CRITICAL STUDY IN JUDICIAL ACTIVISM

CLINICAL PAPER: DOCTRINAL

LLM. CRIMINAL LAW

SUBMITTED BY

YAGNESH B TRIVEDI

UNDER THE GUIDANCE AND SUPERVISION OF

ASSOCIATE PROF. DR. RAJESH SINGH

2023-24

PARUL INSTITUTE OF LAW, PARUL UNIVERSITY

P.O LIMDA- 391760, WAGHODIYA,

GUJARAT, INDIA
 CERTIFICATE

Thiswasto certify that the Dissertation “CRITICAL STUDY IN

JUDICIAL ACTIVISM” submitted by YAGNESH B TRIVEDI in
award of fulfilment for the award of the degree of LLM in Criminal
Law at Parul university wasthe Original work done by me. The work
had not been submitted for award of any other degree/diploma.

PLACE: Parul University, Vadodara

SUPERVISOR Name & Signature Of Student

ASSOCIATE PROF.

DR. RAJESH SINGH YAGNESH B TRIVEDI

PARUL UNIVERSITY

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 EXAMINERS CERTIFICATE OF APPROVAL

The LLM Dissertation titled “Critical Study in Judicial Activism” as

submitted by YAGNESH B TRIVEDI in partial fulfilment for the
award of degree of LLM in Criminal Law at Parul University, Vadodara
washereby approved.

SUPERVISOR

Associate. Prof. Dr. Rajesh Singh

PARUL UNIVERSITY

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 ACKNOWLEDGEMENT

During thisdissertation work, I have worked with great number of people whose
contributions have helped me in different ways of research for the making of
thisdissertation. It waswith great pleasure that I convey my gratitude to them.

I am very thankful to my guide and supervisor, Dr. Rajesh Singh Legal Professor, Parul
Institution of Law, Parul University, for giving me her valuable guidance and time
whenever and wherever required for conducting thisstudy.

I also express my gratitude to all Faculty Members of Parul Institution of Law, Parul
University for their help in the selection of the subject for the dissertation.

My sincere thanks are also extended to all the Faculty Members and Library Staff of the
faculty for extending their kind co-operation for the successful completion of
thisdissertation.

I am supremely grateful to my Parents and Friends for their never- ending support and
encouragement at every stage of my work.

Finally, I offer my gratitude to all others who have helped my directly or indirectly in
accomplishing thisresearch study.

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 CONTENTS

PG.
CHAPTER DESCRIPTION
NO.

Certificate 1

Examiners Certificate of Approval 2

Acknowledgement 3

Contents 4

I INTRODUCTION

1.1 Basic Concept 7

1.2 Rationale of Study 10

1.3 Aim and Objective of Study 10

1.4 Hypothesis 11

1.5 Significance and Utility of Study 11

1.6 Scope of Study 12

1.7 Research Methodology 12

1.8 Literature Review 13

1.9 Scheme of Study 23

HISTORICAL BACKGROUND OF JUDICIAL

II
ACTIVISM

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 2.1 Evolution and Historical Background of Judicial
24
Activism

2.2 Origin of Judicial Activism 25

2.3 Development of Judicial Activism 27

LEGISLATIVE PERSPECTIVE OF JUDICIAL

III
ACTIVISM

3.1 Judicial Activism and The Living Constitution 32

3.2 Judicial Activism in Respect of Legislation and

33
Executive

3.3 Related To the Amendments to the Fundamental

36
Rights

3.4 Constitutional Framework of Judicial Activism 53

3.5 Analytical Appreciation of Judicial Activism 57

3.6 Article 21and Judicial Activism Judicial Activism

61
or Judicial Intervention

3.7 Judicial Activism and Right to Equality 64

3.8 Judicial Activism and Fundamental Jurisprudence 66

3.9 Judicial Activism or Judicial Intervention 68

CHALLENGES AND LIMITATIONS OF

IV
JUDICIAL ACTIVISM

4.1 Conflicting views about Judicial Activism 71

4.2 Pros of Judicial Activism 72

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 4.3 Cons of Judicial Activism 72

JUDICIAL APPROACH TO JUDICIAL

V
ACTIVISM

5.1 Maneka Gandhi v. Union of India 74

5.2 Kharag Singh v. Uttar Pradesh 74

5.3 FrancwasCorral v. India Federalism 75

5.4 Pragati Varghese v. Cyril George Varghese 75

5.5 Highlighting Case Laws 76

5.6 PIL wasbase of Judicial Activism in India? 92

VI CONCLUSION & SUGGESTIONS

6.1 Conclusion 102

6.2 Analyswasof Judicial Activism 113

6.3 Suggestions 125

BIBLIOGRAPHY 127

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 CHAPTER 1 : INTRODUCTION

1.1 BASIC CONCEPT

At the outset, it was apt and proper to deal with the concept of 'Judicial
Activism', a phrase, which had been nomenclature through the writings by legal experts,
during the last two decades or so. Though sporadic or periodical writings on the subject
have been there, yet a need to understand it in all its ramifications, connotations and
denotation, in a comprehensive manner, was felt to have its basic understanding.

The expression Judicial Activism' had eluded definition as an abstract term. It

was incapable of formulation by definition only. Different people take its meaning in
different sense. To some it means "dynamism" of judges, to some it means "Judicial
Creativity" to some other it mean-s "innovative interpretation" of law by the judges. Yet
to some others it means "Social Revolution" or "Cultural Revolution" being brought
about by the judiciary and so on and so forth.

For understanding the scope of was expression, however, the role of judiciary
had to be properly understood. The term "activism" somehow or the other brings to
mind a concept of "revolution" and that was where the misconception about 'Judicial
Activism', arises. The judge while indulging in 'Judicial Activism', are not supposed to
be bringing about any "revolution".

The role of the judiciary as commonly understood was of settling disputes

between the adversaries within the limits of the law according to the language of law.
In the context of "Judicial Activism", therefore, it was necessary to re-evaluate the
functions of the judiciary because of different meanings which have been given to this
expression by academicians and jurists. In human affairs there was a constant recurring
cycle of change and experiment. A society changes as the norms acceptable to the
society under goes a change. Old ideologies and old systems give place to new set of
ideologies and new systems which in their turn are replaced by different ideologies and
different systems. The judges have to be alive to this reality and while discharging their

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 duties have to develop and expound the law on those lines acting within the bounds and
limits set out for them in the constitution.

Indeed the adversary system of judicial process was deeply entrenched in the
functioning of the judicial system in all countries of the world for this reason only. One
who complains about the violation of his rights or denial of his rights by others results
into adjudication, which was common scene in any court and this scenario was
irremovable or irreversible. Thus the dominant role the judiciary plays was in respect
of rights and obligations of the individual and to adjudicate upon the list brought before
it and it had come to stabilize the contours of its functioning. Thus it was clear that the
judiciary had at all times been active in this sense and dormant or passive in
contradistinction to the concept of 'Judicial Activism. Therefore it had to be concluded
that in its sweep, the said concept can be engrafted upon the judiciary when it makes
certain kinds of departures from the established principle and norms of judicial
functioning. The subject matter or contents of rights of citizens, its existence and denial
of certain rights therefore constitutes the trinity of pillars of the judicial systems all over
the world.

1.1.1 DEFINITIONS:

➢ MERRIAM WEBSTER’S DICTIONARY OF LAW:

“Judicial Activism was the practice in the judiciary of expanding and protecting
individuals‟ rights through decisions that depart from the established precedent or are
independent of or in opposition to supposed constitutional or legislative intent.”1

➢ BLACK’S LAW DICTIONARY

According to Black’s Law Dictionary judicial activism was “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

1
Merriam-Webster‟s Dictionary of Law, (Springfield, Massachusetts: Merriam-Webster, 1999).
2
Garner A. Bryan, Black‟s Law Dictionary (West Group Publication, 7 th edn., 2002) .

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 ➢ VIEWS OF SOME OF THE EMINENT JURISTS

The views od Eminent jurists are included hereunder for better understanding of the
meaning and development of the term judicial activism.

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 a functional democracy.”3

According to PROF. UPENDRA BAKSHI

“Judicial Activism was an inscriptive term. It means different things to different

people. While some may exalt the term by describing 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 criticized the term by describing
it as judicial extremism, judicial terrorism, judicial transgression into the domains of
the other two organs of the state, negating the constitutional spirit.”4

According to K.L. BHATIA

“Judicial activism in India was a shift from personal injury to public concern by
relaxing, broadening and expanding the concept of locus standi. Judicial activism in
India, was a progressive shift from “personal injury standing” to “public concern
Standing” by allowing access to justice pro bono to the public. That means public
spirited individuals and organizations on behalf of “lowly and lost” or
“underprivileged” or “underdogs” or “little men” who on account of constraints of
money, ignorance, Illiteracy have been bearing the pains of excesses without access to
justice.”5

3
Manika, “Judicial Activism: A means for Attaining Good Governance” 120 (Nyaya Deep,NALSA, Vol. VII,
Issue 3, July 2006).
4
Supra
5
K.L. Bhatia, Judicial Review and Judicial Activism – A comparative study of India and Germany From an
Indian perspective 116 (Deep & Deep Publications, New Delhi, 1997)

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 According to JUSTICE P.N. BHAGWATI

“The judge infuses life and blood into the dry Skelton provided by legislature
and creates a living organism appropriate and adequate to meet the needs of the society.
In the Indian context, the judiciary had adopted an activist oriented approach regarding
the interpretation of fundamental rights. The judiciary had expanded the frontiers of
fundamental rights through. A variety of techniques of judicial activism The Supreme
Court of India had undergone a radical change in the last few years and it was now
increasingly identified. By the justice as well as peoples last resort for the purpose of
protecting their fundamental rights.6

According to JUSTICE P.B. SAWANT

“Judicial activism was a procedure to evolve new principles, maxims, concepts,

Formulae and relief to do justice or to expand the standing of the litigant and open the
Door of courts for needy or to entertain litigation affecting the entire society or a Section
of it- as in case of public interest litigation.”7

1.2 RATIONALE OF THE STUDY

For the purpose of this study, the doctrinal methodology had been adopted and
various textbooks, journals and sources from internet have been extensively used for
the preparation of this dissertation.

1.3 AIM AND OBJECTIVE OF THE STUDY

• To understand the essence of true judicial activism in the rendering of decisions

which are in tune with the temper of the time.
• Plays a vital role in socio-economic process.

6
Justice P.N. Bhagawati, “Enforcement of Fundamental rights – Role of the Courts” 24 Indian Bar Review 19
(1997).
7
P.B. Sawant, Judicial Independence – Myth and Reality 70 (Board of Extra Mural Studies, Pune, 1987).

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 • To show signs of judicial activism in High Court by intervening in executive and
legislative areas.
• To preserve the sanctity of the Constitution's structure.
• Proving the necessity of judicial activism in restructuring the administrative
requirements.

1.4 HYPOTHESIS

• The present study was limited to constitutional frame work of Judiciary relating to
appointments, powers, functions. Independent Nature and Accountability.
• The independent Indian Judiciary was protecting fundamental rights, Federal
Character, supremacy of the constitution.

1.5 SIGNIFICANCE AND UTILITY OF THE STUDY

The significance of studying judicial activism in India lies in understanding the

evolving role of the judiciary in shaping the country's legal landscape, governance, and
society. By examining judicial activism, one can comprehend the extent to which the
judiciary influences policymaking, protects fundamental rights, and addresses socio-
economic disparities. Additionally, studying criticism surrounding judicial activism
fosters critical thinking about the balance of power among the branches of government
and the effectiveness of democratic institutions in upholding the rule of law. This
analysis aids in promoting transparency, accountability, and the rule of law, which are
essential components of a robust and functioning democracy like India.

Certainly! Studying judicial activism in India was essential across various sectors:

*Legal Community: It offers insights into legal interpretations, aiding lawyers and
judges in navigating legal complexities. Government and Policy: Understanding
judicial activism helps policymakers anticipate judicial interventions and design
policies aligned with constitutional values.

*Civil Society: Enables assessment of judiciary's responsiveness to societal concerns,

aiding advocacy efforts for social change.

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 *Citizens: Enhances awareness of rights and judiciary's role in safeguarding
democracy, empowering citizens to hold officials accountable.

