott v. Sandford8 held that persons with African dissent or Negros were inferior
to whites and that the legal protections granted by the constitution were not at their disposal, the
judgment accelerated the civil war between the Northern and Southern States, eventually leading
to the abolition of slavery and the strengthening of the Union.

Reasons for the growth of Judicial Activism can be divided in broad categories these are:

1. If the executive and legislature are not able to perform their respective duties and there is
a conflict of power between the two. The legislature fails to deal with the rapidly
changing circumstances and the needs of the society, and the executive cannot properly
dispose their administrative functions.

2. The citizen of a country looks upon their judicial system fot the protection of their
fundamental rights. Thus the judges have to act in a manner as to provide redress to the
complaints of the people.

7
Marbury v. Madison, 5 U.S. 137 (1803)
8
Dred Scott v. Sandford, 60 U.S. 393 (1856)

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 3. Individuals are also responsible for judicial activism because people right groups, bonded
labour groups, environmental protection groups, etc, are some groups or activists which
try to protect the specific interest of other people or whole in general. They work through
filing PIL‘s or Social action Litigation in order to protect the specific interest.

4. To fulfil the vacuum which created by any of the organ of the administrative of the
country by its inactivity, incompetence and disinterest in working then the other organs
expand their jurisdiction of working to fulfil that gap or vacuum which is created because
without the proper functioning of the administrative system of the country, a country will
collapse. Thus Judiciary is left with no other option rather to act outside its domain to
fulfil the gap.

5. When the legislature or executive cannot find a way for a social transformation mainly
because lack of knowledge, understanding or incapability. The judicial activism comes
into play.

Thus judicial activism is necessary within a democratic country as the citizens of the country
looks upon their judicial system for the remedy for all wrongs done to them unlawfully. The
judiciary is the most important among the three pillars as only this can protect its citizen from
any wrong done.

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 4. DOCTRINE OF SEPARATION OF POWERS

The Separation of Powers is a doctrine of Constitutional law under which the three branches of
the government that are the executive, the judiciary and the legislature have different powers and
their powers do not overlap with each other. The root of this power goes back to period of
Aristotle and Plato. Aristotle was first to describe the Government into three parts namely:
continuous executive power, discontinuous legislative power and federative power. ―Continuous
executive power‖ infers the executive and the judicial power, and ―discontinuous legislative
power‖ infers the rule making power, while ―federative power‟ implies the power regulating the
foreign affairs.

The French Jurist Montesquieu for the first time in his book L. Esprit Des Lois (Spirit of Laws)
published in 1748, articulated the principle of separation of powers. The idea of the separation of
powers has been laid forth. That's why he's known as this theory's new exponent. The theory of
Montesquieu, in fact, implies that one person or group of people should not possess all of the
government's three powers i.e. legislative, executive and judiciary

Montesquieu explained the doctrine in its own word they are:

―When the legislative and executive powers are united in the same person, or in the same body or
magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not
separates from the legislative and executive powers. Where it joined with the legislative power,
the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then
be the legislator. Where it joined with the executive power, the Judge might behave with
violence and oppression. There would be an end of everything was the same man or the same
body to exercise these three powers…‖9

There have been occasions when the judiciary has faced difficulties in upholding and retaining
the Doctrine of Separation of Power and has delivered significant judgments that explicitly speak
about the judicial independence and the development of the judiciary in India over the past six
decades.

9
Separation of Powers with Checks and Balances, Documents of Freedom (October 27,2019 11:25PM)
https://www.docsoffreedom.org/student/readings/separation-of-powers-with-checks-and-balances

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 In contemporary situation, this Doctrine of separation of power cannot function properly.
There is a need for a new and improved implementation of the doctrine that would serve the
purpose of the existing democratic need, whether it is a parliament or presidential form of
government. When we consider the context of important countries like the U.S.A., the U.K.,
China, Russia, France, Germany, Spain and the U.A.E., it can be easily understood that
Montesquieu proposed complete separation of power cannot be applied. All the organs are
subjected to each other's oversight by checks and balances. The laws made by parliament may
get veto if it is against the public policy by the President, or it can be made unconstitutional by
the Judiciary. It may therefore be better to say that all government bodies should act in a manner
that does not contravene to the country's principal law or rule of law and should be upheld in all
scenarios in order to preserve citizen's liberties and freedoms.