1.6 SCOPE OF THE STUDY

Research was a process of either enhancing the existing knowledge or

discovering something totally new which is not known earlier. Research can be done in
any field or any walk of life, provided it should add something new to the existing
stock/pool of knowledge. Research was done in a systematic manner to achieve the
final result.

A research purpose was met through forming hypotheses, collecting data,

analysing results, forming conclusions, implementing findings into real-life
applications and forming new research questions. Based on the existing knowledge a
hypothesis was formed, appropriate research methods are designed, data was collected
and analysed, and research results are summarized into one or more „research
conclusions‟.

These research conclusions are then shared with the rest of the scientific
community to add to the existing pool of knowledge and serve as evidence to form
additional questions that can be investigated. It was this cyclical process that enables
scientific research to make continuous progress over the years; the true purpose of
research.

The purpose of research with reference to the judicial activism was to find out
the pros and cons of this concept and its ramifications on the political, social, and
economical aspects of the society.

1.7 RESEARCH METHODOLOGY

To a great extent the present work was in empirical study carried on with the
help of historical and descriptive methods. Data required for the purpose of this
dissertation have been collected from various sources and through diverse methods both
from primary and secondary sources.

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 The primary sources may be the various provisions of the Constitution of India
and the decisions rendered by the Supreme Court of India and other High Courts,
reported in different Law journals like the Supreme Court cases, All India Reporter etc.
The Secondary sources may include leading works on judiciary, Legal dictionaries and
articles written by eminent judges, Lawyers and Academicians etc.

Newspaper reports as well as writings in the journals and in the periodicals have
also been utilized. Besides, the findings of the various committees and Law
Commissions have been utilized for the dissertation.

The data, which have been used to know the facts, have been collected from the
reliable sources, which are authentic to the best of my Knowledge and belief.

1.8 LITERATURE REVIEW

So far, many researches and studies have been done to measure the effectiveness
of legalism in India. For further study of any subject or topic, it was necessary to
thoroughly study the existing literature and other works on the same subject/topic. The
present research paper had analyzed in detail various observations of prominent legal
scholars and legal scholars, how short they are after the previous research work on the
same subject/topic. Before starting a research project, it was important to familiarize
yourself with the literature on the same topic. But in the case of this study, legal scholars
made only a few observations about legalism. However brief they may be, this
groundbreaking study attempts to capture that. For analytical convenience, some
important studies are mentioned here below:

JUSTICE A.S. ANAND argues that

Legal activism, measured accurately, can prove to be a true reflection of the

dynamic nature of law in responding to the demands of society. He recognizes that legal
creativity, often called legal activism, was a way to develop new legal values for the
growth and advancement of jurisprudence. Jurisprudence was a recognized and well-
accepted part of the judicial system, not only in this country, but almost throughout the
country. all common law states around the world. Law must be dynamic in nature,
changing over time and according to the needs of society as the social environment
changes, and the judiciary tenaciously lived that realism. He appeals that the courts

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 should not be afraid to fulfill their constitutional obligations to ensure and protect the
human rights of citizens.

JUSTICE R.C. LAHOTI8 stated about

The activism of the judges: "As an independent judiciary, according to the

structure of the constitution, the court functioned effectively as a watchdog of the
constitution through judicial control of the activities of the legislative and executive
powers. The most important contribution of the Supreme Court isto follow the
constitution by limiting the role of the three organs of the state. If two organs of the
state do not fulfill their tasks, the third organ (judiciary) cannot remain a mute spectator.
The Supreme Court, operating within of the law, had always fulfilled the expectations
of the people as a guardian of their fundamental rights and of the constitution itself.
executive and legislature.

"Many new laws were passed after the judgments." Legal activism brought to
light many deep rooted scams like Hawala scams, fodder scams, St Kitts scams, illegal
distribution of government houses and petrol pumps, fertilizer scam etc. Therefore, it
tried to create a fair and transparent environment for the work of the executive power
and state institutions and made them more accountable.

JUSTICE A.K. SIKRI 9held the view

That judicial system was actually nudged by the judicial activism and thisin turn
had stimulated the executive and legislature too. “A lot of new legislations have been
enacted after the judicial pronouncements.” Judicial activism had brought to light many
deep rooted scams like, Hawala Scam, Fodder Scam, St. Kits Scam, Illegal Allotment
of Government Houses and Petrol Pumps, Fertilizer Scam and so on. Therefore it had
tried to create a fair and transparent environment in the working of the executive and
the public offices and made them more accountable”

Similarly, PROFESSOR MOOL CHAND SHARMA 10states that

There was no legal system in the world. to enjoy that abundant freedom and
reliability as in India. "While maintaining their independence and exercising judicial

8
Justice R.C.Lahoti, A Conspectus of Judicial System, Nyaya Deep, Vol.VI, Issue1, Jan.2005. p 7
9
Justice A.K.Sikri, Human Rights and Indian Judiciary, Nyaya Deep, Vol. VII, Issue 4, Oct. 2006, p.83.
10
Prof. Mool Chand Sharma, India at Cross – Roads Role of Universities and Youth, Nyaya

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 oversight, the Indian courts, especially the Supreme Court, have declared many acts
passed by the parliament as inconsistent with the provisions of the constitution. The
Indian judiciary had not only influenced national. political decisions on some key issues
through its judgments and directives, but in many ways it even led the political agenda
of the country, therefore it is defined as a strong institution committed to the rule of law,
constitutionalism and defenders of rights, Civil liberties and human rights."

According to JUSTICE K.G BALAKRISHNAN

As the guardian of the Constitution, the Supreme Court had to perform two main
functions: curb the unpredictability of the government and check its abuse of power. In
fact, the Supreme Court was seen as the protector of democratic values and civil
liberties. The argument that the Supreme Court must show self-control does not take
into account the decline and deterioration of the governance standards of other state
bodies and that the main task of the judiciary was to control and balance the activities
of other bodies. the main bodies of the state. An independent judiciary was a very
important part of the structure that protects the root of equality in the politics of the
majority, the rights of the weaker and degraded people.

Eminent jurist SOLI SORABJEE observes that:

"Critics of legal activism forget that the failure of the legislative and executive
branches to fulfill their responsibilities religiously compels the judiciary to push them
through legal activism. The judiciary cannot turn a blind eye. , Nelson , when gross
violations of human rights are pointed out.

JUSTICE MUKUL MUDGAL defines 11

Justice in his consciousness as a demand recognized by society and fulfilled by

the state. He describes law as a requirement recognized by society and enforced by the
state and explores the concept of rights in the Indian context, which includes many
rights to legal aid, right to speedy trial, right to human dignity, right to education, legal
aid . help arrested, right to livelihood, right to quality of life, prison Right, right to
health, right to social security and right to sexual harassment of women. Continuing to
interact with the common man who was unaware of the rights available to him, he was
a strong advocate for improving legal literacy in India. He also believes that the said

11
Justice Mukul Mudgal, Awareness of Rights, Nyaya Deep, Vol.VI, Issue 2, April. 2005. pp.94-104

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 rights embody the tireless efforts of the Indian judiciary to make these rights meaningful
to the poor masses of India.

JUSTICE J.S. VERMA12 states that

The current trend of judicial activism was only because of this. The current trend
of judicial action was only because other state bodies could not fulfill their duties and
responsibilities in the true spirit of the Constitution. He also warns that "only legal
activism in its practical form must be supported and practiced. Legal activism was
legitimate and welcome, but not legal aphorism that can tend to legal dictatorship. It
was a legitimate branch of the judiciary in a constitutional system of democracy."

Dr. M.M. MUSTAZHAR says,

Human rights are the natural rights of individuals and these rights cannot be
taken away from any person by any action of any ruler (state), they are indisputable.
The legal system isan active monitor of human rights. Proponents of legal activism
believe that a strong and influential judiciary was urgently needed to protect and defend
the human rights of the weaker sections of society. There had been a big change in the
attitude of the judicial system regarding the protection of individual human rights in
this regard.

JUSTICE V.G. PALSHIKAR13 opined that

Legal activism had its limits. The judiciary cannot take over the tasks and duties
of other state bodies under the guise of legalism. Powers of control cannot be expected
from any court, and it was in this respect that the limitations of the competence of
legalism must be carefully examined.

BIKRAMADITYA GHOSH AND J. PARTHADARATHI

Discuss the constitutional concept of the judiciary and believe that the role of
the judiciary in interpreting the constitution was extremely important. They found that
the concept of judicial activism was based on the exemplary role of the Constitutional
Court in a democracy.

12
Justice J.S.Verma, Protecting Human Rights through the Judicial Process, Second Justice M.Hidayatullah
Memorial Lecture, delivered on 21st December 2002 at Raipur. pp.1 -12.
13
Justice V.G.Palshikar, “Judicial Activism” The Law Review, Government Law College,Vol.7.p.60

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 They quote Dr. B.R. Ambedkar who felt that provisions for judicial review were
very necessary. According to him, the heart and soul of the CONSTITUTION were the
requirements for judicial review, especially the jurisdiction that provided immediate
relief for violation of fundamental rights. They further noted that in the post-Criswas
period, the court consciously or unconsciously began to move in this direction. They
add that constitutional expressions are open-textured, and it was up to the courts to
appreciate the increased nuances as situations arise. The court treats the constitution not
only as a statute, but also as an organic law of the nation. The authors of the article
conclude that if constitutionalism was a superstructure, judicial activism must be its
solid foundation.

JUSTICE B.N. SRI KRISHNA14 in his speech Delivered at the

Sesquicentenary celebrations of Government Law College, Mumbai on 1.10.2005.

He notes that "a judge was a human being, so the social climate in which he
operates will probably influence his judgment, but the extent to which he denies it
determines his abilities."

DR. KAMLA JAIN 15refers to

The legal activism shown by the judges of the Supreme Court, which was at a
high level regarding the protection of the human rights of the child. With some recent
and important Supreme Court and some High Court cases, Dr. Jain tried to reinforce
the point that the judiciary is very active (especially the Supreme Court of India). ) as a
champion of the human rights of children, playing an important role in protecting them
and creating a solid foundation for several important fundamental rights, including the
right not to go to prison, the right to be tried by a judge with special knowledge and
training. on proceedings against children, the right of the poor to free legal aid and the
right to be protected according to their choice, the right to a speedy trial, the right to
bail, the right to education, the welfare of children adopted by foreign parents, etc. The
Supreme Court is more active in juvenile justice. Regarding the rights of the child, the
courts have given various instructions several times, the author points out that

14
Justice B.N.Srikrishna, Skinning A Cat, Practical Lawyer, (2005) 8 SCC (3) 3. Thislecture wasa Continuation
of the debate initiated through two articles published earier viz., M.Hidayatullah, highways and Bye-Lanes of
Justice, (1984) 2 SCC J-1 and Justice V.R.KrishnaIyer, Democracy of Judicial Remedies – A Rejoinder to
Hidayatullah, (1984) 4 SCC J-43.
15
Dr. Kamala jain, Judicial Activism, Central India Law Quarterly, vol. VIII:1. 1995. pp 87 – 98.

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 unfortunately the ministries do not take them seriously enough. Therefore, the author
suggests that the activism of judges should necessarily include judicial vigilance and
control, which are necessary in the true spirit of enforcing court orders and decisions.

JUSTICE U.K. SABHARWAL in his interview16

Judicial Action was misleading. "If the law was not implemented, the judicial
system cannot turn a blind eye to it. The main function of the court was to enforce the
law. Legal activism or legal terrorism was a misnomer. Even after a court had struck
down a statute, it was entirely possible for Parliament to pass a new law to remove the
illegality.

JUSTICE M. N. RAO17 rightly explained

That being said, legal activity should not affect the essential provisions of the
Constitution or legislative enactments even if it requires legal activity. Efforts leading
to such concerns would end the establishment of constitutional organizations. In
conclusion, he stated that judicial activism, seen as moderation and self-control,
restores individual confidence in the effectiveness of democratic organizations, which
in turn makes the functions of the executive and legislature effective alone. under the
watchful eye of judges in accordance with the Constitution.