Consequently, each institution of the government are explicitly required to restraint

their powers to the domain provided or laid down in the Constitution and to serve the purpose for
which it is formed. This is called the doctrine of Self-restraint, which means that each organ
should not excessively interfere with the powers of the other organ of the judiciary and should
uphold the rule of law. But some intervention, omission or violation by one organ allows the
other organ to intervene. Here reference could be made to the Nuremberg Trials which were held
after World War II , where the Court ruled that the judges are not to rule on laws that are
contrary to decency and founded on unfair categories or are of an arbitrary nature or are
contradictory to moral principles; even if such laws are enacted by Parliament.

So, each organ are impliedly required to restraint their powers to the sphere which has been
provided or set forth in the Constitution and to undertake steps that serves the purpose for which
it is there. Any act, inaction or abuse of such powers by one organ calls for interference of the
other organ. Reference can here be made of Nuremberg trial, where in the Court has held that the
judges are not to act upon the laws which are against the humanity or based on unreasonable
classification or are arbitrary in nature or are against the moral principles; even if such laws are
passed by the parliament. The judges should refrained themselves from engaging in it and should
have supported the nation's interest by interpreting and bringing modifications to the laws that
were inhumane in nature. Likewise, Legislature should have ensured in its Constitution that its
laws are not contrary to the rule of law, or to public morality or decency. It should also keep a

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close watch on the rapid social changes and demands of people from time to time so that the laws
fulfill the needs of the people of the time and justice could be provided to them. the Executive
also refrain from enforcing the laws which are inhumane in nature and are against the natural
law, and which if enforced will fail to protect the basic interest of its citizen. The constitution of
a country is considered to be law of the land and it should pass the test of reasonableness and on
no order should enforce an inhumane law.

The separation of powers is the inherent feature of the Democratic Republic founded under our
Constitution between the three major pillars of the state: The Parliament and The State
Legislature, The Executive and The Judiciary. This doctrine of Separation of Powers is implied
in our Constitution it is not expressly provided anywhere, but the essence of the doctrine of
separation of powers and constitutional limitation in Indira Gandhi vs. Raj Narain 10 was
incorporated under the constitution's basic structure.11.

Judicial review and the Judicial activism thus keep check on the other organs of the government
so that don‘t exceed their power that has been granted to them in the constitution. This Judicial
review and activism are important element of our system of justice to keep a check on the
legislature who is the law makers of the land, so that they do not exceed their powers that the
constitution provided for them. Nevertheless, the independence of the judiciary from the other
institutions is considered acceptable so that the liberties of the common man can not under any
scenario be undermined and fair remedy can be provided to them. Therefore, the Indian
Constitution, which is a cautiously planned document intended to uphold the integrity and
freedom of every citizen, has not adopted the doctrine of the separation of powers in its entirety,
but has drawn a great deal from the idea and maintained it as a guiding philosophy. Yet, as
decided and upheld in number of cases by the Supreme Court, the principle of the Separation of
Powers has been included in our basic structure of the constitution. Therefore this doctrine
retains a very important position, although it has been changed to meet the needs of modern
government.

In India through PIL‘s acronym of Public Interest litigation has opened the access to the courts
for the poor people and the disadvantaged section. This is an unusual judicial activism through

10
Indira Gandhi vs. Raj Narain , 1975 AIR 865.

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PIL‘s. After 1979, India's Supreme Court has become important to the country in a way not
considered by constitutional creators and has become an active contributor in providing social
justice to citizens. Over the years this advantageous and unexceptionable nature of the
intervention of the Court in PIL has increasingly been turned into a general supervisory authority
to correct actions and policies of state, government agencies and authorities. This is a kind of
judicial activism is unmatched to any other judicial system.

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 5. JUDICIAL ACTIVISM IN INDIA

In the modern days, judicial activism is gaining importance in the Indian legal system. Citizens
are getting access to justice in the form of Public Interest Litigation (PIL).In the recent past, due
to the sudden degree of judicial interference, the judiciary has become highly debate.
Nonetheless the judicial activism is steadily growing because of the public interest litigation.

The theory of this rule can be explained on the basis that it is necessary that the judiciary should
also grow as the influence of the government grows. In public interest litigation the plaintiff
attempts to enforce and avoid a violation of general public law. In S.P Gupta v. Union of India
case12, the court explained the concept of PIL on the grounds of judicial activism. It was held
that where a substantive harm or injury to an individual or to a certain class of persons is
triggered by a breach of any constitutional or statutory right and where he is vulnerable or in a
socially or economically deprived position, he is unable to petition the court for a relief then any
member of the public can maintain an application for an appropriate direction, order or writ
under article 32 or 226 of the Indian Constitution.

Landmark Judgments:

• Kesavananda Bharati v. State of Kerala13

In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461Justice Khanna said that Judicial
Review has become an integral part of our Constitutional system and if the provisions of the
Statutes are to be found violative of any of the Articles of the Constitution which is the
touchstone for the validity of all the laws, the Supreme Court and the High Courts are
empowered to strike down the said provisions of the Statutes.

• Sajjan Singh vs. state of Rajasthan14

Two dissenting judges in Sajjan Singh v. RajasthanAIR 1965 SC 845 case raised doubts whether
the fundamental rights of citizens could become a plaything of the majority party in Parliament.

12
S.P Gupta v. Union of India AIR 1982 SC 149
13
Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461
14
Sajjan Singh vs. state of Rajasthan 1965 AIR 845

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The judges had the opinion that the law passed by the Legislature can be declared void if it
violates the Fundamental Rights.

• Minerva Mills v. Union of India15

In his minority judgment in Minerva Mills v. Union of India Bhagwati, J., observed:
―It is the judiciary to uphold the constitution values and to enforce the constitutional limitations.
That is the essence of the rule of the law, which inter alia requires that ‗the exercise of the
powers by the Government it be the legislature or the executive or any other authority, be
conditioned by the constitution and the law.‘ The power of the Judicial Review is an integral part
of the constitution system…. the power of judicial review…. Part of the basic structure of the
Constitution.‖

15
Minerva Mills v. Union of India , AIR 1980 SC 1789

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 6. CONCLUSION

Judicial activism is an idea that courts should play an active role in addressing cultural, economic
and political problems. Court must uphold the "guardian values" that they represent as people's
guardians. The study on judicial activism in India is incomplete without the PIL. The role of
judiciary is to secure the interest of public and to protect their constitutional and legal right
conferred on them by the constitution and also to protect the unprivileged section of the society
by imparting them with the social justice. Before the emergence of PIL the Indian Judiciary was
struggling to bring the law into the service of the unprivileged section of society. Due to this
struggle the judicial activism started in India and judiciary stared undertaking the functions of the
executive and the legislature because it is not qualified the functions that belong to other organs
of the government. Thus it violated the principle of trias politica i.e. Separation of Powers as
propounded by the Montesquieu , this doctrine has been incorporated in the basic structure by the
Supreme Court was now violated by the apex court itself.

This way the judicial activism has a negative effect on the Doctrine of Separation of Power the
solution to which is judicial restraint i.e. the judiciary should not excessively overlap with
powers of other organs. Though this power of check and balances can be exercised if gross
injustice is being done, then judicial activism is justified but unnecessarily exercising the
functions of other organs can‘t be justified and is in violation of the Doctrine of Separation of
Powers.

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 BIBLIOGRAPHY

Books

1. M. P. Jain, Indian Constitutional Law, 8th ed. Lexis Nexis, 2018.

2. V.N.Shukla, Constitution of India, 13th ed. EBC Publication, 2017.

Journals and Online Resources

1. Manika, ―Judicial Activism: A means for Attaining Good Governance‖, Nyaya Deep,
NALSA, Vol. VII, Issue 3, July 2006, pp. 117-132, p. 120
2. Separation of Powers with Checks and Balances, Documents of Freedom
https://www.docsoffreedom.org/student/readings/separation-of-powers-with-checks-and-
balances
3. S.P.Sathe, Judicial Activism, Journal of Indian School of Political Economy, Volume 10,
Number 3 (July September), 1998, p. 399.
4. S.P. SATHE, JUDICIAL ACTIVISM IN INDIA ( Oxford University Press6th ed., 2007).

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