RADHA RAJAN18 spoke about

Legal activism, which had become increasingly active over the last two decades
because the executive branch had failed in its constitutional duty to serve the people it
purports to represent. It had failed because of corruption and it was disastrous because
of inefficiency. So legal activism was good

.ANIL DIVAN19 agrees with the views

That legal activism had taken a human face in India by making the legal process
more people-centric and providing relief to the poor and marginalized sections of the
society. The overuse of legal activism in India was because it provides a safety valve
for democracy and faith. It was believed that legal activism in India had taken a human

16
Interview to the Hindu, Oct. 21, 2005 (Reported by J. Venkatesan)”
17
“Judicial Activism” Practical Lawyer, (1997) 8 SCC Journal 1”
18
Radha Rajan, “Judicial Activism” VIGIL Public Opinion Forum, 2009
19
Anil Divan, “Judicial Activism and Democracy” THE HINDU Opinion – Leader page Article, April. 02, 2007.

18 | P a g e
 face by making the legal process more people-centric and providing relief to the weaker
and marginalized sections of the society. The excessive use of legal activism in India
stems from the fact that it provides a safety valve for democracy and the belief that
justice was beyond the reach of the common man. Legal activism had survived and
thrived in India as long as the judiciary remains committed to its core mission of
protecting the rights of the common citizens of the country.

KAVITA JITANI 20believes that

The idea of legal activism and public interest litigation are closely related.
Public interest litigation had become the favorite tool of every citizen in the fight
against incompetent and unscrupulous governments. Credit for protecting the
fundamental rights of the citizen belongs to the Supreme Court, which in its various
decisions supported the constitutional, banal for the common people. The overactive
attitude of the judiciary had often been called legalism. Viewed from different
perspectives, such judicial hyperactivity provoked a range of reactions, from elevated
spirits to caution and mistrust.

JUSTICE S.R. NAYAK states in hisbook Defense of Human Rights, Law and
Social Policy Edition 21

That the Supreme Court had optimistically and actively explained and clarified
the scope and extent of fundamental rights, mainly the guaranteed right to life, over the
years. according to Article 21 of the Constitution. The court gave positive directions for
the implementation and enforcement of the law. The clarion call of the hour wasthat it
wasthe duty of judges to come to the aid of disadvantaged and marginalized groups,
help them understand their benefits and protect their rights, and help them realize their
economic and social rights. "As human rights violations increase, courts and judges are
expected to take an active role in protecting and promoting citizens' human rights."

PROFESSOR RAMESH THAKUR22 of the University of Waterloo

Points out that legislation, law enforcement and law interpretation are divided
into three branches of government: the legislature, executive and judiciary, which
operate in separate domains. Indian politics had recently been hit by two headwinds:

20
Kavitha Jitani, Democracy and Judicial Imperialism, Ind law News, May 24, 2009
21
S.R.Nayak, Protection of Human Rights, Journal of Law and Social Policy pp.34-40
22
Ramesh Thakur, Judicial Activism, Romanticism & overreach, The Hindu – opinion, March 04.2008.

19 | P a g e
 the first relates to the implementation and enforcement of a recently passed law.
Another seed of Indian politics wasthe recourse to the judiciary to find solutions to
problems that actually had only political solutions. The author calls it legal romance as
an opportunity to go to court to find a solution to any problem. Romantics dislike
political and diplomatic choices." He concludes that the existence of the rule of law
requires the judiciary to be universal, impartial and impersonal, yet controlled.

JUSTICE DR S.R. NAYAK23, Opinions,

Judicial activism had become tyranny. of the judiciary when the court in its new
avatar had lost its true constitutional role. He believes that judicial activism becomes
judicial tyranny when the judicial process wasinfected by dishonest or corrupt
authorities. He also states that the courts must maintain social balance by intervening
when necessary in the name of justice.

JUSTICE KULDIP SINGH24 said during Birla's 12th memorial address that

"The main duty of the Judiciary isto check the failure of the
Government/Executive to implement the fundamental human rights. It isthe duty of the
Government to ensure that the fundamental human rights are exercised in accordance
with the provisions of the Constitution. Legislative bodies and administrative bodies
are the least concerned about the common man. In the preliminary evaluation of the
judicial system, it can be seen that government agencies would act in the interest of the
people.

JUSTICE CARDOZO, in hisbook The nature of the judicial process, said,

Quoted by DR. RAMBABU DUBEY AND GEETA SHRIVASTAVA25, The

Realist School and Legal Activism in India, Law Never Exists But Comes. It's not about
what the judges said, it's about what they do.

As DR. ANJANA MAITRA, Human Rights wasa provisional historical outline

of four distinct human rights in the Indian context such as

• Civil and Political Rights,

23
Judicial Activism or Judicial Tyranny, ITAT online.org April. 2009, Reproduced from AIFTP Journal, Oct.
24
While delivering the 12th Birla Memorial Oration on Human Rights and Judiciary.
25
Central India Law Quarterly, Vol. XIII.

20 | P a g e
 • Rights of Marginalized Persons,

• Economic, Social and Cultural Rights, and

• Right to Transparent and Accountable governance.

He suggests that if human rights are to have real meaning, they must include the
public. Rights are only realized when individuals begin to realize their full potential as
human beings and declare their rights in the private and public spheres.

KAMALUDDIN KHAN26 statesThe idea of public interest litigation and legal

activism are necessary to the extent necessary for participatory public law. He supported
hisarguments by citing important judgments of the Supreme Administrative Court
against PILs like Ratlam Municipality case, Oleum gas leak case, Ganga pollution case
etc. The Supreme Court played a crucial role in shaping. in public interest disputes. For
example, the principle of absolute liability ispresented in the Oleum Gas Leak case, the
Public Trust Doctrine in the Kamal Nath case, etc.Discussing the previous debate on
legalism,

PRITHA JHA stated that \it was a known fact that legal activism had produced
very good jurisprudence that had brought about great changes in society, but its
continuity must be questioned. The Economic Times focuses on the boundary that
Judicial Activism touches on the gray areas of activism,

Covering the views of Supreme Court JUSTICES A.K.MATHUR AND

M.KATJU. Citing the judgments of the Delhi and Punjab High Courts, the two judges
sought to curb the increased number of court proceedings. The Delhi High Court
encroached on the powers of the Executive and the Parliament by identifying illegal
structures to be demolished.

One can refer to the works of A. Krishna Kumar and also Kermit Roosevelt on
judicial activism. Arthur Schlesinger Jr. coined the term legal activism in a January
1947 Fortune magazine article titled Supreme Court: 1947. But Schlesinger could not

26
Kamaluddin Khan, Public Interest Litigation and Judicial Activism,
http://www.twocircles.net/legal_circle/publicinterest-litigatin_and_judicial_activism..

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 explain exactly what activism is, nor satisfactorily whether activism was good or bad.
This sentence is controversial from the beginning.

1.9 SCHEME OF STUDY

CHAPTER 1: The work is initiated by providing an introduction about the subject matter and
making others aware on various segments of the study viz: scope of the study, Reasons for the
study and varied limitations. It also explains the importance of the study and specific the
postulations/hypothesis which form the basis of the study. Moreover, it gives the information
about the objects which it seeks to achieve. Last but not the least it provides for the
methodology adopted in completion of the whole
research work.

CHAPTER 2: The second chapter highlights the history and background of the Judicial
Activism prevelant in India.It talks about the evolution of Judicial Activism since time
immerial and hoe it has evolved and how it is being interpreted in recent times.

CHAPTER 3: The Chapter has been devised to cover Legislative Perception. The recent years
have been witnessing to some landmark interpretations and directives related to Judicial
Activism. The present chapter focuses on the various types of laws and policies which have
been formed in this regard..

CHAPTER 4: This Chapter has been included about the challenges and limitations posed to
the Judicia Activism in India. How the benefits are ther and what are the cons of Judicial
Activism is highlighted in this chapter.

CHAPTER 5: The Chapter has been devised to cover Judicial Perception. The recent years
have been witnessing to some landmark interpretations and directives related to Judicial
Activism. The present chapter focuses on the various types of laws and policies which have
been formed in this regard..

CHAPTER 5: The final chapter sums up the study and deals with the conclusion

22 | P a g e
devised by the researcher on the given Research topic. Summarizing the research and devising
Conclusions and has also provided certain suggestions in the same regard.

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 CHAPTER 2: HISTORICAL BACKGROUND OF JUDICIAL
ACTIVISM

2.1 EVOLUTION AND HISTORICAL BACKGROUND OF "LEGAL ACTIVISM".

If we look at the historical background, we find that the term "legal activism"
wasnot a recent past. Legal activism appeared in the English courts in the form of
concepts such as "equality" and "natural justice" at a time when legislative laws had no
protection for the people. The origin of thisinstitution can be traced to the solemn
opinion of Chief Justice Coke in the case of Dr. Bonham, where an Act of Parliament,
confirming the Royal Charter of Physicians, authorized the American Medical
Association to impose fines on members who violated its rules , half of the fine being
thus understood to go to the Crown, and the other half to the Society itself. Dr. Bonham,
who had been imprisoned for failure to pay a fine imposed by the society, brought an
action for false imprisonment.

The court, presided over by Chief Justice Coke, rejected the suit, finding the
law void insofar as it changed the interest of society in both the part of the prosecutor
and the judge of the fine, contrary to the general law. and the reason. Coke argued that
such a law could be submitted to a court of "Judicial Review" and declared invalid. The
next chief justice, Hobart, repeated thisview in 1615.

However, the doctrine of judicial review didnt take root in England for two
reasons: first, the sovereignty of parliament defeated any competitor, i.e. the power of
the British parliament. the people ensured the rule of law without "judicial control". So
it didnt leave a lasting impression on England, the country of parliamentary sovereignty,
it isa spark in the development of constitutionalism in the modern democratic system.
In thisway, the modern concept of judicial review wasconsidered to have originated in
the United States.

The doctrine of "Marshall CJ's Legally Formulated Court" isreiterated by

eminent judges such as Tanney, Evan Hughes. , Harlan Stone, Warren, and Burger. So,
it wassafe to say that the idea of "Judicial Review" originated in England, but it
isapplied as jurisprudence only in the United States.In thiscountry, "Judicial Activism"
wasas old as the United States. From America itself. In its early stages, thistook the

24 | P a g e
 form of judicial review, since "judicial review isnot expressly provided for in the United
States Constitution, the courts, and especially the United States Supreme Court,
assumed the role of judicial review and began to strike down. state and federal
legislation. Between 1898 and 1937, the US Supreme Court recognized 50 Acts of
Congress and about 400 state laws as unconstitutional.

The US Supreme Court's process of developing the concept of judicial review

wasbest illustrated by Dred Scott v., which said that the black man isthe property of
hismaster, not a "citizen," and therefore could not sue, thus legalizing "slavery" and
discrimination based on "color" and "religion.", isrejected a hundred years later in
Brown v. Board of Education, when it issaid that "slavery" is"dehumanizing", a
despicable institution that denied human dignity to the extent that no one the court could
not support it, and the right judgment isgiven. burial in the case of Bakke. Thishappened
because the value that led society when Dred Scott isdecided underwent a major change
and didnt hold until the time when Brown or Bakke were decided. The era of "Judicial
Activism" in its current sense began in America in 1954 and peaked in the 1950s and
60s, sending shockwaves through the legal and political worlds and shaking the nation
morally and politically and making people think and rethink . - evaluate the institutions
and moral standards created by them.

2.2 START OF LEGAL ACTIVISM IN INDIA

The real credit for starting legal activism in India goes mainly to the Supreme
Court, which simplified the complexities of the legal process. Did everything possible
to simplify the judicial process so that people could give justice to the common man to
a large extent. For this, new policies, new tools and new opportunities were created so
that the goal of social justice could be achieved. Learned judges through public interest
litigation. Efforts to make related law more practical and creative.Livemp's "right to be
heard" rule raises the issue of enforcement by the Supreme Court, Justice V.R. A dark
woman, Iyer opined in Dabholkar's case that the benefactor must have the opportunity
to be neglected, deprived or expelled. By submitting an application to the court on
behalf of a poor person, relief and rights can be claimed even if that person had no
direct or indirect personal interest in the matter. Taking the Maharashtra Bar Council as
its person, the Bar Council of India challenged the decision of the Disciplinary

25 | P a g e
 Commission of India. It isconsidered appropriate to give 7 an opportunity to appeal as
it isin the public interest. the preservation of the professional behavior and ethics of the
lawyer isabsolutely necessary.Later in 1978, the Supreme Court in the case Maneka
Gandhi In relation to § 21 of the Constitution, the term "legislative actions" had a broad
meaning when interpreted, it included both substantive and procedural proceedings. the
same kind of law wasmotivated. 1979.

In the Supreme Court decided Hussain Ara Khatoon Vs. The "Bihar State" topic
widened the scope of topics of general interest. In thiscase, the lawyer based on the
news published in the newspaper to draw attention to the state of litigation in Bihar.
The release of hundreds of imprisoned prisoners became possible. Even Gujarat High
Court K. Justice M.K. Kakkar wrote a letter to the widow Mrs. Karvina, in which she
set aside the pension fund in case of delay in receiving the family pension. Complaints
were made about the carelessness and negligence of the officials, in the form of a
statement that I received and listened to her and got justice for thiswoman, which she
could not imagine before, that a fair decision would be given to the Supreme Court. in
writing a simple letter, he got hispension after years of waiting and the Provident fund
amount will be there soon.

Another chapter isadded on the course of matters of public interest, when the
Supreme Court decided to act in the public interest of public institutions, agencies,
municipal enterprises, etc., before the public, accepting a request for help. against the
creation. or to prevent harm. As a result, the Supreme Court decided the municipal
council to reject the government's argument that due to lack of funds, it wasunable to
provide the public facilities intended for that purpose. It wassaid that in thiscase, the
applicant presented a preliminary request based on § 133 of the Code of Criminal
Procedure. And in the same case, it isdecided in the appeal of the Supreme Court that
the Code of Criminal Procedure. causes confusion. General city council and court can
apply according to article 133, city council can give direction on cleanliness.

2.3 DEVELOPMENT OF LEGAL ACTIVISM

Since the promulgation of the Constitution of India in 1950, the greatest

development had been the expansion of the judiciary as the most important of the four
branches of government, namely the legislature and the executive. In no other country

26 | P a g e
 in the world had the judiciary in India assumed such supremacy. Former Chief Justice
Pathak observed that "The judicial review \enlightened by the Supreme Court of India
wasperhaps the broadest and most comprehensive in the legal world. 27 There wasno
doubt that the Supreme Court of India wasthe most powerful of all apex courts . in the
world.. Thisdevelopment should not be seen only as an advancement in the Court.

The fact wasthat a very active judiciary with unlimited revision powers must be
reconciled with representative and revision powers. Our constitutional democracy. The
situation .it wasnot quite the birth of the judiciary. .It isthe fall of responsible
government in India and the pressure on the judiciary to intervene that forced the
judiciary to react and make political decisions. In thiscontext, it wasworth noting that
the traditional concept of the judiciary, i.e. the interpreter of laws, had changed rapidly
in India in recent years. The continued and consistent failure of the legislature and the
executive to fulfill their constitutional duties had made legal activism inevitable. Thus,
the courts were asked to make decisions or matters that were previously the exclusive
domain of the executive.

It does not apply means that legal activism wasincreased legal activism,
enthusiasm or keen understanding of the value and meaning of law in action. But it
wasnothing other than legal self-awareness, responsibility and concern for socio-
economic existence and power distribution in society28. In other words, it basically
means participation hat constitutional progress as distinct from the performance of
welfare state functions. Webster's New 20th Century Dictionary says that 'activism'
means," the doctrine or policy of being active. doing things. with determination. " Legal
activism therefore means activism based on the legal process, which in turn means a
legal opinion on various complex issues with a new legal philosophy. Definition Legal
Activism wasa recognized principle of constitutional governance.

There wasa lot of it in the constitution, but it wasused when the situation calls
for it. In addition to what wasstipulated in the constitution, the creative common sense
of \judges also played an important role in the growth of legal activism. By its very
nature, judicial activism wastherefore legal, but can be interpreted by different jurists
depending on the circumstances in which it wasused. While judges still have their own

27
Union of India v. Raghubir Sing (1989) 2 SCC 754-766
28
K L Bhatia Judicial Activism and Social Change, Deep and Deep Publications, New Delhi 1990 p.225

27 | P a g e
ideology when it comes to constitutional matters, the Constitution wassupreme and
every decision wasmade considering the spirit of the Constitution. Despite its wild
popularity, the term "legal activism" waspoorly understood. For professionals,
politicians, judges and the general public, talking about activism wasso common that it
disguises itself as natural and timeless. Even among legal experts, few know where the
term originated or why it became mainstream, and despite repeated protests against its
removal, no scholar had adequately explained what (if anything) should mean.

Note that legalism wasa concern of courts to find an appropriate remedy for the
offended formulation of a new rule to resolve conflicting questions in cases of illegal
or uncertain legislation. Legal Activism in India as he accepts to cite the right of review
by Supreme Court Courts according to Articles 32 and 226 of the Constitution,
especially in Public Interest Litigation. Distributing justice to more than a hundred
million inhabitants does not sound and will never be an easy task. But in a country like
India, it becomes more and more difficult. The various cultures, environment,
languages and religions of thiscountry are balanced like walking on a tightrope, one
wrong foot can throw the whole country into disarray. The apparently overlapping
powers of the leaders of a nation can create serious problems in thisregard. Executive,
Legislative and Judiciary are the three wings of Indian democracy. The Constitution
gives them powers and at the same time burdens them with duties. The parliament
formulates the law and the judiciary interprets it. As simple as it sounds, exploring the
scope of the words "formula" and" interpretation" can confound the best in the field.
Most believe that the judiciary goes a step further under the guise of interpreting the
law and gives the state a new binding law, usually different from the current one.
Thiswascalled legal activism. Since courts were created as a means of administering
justice, law is\unchosen from two sources.

The main source wasfrom the legislative period and the second wasjudicially
made law, ie. legal interpretation of already existing legislation. The Constitution of
India also recognized these two regimes of legislation. Article 141 of the Constitution
of India orders to follow the law declared by the Supreme Court. Making laws by judges
wascalled judicial activism. Legal activism, as distinguished from legal passivism,
refers to a judge's active interpretation of existing legislation with the goal of increasing
the usefulness of that legislation for the betterment of society. Legal passivism
interprets existing legislation very loosely and liberally without trying to strengthen its

28 | P a g e
 beneficial aspects by interpreting existing law in a way that promotes and promotes the
beneficial dimension of those legislations29. The phenomenon now known as legal
activism wastherefore not a newborn phenomenon.

The lawmaking process of judges wascalled judicial activism. Legalactivism,

as distinguished from legal passivism, refers to a judge's active interpretation of existing
legislation with the goal of increasing the usefulness of that legislation for the
betterment of society. Legal passivism interprets existing legislation very loosely and
liberally without trying to strengthen its useful aspects by interpreting existing law in a
way that promotes and promotes the useful dimension of those legislations. The
phenomenon now known as legal activism wastherefore not a newborn phenomenon.
It began with the stable establishment of the means of justice by the courts. Several
early examples of judicial activism can denoting several decisions of the Privy Council,
the Federal Court and the Supreme Court of India in its glorious infancy. The first step
in thisstudy wasto distinguish the concept of ``legal activism'', coined by Arthur
Schlesinger . in 1947, in the older concept of legalism. Part A begins with Schlesinger.
Although some comments suggest that the meaning of legalism isonce clear and had
only now been obscured, the opposite wascloser to the truth. Schlesinger's original
presentation of legal activism isdoubly vague: not only did he not explain what
constitutes activism, but he also refused to say whether activism wasgood or bad. The
shortcomings of Schlesinger's report, however, prevented the term from spreading,
largely due to unexpected events such as school segregation and the advent of federal
court scholarship. Such eclectic origins explain why ``legal activism'' wasdifficult to
define, but explains why the term continues to attract attention.

In BANDHUA MUKTI MORCHA V. BIHAR30, the court affirmed the right

to supervise the implementation of beneficial legislation. . who tried to liquidate the
work of \Norway. Although the practice isprohibited by the constitution, it continued
due to parliamentary and government inaction. Especially \during the state of
emergency, the court started its activities in such matters as legal aid and the liquidation
of the \Norwegian workforce, which were part of the 20-point program of the
\emergency system. The emergency system apparently suffered. of a guilt complex for
imposing an authoritarian regime on the people. Trying to overcome thisfeeling, the

29
T. R Andhyarujina, Judicial Activism and Constitutional Democracy in India, 1992, P9
30
(1984) 3 SCC 161

29 | P a g e
emergency regime passed several progressive laws such as1955. the Civil Rights Act
of 1976, which replaced the Crimes Against Civil Rights Act, the Penal Labor Act of
1976, and the urban headland. and Regulation Act. 1976.

The court started working on the issues that the urgent administration put on the
agenda. When Cart raised these issues, it could no longer be said that the Court isthe
protector of property owners or that the Court ison the way to \social change. Now the
equation wasreversed. The court began to demand the actual implementation of the
social reforms initiated by the aforementioned legislation of the executive power. The
government seemed to be on the defensive', but it could not blame the court because
the court asked the government to do what it promised to do in its legislation.

It reads: The verdict of the jury isinspired. there are no higher powers that guide
the destinies of men and nations, and it may be the will of a patron that the cause I
represent should be made better by my sufferings or by my remaining free. Many
advantages Indian judges initiated the development of new jurisprudence. Thisissue
isdiscussed at length by Iry Justice P.B. Mukerjee Tagore Law Lecture delivered in
1970. Some judges of ordinary vision and creativity preached thisnew doctrine even
before the Constitution came into force.1893. In 2010, Justice Mahamood presented the
basics of natural law in a criminal statement. which establishes the principles that a
convicted person, if not represented by a lawyer, must be heard in person during the
appeal process.

The Vivian Bose court ruled in 1949 that the doctrine of sovereign immunity
does not protect the state from vicarious liability for torts caused by a forest official
because the activities of the forest board are commercial in nature. So the dimension of
witchcraft, commonly known as legal activism, wasancient and imported.

30 | P a g e
CHAPTER 3: LEGISLATIVE PERSPECTIVE OF JUDICIAL ACTIVISM

3.1 JUDICIAL ACTIVISM AND THE LIVING CONSTITUTION

Although constitutional scholars have defined a constitution as a legal document

that defines the framework of government for a particular country, they refuse to accept
that it wassimply a "document". To prove their contention, these lawyers presented a living
constitutional philosophy. Thisphilosophy originated in America. These lawyers believe
that the Constitution wasvery much like a living organism. It grows and adapts to the
changing needs of time. According to Benjamin N Cardozo, "the Constitution does not and
must not establish rules for the present, but principles for an expansive future".Judicial
review wasa means to achieve the purpose of the Constitution. Already in 1908, Woodrow
Wilson emphadized the goals of the Constitution in hiswork "Constitutional Government
in the United States": "Government wasnot a machine, but a living being. It belongs not to
the theory of the universe, but to the theory of organicity. It wasaccountable to Darwin, not
to Newton, it wasformed by the environment, the functions require it, the pressure of life
shapes it into its functions.

Living political constitutions must be Darwinian in design and practice. There are
three objections against the Judiciary treating the Constitution as a living document:

• The Constitution iscreated to allow the modernization of democratic governments

elected by the people, not by a judge;

• Sometimes the Court had unfortunately failed to do so. do the right thing; and.
Promoting society through a free and unelected judiciary wascompletely unacceptable in a
democratic society.The strongest argument against the "Living Constitution" doctrine
comes not from its moderate use, but from the fact that the concept wasseen as promoting
activism. The expression implicitly assumes that "what waswritten wasinadequate after the
fact." Thismore moderate concept wasnot usually the aim of those who oppose a "living
constitution". A concept considered perverse by constructionists was"letting the law say
what you think it should say instead of obeying what it says".

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3.2 JUDICIAL ACTIVISM IN RESPECT OF LEGISLATION AND EXECUTIVE

Current legalistic conflicts concern the moral decline of the legislature and the
executive, and the scope and enforcement of legal processes. If we look at the various
decisions of the Supreme Court, it becomes clear that in the early years of the post-
independence period, the principle of collective wisdom of Parliament isrecognized in
the decisions of the Supreme Court.Thismeans that the Supreme Court didnt recognize
the laws approved by the Parliament and implemented by the executive within the
framework of the Constitution as incompatible with the Constitution.

But the failure of the parliament and the executive to fulfill their constitutional
obligations forced the judiciary to encourage them through legal activism because the
judiciary wasthe guardian of the constitution. Finally, it can be concluded that the
overactivity of the judiciary (the activism of the courts) wasa direct consequence of the
inability of the legislative and executive bodies to fulfill their constitutional duties.The
basic principle of all federal structures wasthat when the Constitution becomes the
supreme law of the land, the various organs of the state must exercise their
constitutional powers in their respective spheres. If thisprescribed principle
wasviolated, not only the laws passed by the Parliament but also the executive power
of those laws will be nullified.

Thus, it waswrong to criticize the judiciary for being hyperactive, because the
judiciary becomes hyperactive only when both the legislature and the executive do not
follow the instructions of the Constitution.So, we can conclude that legal activism
wasnot an extrajudicial activity, but wasin itself a basic principle of the legal process.
According to the current scenario, the relationship between the legislative and executive
powers on the one hand and the judicial power on the other can be explained by the fact
that the frames of the constitution prioritized the legislative power when implementing
the parliamentary system of government. division of power between three state
agencies. They chose the former over the former to make the 98th CEO more
accountable, like B.R. Ambedkar said: "In a parliamentary form of government. The
responsibility of the executive wasensured not only after a certain period of time but
also on a daily basis. It wasstill a parliamentary form of government. The parliament
and the executive have two forms the state party (executive) who gets the majority in
the Lok Sabha (lower house of parliament).Heads of ministries are also members of

32 | P a g e
both houses of parliament (Lok Sabha or Rajya Sabha), so ministers have two functions:
make laws (legislative) and implement them (administrative).

As members of parliament, they participate in the preparation of laws, as heads

of ministries, they implement them. In other words, in thisparliamentary form of
government. The parliament and the executive are closely related. The executive branch
waspart of the legislative branch. In light of this, the practical superiority of the
Parliament over judges had probably strengthened. All important decisions regarding
the development of new laws are made by the government (an elected group of
ministers who manage important ministries) and are sent through parliament to
complete the legislative process.The weakening of the functioning of the legislature
and the executive wasnot a sudden development but wasa gradual consequence of
various past events. The framers of the constitution tried as much as possible to include
idealistic liberal principles in the constitution, but the practical application of those
principles could not be measured. The members of the Constituent Assembly, tasked
with drafting the Constitution of independent India, were very intelligent and learned
erudition.

The constitution drafted by these members for independent India isfully

adopted. The Legislative Assembly undertook the drafting and implementation of the
Constitution.The members of the Constituent Assembly were renamed as
parliamentarians. The political need to get a majority in the Lok Sabha to form a
government. and implement their policies, made political parties look for candidates
with more popularity among the masses than intellectual merit. Thus, the Parliament as
an intellectual center isgradually replaced by less educated, uneducated and polluted
and corrupt members. The members who were at the forefront of the matter tried to
distort the delicate balance of the distribution of power between the various organs of
the state under the guise of reform, but in the background for their own benefit. As a
result, the political and social environment of the country became unstable and the
intention of the executive isquestioned.

Thisisthe main reason for the rise of organized injustice and mass unrest against
the unconstitutional actions of the executive and parliament. All these incidents put an
end to legal activism. India accepted the doctrine of constitutional supremacy and the
judiciary isentrusted with the supervision of the constitution. Thus, all the activities of

33 | P a g e
 the legislatures and executives are subject to judicial review. The judiciary iskept
separate from the legislature and the executive so that it could perform its free and fair
task. Thisfact isalso confirmed by the Supreme Court in the Sankal Chand Seth case,
where the Supreme Court emphadized the independence of the judiciary in performing
its constitutional functions.In fact, the Govt. (Government) wasformed as a result of
free and fair elections and wasresponsible for legislation and enforcement of all rules
and laws. Sometimes the implementation of these rules and laws directly affects the
social, economic, political freedom and freedom of the citizens. Thistriggers the process
of legal intervention. Main mission..

3.2.1 JUDICIAL ACTIVISM IN LEGISLATIVE DOMAIN

We can analyse it from three points of view.

• In relation to the amendments by the legislature to the fundamental rights.

• In relation to the mutual relation of the fundamental rights and directive principles
of the state policy.
• The deterioting condition of the legislative institution.31

3.3 RELATED TO THE AMENDMENTS TO THE FUNDAMENTAL RIGHTS

The Supreme Court had fully considered thismatter and made various decisions
in thismatter, where some amendments to fundamental rights made by the legislator are
inconsistent with the Constitution. But the parliament defied the Supreme Court rulings
by amending the constitution to achieve the desired result. Thisundoubtedly eroded the
prestige and authority of the judiciary and made it a spineless institution.If any decision
of the Supreme Court contradicts the aspirations of the ruling system, then the decision
wascircumvented either retroactively by making new laws or by making appropriate
changes in the existing laws that make the decisions meaningless.

The conflict between the parliament and the judiciary peaked in the sixth and
seventh decades of the 20th century, leading to some important Supreme Court
decisions such as Sajjan Singh Vs. State of Rajasthan (1965), Shankri Parsad Vs. India
1951, in 1951. If the Supreme Court, which left parliament empowered to amend any

31
AIR 1965, SC 845.

34 | P a g e
part of the constitution under Article 368, also confirmed the validity of the parliament's
suspension of fundamental rights, such amendments do not fall within the ambit of
Article 13 from the constitution.

But the Hon'ble Supreme Court in Golaknath v. State of Punjab in 1967

overruled its earlier decision regarding restriction of fundamental rights of citizens by
parliament. The Supreme Court ruled 6:5, according to which the parliament cannot
reduce or take away the fundamental rights of citizens. The Supreme Court further
noted that Article 368 only mentions the procedure to change the Constitution, but it
does not allow Parliament to change the fundamental rights foreseen in Part III of the
Constitution. In short, the Supreme Court stated that the procedure to amend the
Parliament under Article 368 falls within the scope of Article 13 of the Constitution,
and if such an amendment conflicts with Part III of the Constitution, the said
amendment must be approved. isdeclared unconstitutional by the court.Practically
thisisthe first direct confrontation between parliament and judiciary. Much
emphadwasislaid on fundamental rights and they were declared immune to the whims
and fancies of the executive.

CASE OF GOLAKNATH JUDGMENT CRITICAL ON TWO CASES

The conservative definition of fundamental rights had been used as a tool to

deprive the poor and marginalized societies of the fruits of social and economic
development.There isa direct and open confrontation between the legislature and the
judiciary, the two most important organs of the state.To express hiscritical opinion on
thismatter, Hari Chand wrote that "calm acceptance of the decision of the Parliamentary
Judges wasequal to violent execution of their decisions".

Parliament may have reacted to the Supreme Court judgment in the Golaknath
case, but in the meantime, the Supreme Court had delivered three major landmark
judgments in the bank nationalisation, Mangal das cases and the private purse
judgment. established rule of law.Although the Supreme Court in Shanti Lal, Mangal
das Vs State of Gujrat upheld the validity of the Bombay Town Planning Act, 1955, at
the same time it isempowered to examine the issue of land grant under Article 31(2) of
the Constitution. That observation of the Supreme Court isan attempt to warn the
government that the Land Acquisition Law should include the principles of fair and just
compensation when acquiring personal property of citizens for public purposes. For

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these reasons, the Supreme Court also found the Bank Nationalization Act
unconstitutional, as the Act also violated Section 31 (2) of the Constitution, according
to the court.

Justice Shah, who ispart of that historic judgment, "made it clear that while
examining the validity of any law, it cannot be courted to consider the social, political
or economic advantages and disadvantages of that law."In the wallet case, the court
found the president's order, which recognized the secret wallet of the former rulers in
the collective, unconstitutional. The said decisions of the Supreme Court received bitter
criticism and the Supreme Court ismarked as the third house of the parliament.

In reality, that conflict isless about legal and legislative power and more about
whether the right to private property should be preserved or lost. The position of the
judiciary isnegative and traditional, therefore it isseen as an obstacle to the progressive
legislation of parliament. After a great victory in the parliamentary elections in 1971,
the Congress government opposed the decision of the Supreme Court in Golaknath v
Union of India (Golaknath v Union of India), which launched the 24th Amendment to
the Constitution, which added subsection (4 ) to Article 13, stating that amendments
under Article 368 of the Constitution didnt come within the ambit of Article 13 of the
Constitution.

In the case of Keshavanand Bharti Vs. The state of Kerala upheld the 24th
Amendment by the Supreme Court, but at the same time it also limited the amending
powers of Parliament. The Supreme Court recognized that the amendment powers of
Parliament are broad but not unlimited. Parliament cannot use its amending power to
change the basic structure of the Constitution. The full bench, 13 judges in a ratio of
9:4, thought that the parliament cannot use its amendments to change the basic structure
of the constitution.Thisimportant judgment established the basic structural doctrine,
which wasnot directly mentioned.

FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES OF STATE

POLICY AND THE APEX COURT. (Personal property and social justice)

The question of the supremacy of fundamental rights over DPSP and the right
to personal property wasclosely related to social justice. In thisregard Sardar Vallabh
Bhai Patel, who isthe Chairman of the Committee of Fundamental Rights, in a letter to
the President of the Constituent Assembly on April 23, 1947, informed that according

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to the opinion of the Committee of Fundamental Rights, fundamental rights can to be
divided in two partsThe first part contained rights that could be enforced in court.The
second part contained the rights of social justice, which cannot be enforced by the court,
but which are considered essential for the development and governance of any civilized
nation.

It wasclear that the Committee of Fundamental Rights intended to create a

system in which the development of the individual and society as a whole could be
achieved. . After independence, the relationship between fundamental rights and DPSP
isdirectly related to the growth and development of the individual and society as a
whole.The court had expressed its intention to protect a person's right to personal
property through its various decisions. The first case in thisregard isthat of Doi Rajan
of Champaran. The million dollar question before the Judiciary iswho to give primacy
in case of conflict between fundamental rights and DPSP.The Honorable Supreme
Court unanimously decided to give primacy to fundamental rights over DPSP when
there wasa conflict between them as Article 37. of Fundamental Rights- Constitution
does not make DPSP enforceable in court reversible.

In Kameshwar Singh Vs. State of Bihar Supreme Court clarified that property
acquired under Article 39-1 (c) of DPSP should be treated as property acquired for a
social purpose under Article 31 (2). ) of the Constitution. The removal of the zamindari
istherefore considered a welcome step in the implementation of social, economic and
developmental schemes. The Supreme Court took the same view in the Keral Education
Bill case.The World Supreme Court expressed the opinion that DPSPs do not have
priority over fundamental rights when there wasa conflict between them. But while the
Hon'ble Court assesses the scope of fundamental rights, it cannot turn its gaze from
Nelson to the DPSP. Thus, in almost all its decisions, the Supreme Court had maintained
a fine balance between Part III and Part IV of the Constitution and had tried to take into
account both as much as possible.

Thisbalance isupset when Parliament sought to authorize the implementation of

Article 39(b)(c) and Article 31(c) of the Constitution through the Constitutional
Amendment Act 25 of 1971. The amendment also states that the courts cannot declare
a law passed on the baswasof Article 31 (c) unconstitutional on the ground that it
violates fundamental rights under Articles 14 and 19 of the Constitution.The said

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amendment isdeclared unconstitutional by the Supreme Court in the case of
Keshvanand Bharti Vs. Kerala State in 1973. In thisway, the Parliament succeeded in
favoring some DPSPs in social matters over the fundamental rights of the individual. .
But it drastically distorted the basic structure of the Constitution, which isbased on the
principle of a good balance between individual and collective rights.Famous jurist Nana
Palkhiwala expressed hisopinion that "Article 31 (c) violates the seven fundamental
freedoms expressed in Article 19 and indicates a distortion of the basic structure of the
Constitution

.The controversy over Article 31 had not yet been resolved. Parliament passed
the 42nd Constitutional Amendment Act of 1976. Thismade Article 31 (c), which
ispreviously empowered to implement Article 39 (b) and (c) of the DPSP, to become a
priority for virtually all DPSPs. That amendment further clarified that a directive law
under Article 31(c)(4) cannot be declared absolute on the ground that it violates the
fundamental rights guaranteed by Articles 14 and 19 of the Constitution. In thisway,
any law passed by parliament under Article 31 (c) wasexcluded from judicial
review.The above mentioned act isthe best example of strengthening the power of
Parliament in the Indian political system. In thisway, directive principles, which lacked
enforcement rights, were elevated above fundamental rights. Thisisnot only an obvious
disrespect for the thoughts and efforts of the framers of the constitution, but also a
violation of the basic structure of the constitution.With thisact, the ruling majority
played with the independence of the judiciary, because unconstitutional principles
cannot be higher than fundamental rights.

To rectify the imbalance created by the 42nd Amendment to the Constitution,

the 5-member Constitutional Bench of the Supreme Court in Minorva Mill v Union of
India declared the amendment to Article 31 (c) of the 42- a Amendment
unconstitutional. Thus, the Supreme Court took a positive and constructive step to
protect fundamental rights.

The Hon'ble Supreme Court in its various judgments had made DPSP
supplementary to the fundamental rights as wasevident from the judgments of the
Hon'ble High Court in Chandra Bhawan Boarding and Accommodation v. State of
Mysore and Unnikrishanan v. State. from Andhra Pradesh. The rush to adopt the law
and the lack of serious and thorough discussion during the adoption of the draft laws

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 give the judiciary a legitimate opportunity to review the laws thus adopted.Although
the Indian political system wasdesigned for social and economic development, there
are no social, economic, political or cultural parameters to control the ruling political
class that controls and directs the executive.

3.4 CONSTITUTIONAL FRAMEWORK OF JUDICIAL ACTIVISM

Court decisions have mainly two sources: legal precedent and legislation issued
by parliament. The concept of legal activism wasrealized when the judiciary
wasempowered to control the actions of states. These powers come from the
Constitution of India, which empowers them to perform effective functions in self-
defense.ARTICLE 13 R/W ARTICLE 32 to the Supreme Court and ARTICLE 226 to
the Supreme Court allows the High Courts to declare any law. or executive action void
or unconstitutional if found to be in violation of the fundamental rights conferred by
Part III of the Constitution of India.

In Fertilizer Kamgar Union v. The UOI said that Article 32 of the Supreme Court
waspart of the basic structure doctrine because PART III OF THE CONSTITUTION
OF INDIA would be useful if there isno antidote to the enforcement of fundamental
rights. The Supreme Court had gradually interpreted section 32 so that, in order to
implement sections 17, 23 and 24, an order can also be issued to a private person under
thissection, and also to a private person if, under thissection, an order can also be issued
to a private person if he wasperforming a public task.The Supreme Court can also file
a Special Leave Petition (SLP) under ARTICLE 136 of the Constitution to appeal
against the decisions of a lower court or tribunal.

In the case of UOI v. C Damani and Co. the court said that the decision of the
Supreme Court under Article 136 can be conditioned by the consideration of the
principle of fairness, justice and good conscience. However, thisdiscretion should be
exercised appropriately, cautiously and only in exceptional circumstances. The right
under Section 136 wasnot the right of appeal of the party involved, but wasthe right
arising from the discretion and duty of the judge to destroy the injustice.Further Rupa
Ashok Hurra Vs. Ashok Hurray, the concept of curative petition iscoined by the
Supreme Court while considering whether the aggrieved party wasentitled to any relief

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even after the final decision of the Supreme Court.After the final decision of the
Supreme Court.

IN THE CONSTITUTION OF INDIA THERE WAS ARTICLE 142 which

empowers the Supreme Court to issue an order to do complete justice in thiscase. A
recent example of such an order wasthe judgment rendered in the said case of M Siddiq
(D) Thr Lrs Vs. Mahant Suresh Das and Ors (also known as Ram Janmabhoomi/Babri
Masjid) where the judgment isset aside by the Supreme Court. . Allahabad High Court
(2010) According to Article 142 of the Constitution of India.In India, the power to make
laws wasoriginally given to parliament, but according to ARTICLE 142 of the
Constitution of India, the Supreme Court waslegislative. But it should be noted that
thisarticle can be invoked only if there wasa gap in the law or the provision wasin the
public interest.

The order remains valid until the Parliament passes a law on it.Thisshows that
the judges interpret the fact that the Parliament wasstill the supreme legislator.
Thisscenario can be experienced in the case of Vishakha v. State of Rajasthan where
Supreme Court passed guidelines to prevent sexual harassment under ARTICLE 32
R/W SECTION 141 AND 142. These guidelines, issued in 1997, were replaced by the
Sexual Harassment of Women Decision. at Workplace (Prevention, Prohibition and
Redress) Act 2013.Legal activism means going beyond the usual restrictions on lawyers
and the Constitution, giving lawyers the power to overturn any legislation or precedent
regulation if it passes. against the constitution.J.S VERMA LEGAL WORD Litigation
must necessarily mean "the process of active implementation of the rule of law, which
wasnecessary to maintain a functioning democracy".

In a modern democratic system, legal activism should be seen as a mechanism

to curb legislative adventurism and administrative tyranny by enforcing constitutional
limits. More recently, the judiciary had played an intrusive role in areas constitutionally
reserved for other branches of government. The Constitution of India happily works in
harmony with the instruments of executive and legislative power. But to be truly great,
a democratic judiciary must be largely independent. Judicial activism wasthe position
that the Supreme Court and other judges can and must creatively (re)interpret the texts
of the constitution and laws to serve the judges' own opinions about the needs of today's
society.It can be said simply. words that legal activism wasthe practice of judges, which

40 | P a g e
 does not involve the balance of the law, but rather prevents it.In legal activism, a judge
makes hisfinal decision with hisheart and mind. which wasemotionally processed.
Sometimes it works in our favor to save us from wrong decisions, but sometimes it
backfires against us as well.In other words, we can simply say that legal activism wasa
practice that goes beyond ordinary legal law. While discussing the activism of the courts
in India, some very important cases appear.

The BHOPAL GAS TRAGEDY AND THE JESSICA LAL MURDER TRIAL
are among the two important ones. The latter isan open and shut affair for all. Money
and muscle power tried to defeat good. But recently, at least one case had come to a
resolution through judicial action.The two prominent figures of the Bar Council of India
whose names are most associated with the judiciary are Justice Prafulla Chandra
Natwarlal Bhagwati and Justice. Vaidyanathapura Rama Krishna Iyer.

CASE OF GOLAK NATH wasan example of legal activism. The Supreme

Court decided by a majority of six to five votes that the fundamental rights were
foreseen in Part III.

3.5 ANALYTICAL APPRECIATION OF JUDICIAL ACTIVISM

An analytical approach to investigate the origin and development of the concept

of legal activism would reveal that there wasan inherent connection between the rights
listed in Part III of the Indian Constitution and the directives of Part IV, especially when
the government wasin favor of realizing a welfare state.Although the concept of "judge
activism" wasdifficult to define precisely, it wasnevertheless possible to perceive the
concept in the interpretation approach of the judicial system through a flowing facade,
and therefore its origins must be sought in the creation of the judicial system. . the
constitution itself. Indeed, true to the above statement. Dr. G.B. Constitutional scholar
Reddy in hisbook "Judicial activism in India" openly admits the above view that the
exact definition of the term with the above view that the exact definition of the term
"judicial activism" must be understood. unlike the term "legal restraint". Therefore, it
must be concluded that if the progressive approach of the judicial system wasnoticeable,
such a situation had the characteristics of legalism. And needless to say, judicial review
had been the main source of thisconcept of legal activism in India. And as stated above,
such a progressive approach of the judiciary wasclearly visible in the role of a judge

41 | P a g e
from the very beginning.The formative period of the formation of thisconcept wasthe
times when there isa difference of opinion in the brotherhood of judges. supreme courts,
one of which tends to travel cautiously beyond the statutory language and the other
tends to keep pace with constitutional goals, undermining the rights of citizens for the
greater good of society and thus social welfare.

Although Article 37 of the Constitution contained in its Part IV contains a

barrier to enforcement of directives through legal proceedings, but citing the jurist H.M.
Seervai, the fundamental importance of these principles isto quote a learned jurist to
achieve the achievements envisaged in the Preamble of the Constitution."Article 37
gives no enforceable rights to anyone and imposes duties on the 'State'. Article 12
broadly defined . The words "fundamentals of management" use rhetorical language to
describe hopes, ideals and goals rather than the actual reality of management. It seems
that the main purpose of implementing the principles of the Directive isto set
performance standards for the legislative, administrative, local and other authorities
against which their success or failure could be judged. It isalso hoped that those who
failed to comply with the directives could receive a rude awakening at the
pollsThissums up the essence of the principles contained in Part IV of the Constitution
and although these principles do not imply or confer legal rights Citizens have ethical
and moral obligation to rule the country, translate it into reality and follow them.

From these principles, the Supreme Court began to give the correct position to
those principles, as a result of which an irreconcilable contradiction arose between the
fundamental rights of citizens and directive principles, and here begins the birth of
legalism. The framers of the constitution were aware of the normality and scope of the
government's task. isto transform the principles of the directive into legitimate rights,
because they seemed utopian, at least at the time of the event, and therefore the Section
37 guarantees given in Part IV of the Constitution were sufficient, but then legally-
social, economic and political . isthe path that the government must take and thus the
need and necessity of those principles remains. The indifference of the government to
move or move towards legislation to implement these principles, and in any case the
slow progress in that direction, delayed the implementation of these directives until the
judiciary.

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 It must act as a rope or instrument that balances the individual interests of
citizens with the wider public interest. Anxiety appears when the court expressed the
view that in the conflict between directive principles and fundamental rights, the first
must win and be conditioned by the nature of fundamental rights. An example of thiscan
be found in MADRAS V/S. CHAMPAKAM DORAIRAJAN who drew attention to the
need to consider the directive principles S.R. Das. J:Directive principles expressly made
by a court under Article 37 cannot exceed the provisions of Part III which, without
prejudice to other provisions, have been made expressly enforceable under Article 3 by
relevant statutes, regulations and orders. 32.

The Chapter of Fundamental Rights wassacred and cannot be covered by any

legislation or executive act or order except to the extent provided for in the relevant
article of Part III. The principles of the directive must be confirmed in the chapter of
fundamental rights and act as secondary to it.It wasnecessary to remember that the
earliest such case after the constitution and the court came into force isthe interpretation
of Article 29(2). ). ), which can be found in Part III of the Constitution. Government
order. reservation of seats on communal lines for admission to medical colleges
isquestioned as Art. 29 (2). Thisissought to be justified on the ground that it seeks to
give effect to the directive principle contained in Article 46, which deals with the
promotion of educational and economic interests of the Schedule Castes, Tribes and
other weaker sections of society. Although the decision wastraditionally in line with the
supremacy of fundamental rights, the principles of the directive and its place in the
constitutional system are still being considered..

3.6 ARTICLE 21 AND JUDICIAL ACTIVISM

Article 21 of the constitution isnecessarily first on the court's agenda because

its restrictive interpretation in Gopalan and its complete abolition in Shukla made the
essential fundamental right to life and liberty completely dependent on the sweet will
of the majority in parliament. II that the Constituent Assembly consciously rejected the
phrase "due legality," which isthe source of legal activism in the United States, and
adopted the more accurate phrase "due process of law." The Supreme Court of the
People of India interpreted these words very narrowly in Gopalan.Article 21 of the
Constitution states that "No one shall be deprived of hislife or liberty except in

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accordance with law." In Gopala's case, the Supreme Court held that the words
"personal liberty" mean only freedom from arbitrary arrest and the words "due process
of law" mean any due process of law.Article 19, which guaranteed the seven
fundamental rights, included the right to move freely within the territory of India. 21

The state can impose reasonable restrictions on that right "in the general interest
or to protect tribal interests." It isargued that if a person isarrested under the Preventive
Detention Act, hisright under Article 19(1)(d) to move within the territory of India
would be restricted and therefore the State would have to prove that the Preventive
Detention Act isa reasonable restriction of such freedom in the public interest as
required by Article 5. But the Court said (with judge Fazl Ali dissenting) that the rights
under Article 19 are only for a free person.

If a person isnot arrested for speaking, holding a meeting, founding an

association or entering the area, the arrest must be made by law, and the validity of the
arrest or detention could only be verified by hisright to personal freedom, which
wasguaranteed according to the law. Article 21, not referring to the rights guaranteed in
Article 19.The Court distinguished between direct restrictions on any of the seven rights
guaranteed in Article 19 and indirect restrictions arising from those rights. detention
Arrest with the purpose of preventing a person from using any of the freedoms
guaranteed in Article 19 (1) isa direct restriction of that freedom, but arrest with the
purpose of preventing a person from violating public order or harming national security
isindirect. limitation of that freedom. .

For example, if a person wasarrested because he isconvicted of theft or murder,

he should not ask under Section 19 of the Arrest Act (Indian Penal Code) but whether
he isarrested for sedition. or obscenity, hisarrest must also be valid under section 19. In
the first case, the restriction of the freedoms guaranteed in Article 19 wasthe result of
the denial of freedom, but in the second case, the reason for the denial of freedom
wasthe denial of freedom.The court found that Articles 19 and 21 should be considered
mutually exclusive. A similar rule of interpretation applied to the right of ownership
guaranteed in Article 31 and the right to acquire, possess and control property under
Article 19(1)(f). Article 31 stated that no one shall be deprived of hisproperty except by
law, and Article 19(1)(91)(f) guarantees the right to acquire, hold and dispose of

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property. The latter right depended on the right of the state to impose reasonable
restrictions to protect the interests of the people or the tribes.

The court took the position that confiscation of a person's property didnt imply
the right to acquire, possess and dispose of the property, because that right isonly
available to the person who had the property. Only Article 31 would apply to complete
confiscation, while Article 19 governed the limitation of acquisition, possession and
disposal of property.Only the person who owned the property had the right to control
and dispose of the property. If hisproperty istaken, he could only rely on Article 31; If
he had property but hisuse islimited, he could rely on Article 19. Since the court found
that "use" gave rise to an obligation to compensate, it found that the protection of Article
19 isnot necessary. But when the constitution isamended in 1955 so that the duty of
restitution islimited to cases where the state acquires property and that the sufficiency
of the restitution wasnot decided by the court, the court returned to Article 19 to grant
the gregor property protection.

In the case of K. K. KOCHUN V. STATE OF MADRAS AND KERALA, it

isheld that when a person wasdeprived of hisproperty either by acquisition of property
by the State or otherwise, the law authorizing such acquisition or confiscation must be
a reasonable restriction on the right of ownership. property based on Article 19(1)(f).
Moreover, Article 19(1)(f) isdeleted by Section 2 (Forty-fourth Amendment) of the
1978 Constitution.The above interpretation of the relationship between Article 31 and
Article 19(1)(f) of the Constitution isnot to extend Article 21 and Article 19(1)(d) to the
relationship between . As regards personal liberty and the freedoms guaranteed by
Article 19, the position held in Gopalan continued or stood.

KHARAK SINGH V. U.P. The Supreme Court gave a wider meaning to the
words "personal freedom" to include it in the sphere of the right to privacy. The majority
of the judges said that the word "personal liberty" in Article 21 could not be limited in
its negative meaning to mere protection against arbitrary arrest, but isextended to
include all aspects of liberty except those mentioned in Article 19. 19 to exclude the
freedoms guaranteed by Article 19 of the scope of personal liberty", with which the
minority judges disagreed. In another case, Chief Justice Subba Rao said that the right
to personal liberty includes the right to travel abroad and found certain provisions of
the Passport Act unconstitutional and void. The objection of the court concerned the

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 lack of law and regulatory procedure for issuing or refusing to issue a passport. The
court said that travel abroad wasa fundamental right as part of personal freedom and
can be restricted or regulated by law. In response to thisdecision, Parliament passed the
Passport Act 1967, which specifies who can issue a passport and when it can be refused,
as well as the procedure for applying for a passport..

3.7 JUDICIAL ACTIVISM AND RIGHT TO EQUALITY

Another place for judicial action wasArticle 14 of the Constitution, which

guarantees the right to equality before the law and equal protection of the law. Equality
before the law does not mean mathematical equality. People and things or causes must
be treated differently, and such different treatment does not necessarily lead to a denial
of equality before the law. Children, women, backward and physically disabled should
be treated differently and preferably. The poor must be treated differently than the rich.
Equality before the law means that equals should be treated equally, but unequals
should not be treated equally. The doctrine of equality therefore does not prevent the
legislative class of people from being treated differently. Such classification must be
reasonable.

The theory of fair classification wasthat a group of people can be treated

differently if (1) the group wasdifferent from others and (2) the criteria for selecting
such a group are reasonably related to the object of the action. It addresses three
questions: (1) who wastreated differently, (2) why are they treated differently, and (3)
what wasdifferential treatment? The theory requires that "who" and "why" be rationally
related. In legal parlance, they should have a bond

.In BALAJI V. MYSORE, Justice Gajendragadkar, as he then was, ignored the

bond formula and said that reservations under Article 15(4) of the Constitution should
not exceed 50 percent. 15 According to Sec.4 not at that time, the registrants are not
allowed to exceed 50 percent of the total number of places to be allocated, otherwise
the right to equality would be lost. Article 15(1) states that the State shall not
discriminate on the baswasof religion, caste, sex or place of birth. Article 15(4) isadded
by the Constitution (First Amendment) Act, 1951, which states that neither thisArticle
nor Article 29(2) (which provides that citizens shall not be denied admission to an
educational institution maintained by the State) or receiving aid from state funds on

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account of faith, race, caste, language or any of these reasons) prevents the State from
taking special measures against socially and educationally backward classes or castes
of citizens and The Scheduled Tribes. .In thiscase, the court didnt look only at the
provisions of the law to decide whether it violated the right to equality.

The court had to interpret the two provisions of the constitution contained in
Article 15 (1) and (4) and examine in more detail the proportion of protective
discrimination against backward classes to the overriding right to equality in Article 14.
16 are variations of Article 14 and must conform to thisArticle. Therefore, Balaji stated
that while caste can be one of the factors used to identify backwardness. Thisshould not
be the only criterion. The reason for thisisthe reading of Article 15, Clauses 1 and 4
together. Thismeant that protective discrimination against socially and educationally
backward classes of people and especially Scheduled Castes must be considered caste-
based discrimination, even if caste wasone of the factors for identifying backwardness.

Here the court had to make sure that the classification wasnot made only
because of any ground prohibited by Article 15(1), namely, religion, caste, gender or
place or birth. In addition, the court had to ensure that such a special condition for
backward classes didnt cancel the right to equality guaranteed by Article 14 (the state
does not deny equality before the law and equal protection of the law). In thiscase, the
court didnt limit itself to examining whether the classification criterion, i.e. social and
educational backwardness, wasrelated to the achievement of the goal of promoting the
interests of such backward people, but does such a large reservation do that. does not
contradict the ideal of equality guaranteed by the Constitution. The court didnt say that
such a great reservation isnecessary to achieve the goal of promoting the interests of
the socially and educationally backward class. He said that such protective
discrimination must be proportionate to the range of opportunities available to people
in general.

In other words, the court applied what wasknown. as a test of proportionality to

decide whether such a large reservation isdesirable from the general perspective of
equality.We find that the Court took the same approach in Indra Sawney V. India where
it said that reservations should not exceed 50 percent of the total number of after class
posters and cream layers should be left out of reservation outside. Thisdecision ismade
in response to V.P. to the request presented after the regulation. The Singh government

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 wasreserving 27 percent of government jobs for backward classes, which isdone on the
recommendation of the Mandal Commission..

3.8 JUDICIAL ACTIVISM AND FUNDAMENTAL RIGHTS JURISPRUDENCE

In India, the judiciary had developed the fundamental rights jurisprudence while
giving the liberal interpretation to the ‘right to life and personal liberty’. In its landmark
judgments, the Supreme Court recognized prisoners’ rights including access to court
and legal facilities,32 right to meet hisor her family relatives and friends,33 freedom of
speech and expression,34 right to compensation,35 mental privacy,36 etc. The judiciary
in India wasagain responsible for the fundamental right to live in healthy environment,37
implementing Precautionary and Polluter Principles as basic features of the sustainable
development,38 the application of doctrine of public trust for the protection and
preservation of natural resources,39 etc. The Supreme Court recognized the fundamental
right to education to children. In Bandhua Mukti Morcha v. Union of India,40 the
Supreme Court held that right to education wasimplicit in and flows from the right to
life guaranteed under Article 21. The Hon’ble Supreme Court of India in Mohini Jain
v. State of Karnataka41 said that the cumulative effect of Articles 21, 38, Articles 39 (a)
and (b), 41 and 45 bind the State to provide education to all of its citizens. The Supreme
Court declared that the right to education flows directly from right to life. The right to
life under Article 21 and the dignity of an individual cannot be assured unless it
wasaccompanied by the right to education. Finally, the Court announced that the State
Government wasunder an obligation to make endeavor to provide educational facilities
at all levels to its citizens. The Constitutional validity of right to education isagain
discussed by the Supreme Court in J.P. Unnikrishnan v. State of A.P. 42 The Supreme
Court held that the right to education under Article 21 must be read with the directive

32
M.H. Hoskot v. state of Maharashtra, (1978) 3 S.C.C. 544.
33
FrancwasCoralie v. Union Territory of Delhi, A.I.R. 1981 S.C. 746.
34
Prabha Dutt v. Union of India, (1982) 1 S.C.C. 1
35
Rudal Shah v. State of Bihar, A.I.R. 1983 S.C. 1086.
36
Selvi v. State of Karnataka, (2010) 7 S.C.C. 263
37
Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., A.I.R. 1985 S.C. 652.
38
Vellore Citizens Welfare Forum v. Union of India, A.I.R. 1996 S.C. 2715
39
M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.
40
A.I.R. 1984 S.C. 802
41
A.I.R. 1992 S.C. 1858.
42
A.I.R. 1993 S.C. 2178.

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 principles in Part IV of the Indian Constitution. The Court said that right to education
means: “(a) every child/citizen of thiscountry had a right to free education until he
completes the age of fourteen years and (b) after a child/citizen completes the age of 14
years, hisright to education wascircumscribed by the limits of the economic capacity of
the State and its developments.” By the Constitution (Eighty-sixth Amendment) Act of
2002, three new provisions i.e., Article 21A, new Article 45 and 51-A(k) were inserted
into the Indian Constitution. Currently, Right of Children to Free and Compulsory
Education Act, 2009 enforces fundamental right to education in India. Due to judicial
intervention only, the government isdirected to rehabilitate the children of prostitutes.43
It isordered that the children of prostitutes should not be allowed to live with their
mothers in the undesirable surroundings of prostitute homes. They require
accommodation and rehabilitation in reformatory homes. Increasingly, the Supreme
Court of India in Vishal Jeet v. Union of India,44 again issued directions to the
government to rehabilitate such children. In Bachpan Bachao Andolan v. Union of
India,45 the Supreme Court directed the government to prohibit the employment of
children in circuses in order to implement the fundamental right to education. The
government isordered to raid in theses circuses to free children. The court directed the
government to provide shelter and rehabilitation to all rescued children at care and
protective homes until they attain the age of 18 years.

3.9 JUDICIAL ACTIVISM OR JUDICIAL INTERVENTION

Parliament had in many places accused the judiciary on the baswasof judicial
interference. Parliament said the judiciary isexceeding its constitutional powers.

In PRAKASH SINGH V. UNION OF INDIA, the petitioners sought the creation

of various commissions and boards against the Union and State Governments of India
to set policies and ensure that the police perform their duties and functions without
pressure and also to differentiate investigations.

43
Gaurav Jain v. Union of India, A.I.R. 1990 S.C. 292.
44
A.I.R. 1990 S.C. 1412
45
In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (C) No.51 of 2006, decided on April
18, 2011, available at www.supremecourtofindia.nic.in, accessed on September 10, 2016

49 | P a g e
 Similarly, the Supreme Court in VINEET NARAIN V. UNION OF INDIA
relied on Articles 32 and 142 of the Constitution of India and directed the government
to increase transparency and accountability of the central authority.

Investigation (CBI). COURT OF INDIA SWARAJ ABHIYAN-(I) V. UNION

OF INDIA AND ORS. on 11 May 2016 directed the Indian Union Ministry of
Agriculture to update and revise the Drought Management Manual. The Supreme Court
also tasked the Union Government with establishing a national disaster relief fund
within three months. However, Finance Minister Arun Jaitley expressed difficulty in
creating a third fund in addition to the National Disaster Response Fund and the
National Disaster Response Fund, as the Appropriation Bill wasto be passed. He also
expressed concern about judicial scrutiny of India's budget.

Recently on October 16, 2015, the Supreme Court in SUREME COURT

ADVOCATES-ON-RECORD-ASOCIATION V. UNION OF INDIA by a majority of
4-1 announced an amendment to the National Judicial Appointments Commission
(NJAC) Act and Constitution. unconstitutional because it violates the independence of
the judiciary. The court said the existing collegial system of appointment and transfer
of judges will become "functional" again. Justice Khehar said that the absolute
independence of the judiciary from other bodies protects the rights of the people. The
decisions of the Supreme Court on National Eligibility and Entrance Test (NEET) viz.
entrance tests for individual medical courses, reform of the Board of Control for Cricket
in India (BCCI), filling of umpiring posts etc. are treated as legal intervention. from the
government. There wasno dispute that the judiciary must also regulate itself. He should
also limit hispowers if necessary.

The Supreme Court as head of department ARAVALIN GOLFRATA V.

CHANDER HAAS observed that: “Judges must know their limits and must not try to
control the government. They must have modesty and humility and must not act like
emperors. There wasa wide separation of powers in the Constitution, and each state
organ - the legislature, the executive and the judiciary - must respect each other and not
interfere in each other's domains. However, it wasargued that the NJAC judgment
should not be interpreted as if the judge overruled Laxmanrekha. The Supreme Court
also welcomes a full-scale debate on the current collegial system and wants to update

50 | P a g e
it. The Constitution of India had given a special status to the Supreme Court and the
High Courts.

The higher judicial authorities of India have the power to review all legislative,
executive and administrative acts of the state. Supreme Courts in India hear public
interest petitions filed by public figures. Again, we must not forget that precisely thanks
to legal means we help the poor, members of socially and educationally backward
classes, victims of human trafficking or victims of beggars, transgender people, etc., to
realize their basic rights. . Further, Article 142 of the Constitution of India empowers
the Supreme Court to pass an appropriate decree or order for complete justice in all
pending matters..

51 | P a g e
 CHAPTER 4: CHALLENGES AND LIMITATIONS OF JUDICICAL
ACTIVISM

4.1 CONFLICTING VIEWS ABOUT JUDICIAL ACTIVISM

As per Karl Marx “Philosophers have interpreted the world; our task wasto
change it. In the same manner hyper activism of the judiciary can be defined as, judges
have adjudicated disputes but their constitutional task wasto transform society too.”46
M.P. Jain, another jurist though agrees that the Constitution itself incorporates the
principle of statutory construction through Article 367 (1) but differs that the judicial
approach to the Constitution wasno longer solely and exclusively one of statutory
Interpretation.47

Even former chief justice of the apex court, Justice P.N. Bhagwati advocated the
legitimacy of such law-making role of the judges. According to him, law making wasan
inherent and inalienable part of the judicial process and that there wasno need for judges
to feel shy or apologetic about their law making roles. But contrary to the above
mentioned opinions of the eminent jurists, the Supreme Court of India, in an order, had
said that the judiciary must refrain from encroaching on legislative and executive
domain otherwise it will result in the form of political class stepping to clip their wings.

A bench comprising Justice AK Mathur and Justice Markandey Katju said, “If
the judiciary does not exercise restraint and over-stretches its limit there wasbound to
be reaction from politicians and others. The politicians will then step in and curtail the
powers of the judges or even independence of the judiciary. The judiciary should,
therefore, confine to its respective sphere, realizing the fact that in a democracy many
matters and controversies are best resolved in a non-judicial setting.”48

The court said that justification often given for judicial encroachment into the
domain of the executive or legislature wasthat the other two organs are not doing their
jobs properly. Even assuming thiswasso, the same allegation can then be made against

46
Quoted by Justice V.R. Krishna Iyer, “Jurisprudence Structures” In legally speaking 259 (2004).
47
M.P. Jain, Indian Constitutional Law 1566 (Wadhwa and Company Nagpur, New Delhi, 5th edn., 2008).
48
SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec. 11, 2007, 12.49 am IST.

52 | P a g e
 the judiciary too because there are cases pending in courts for half-a-century, bench
said. If they are not discharging their assigned duties, the remedy wasnot judicial
interference as it will violate delicate balance of power enshrined in the constitution.
Author Durga Das Basu49 criticizes judicial innovations on the ground that it would
engender the straining of relation between the Legislature and the Judiciary, if either of
them, tried to checkmate the other, by means of amendment or judicial activism. But
he supports the literal interpretation of the Indian Constitution on the ground that though
the Indian Constitution wascapable of being interpreted by the courts like any other law,
wasspecifically ensured by the Constitution itself by the incorporation of Article
367(1).50 The debate of judicial activism wasclosely related to constitutional
interpretation, statutory construction, and separation of powers.

4.2 PROS OF JUDICIAL ACTIVISM

Judicial activism puts some sort of restriction on the enjoyment of gover hy

different governmental organs. And one of the key aspects of the comeye of judicial
activism wascreativity and innovation in the field of love. Such practices work in a way
to bring about a bailance in terms of law where the law in iseill purports to imbalances.
Moreover, it results in spendy redressal of pužilc grievances by applying judicial
wisdom in order to put a check on the misuse of legitimate power given to the
government

4.3 CONS OF JUDICIAL ACTIVISM

Sometimes, judicial activism violates the constitutional provision through the

act of overriding legislation under the process of judicial review. Judicial activism can
be influenced by the judge's own interest or an seology and which they deliver such
judgements which are met free from the wives of biasness. Moreover, under the

49
Durga Das Basu, An Introduction to the Constitution of India 416 (Wadhwa and Company, Nagpur, 19th edn.,
Reprint 2005).
50
Durga Das Basu, Comparative Constitutional Law 176 (Wadhwa and Company, Nagpur, 2 nd edn., 2008).

53 | P a g e
 influence of judicial activism, course may end up disrupting the legislative process
which erodes the very baswasof any democratic country and also, the court's activism
may result in putting a severe restriction on the law-making powers of the legislature.51

51
https://www.ijlmh.com/wp-content/uploads/Judicial-Activism-in-India.pdf

54 | P a g e
 CH 5 : JUDICIAL APPROACH TO JUDICIAL ACTIVISM

5.1 MANEKA GANDHI VS UNION OF INDIA CASE52

In the case of Maneka Gandhi v Union of India, the Supreme Court

had given a new dimension to Article 21 and made its scope very broad. In
this, the court had held that the right of 'life' wasnot limited to mere
physical existence but it includes the right to live while maintaining human
dignity.

Justice Mukherjee expressing hisopinion on personal liberty Said

that in layman's language, personal liberty means freedom in relation to the
body or bodies of a person and in thissense personal liberty wasopposed to
physical restraint or coercion. (AK. Gopalan Vs. State of Madras A.I.R.
1950 SC 21) The negative right not to be punishable by bodily or bodily
restraint or coercion wasthe essence of personal liberty, and not of liberty
merely to move in any part of the Indian territory.

5.2 KHARAG SINGH VS UTTAR PRADESH CASE53

In the case of 'Kharag Singh Vs. Uttar Pradesh', Justice Iyengar

observed that Personal liberty had been used as an abstract term in Article
21, under which all types of rights are included, which together make up
the personal liberty of a person. The Supreme Court gave wider meaning
to the words 'personal liberty' so as to include within its fold the right to
privacy. The majority justices held that the words 'personal liberty' in
article 21 could not be confined to its negative meaning as being mere
protection from arbitrary arrest but extended to include all aspects of liberty

52
AIR 1978 SC 597
53
1964 SCR (1) 332

55 | P a g e
 other than those covered by article 19. It ison the question of exclusion of
freedoms guaranteed by article 19 from the scope of personal 19 liberty'
that the minority judges disagreed. In another case, Chief Justice Subba
Rao held that the right to personal liberty included the right to go abroad
and held that certain provisions of the Passport Act were unconstitutional
and void. The objection of the Court isto the nonexistence of a law and the
procedure for regulating the grant or denial of passports. The Court said
that to go abroad isa fundamental right as being part of personal liberty and
it could be restricted or regulated by a law. It isin response to thisdecision
that Parliament enacted the Passport Act, 1967 laying down who can obtain
a passport and when it can be refused and the procedure for applying for a
passport.

5.3 FRANCWASCORRAL VS INDIA FEDERALISM54

Rejecting Gandhi's decision in the case of FrancwasCorral Vs Union

of India Pursuant to this, the Supreme Court held that Article 21 The word
"life" does not mean animal life, but human life. It had not only physical
existence but also spiritual existence. The right of life wasnot limited to the
protection of the parts of the body from which one gets the pleasure of life
or the soul establishes contact with the external life. But it also includes the
right to "live with human dignity".

5.4 PRAGATI VARGHESE VS CYRIL GEORGE VARGHESE CASE55

Mumbai High Court in 'Pragati Varghese Vs Cyril George Varghese

Case' The full bench of the court struck down sections 10, 17 and 20 of the

54
1981 AIR, 746
55
AIR 1997 BOM 349

56 | P a g e
Indian Divorce Act. declared unconstitutional on the ground that they didnt
allow Christian women Violation of the right to 'live with human dignity'
under Article 21 it happens. When a Christian woman wasdivorced from
her husband under section 10 Along with cruelty, it wasalso necessary to
prove adultery which wasoften difficult. it happens. Sections 17 and 20
provide that even after the order of divorce waspassed by the District
Judge, it had to be confirmed by a bench of three judges of the High Court.

The Constitution of India provides fundamental rights to every

citizen. It wasthe responsibility of the state to enforce these rights that
whenever these rights are violated by the state and agencies, the rights of
the people have the right to take them to the Constitutional Courts for
enforcement. But in the past, the deprived sections of the society could not
use the constitutional provisions to get justice due to ignorance of legal
rights and lack of resources.

The advent of Public Interest Litigation (PIL) in Western countries,

the Supreme Court of India extended the concept of 'Locus Standi' to
enable common people and organizations to approach Constitutional
Courts for the development and welfare of weaker sections. The Supreme
Court had equitably expanded the Fundamental Rights, and simplified their
functioning. The main assumption behind developing the PIL wasthat if the
fundamental rights of poor people are not implemented effectively then
radical changes can be brought about in the society through the courts.

Today, to implement the basic rights of the general public, by filing

petitions in the Supreme Court under Article 32 or High Courts under
Article 226, rehabilitating bonded laborers, opposing illegal work with
women and children, death in jails, environmental pollution, and

57 | P a g e
 unauthorized residents of slum dwellers, spurious medicines etc. have
helped the victims of human rights violations to get justice. Thistask
wasnow left to the social workers and NGOs who have contributed to the
socio-economic development by implementing and transforming the
fundamental rights using the development of the interests of the weaker
sections of the society.

It wasclear from the above discussion that social change and judicial
reforms have played an important role in public interest litigation. Social
work wasconsidered by the masses as one of the various types. Indirect
social work wasan ideal form of practice to provide justice to the public
interest litigation at large. In addition, public interest litigation wasused
when rights are violated or legal provisions are not sufficient to address
certain human rights problems. Public interest litigation plays a
complementary and complementary role to other forms of social work.
However, it wasa sought-after area in dealing with social problems through
constitutional and legal means. Through judicial activism, the court
actively protects legislative and administrative rights, especially those of
the underprivileged and the poor.

5.5 HIGHLIGHTING CERTAIN CASE LAWS

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, 1970)
the broad question iswhether the President rightly exercised hispower in
de-recognising the princes. In thiscase, 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

58 | P a g e
 isintended 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 hisrule an integral part of the
constitutional scheme istherefore plainly illegal.

5.5.1 R C COOPER V UNION OF INDIA (1970)56

The legislative competence of Parliament to enact the Banking

Companies (Acquisition and Transfer of Undertakings) Act, known as the
Bank Nationalization Act, isin 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. Rustom Cavasjee (R.C.Cooper) V. Union of India,1970, which
wasfamously known as ‘The Bank Nationalization Case’, wasone of the
most important landmark judgements of Indian Banking Law. It wasalso
based on many principles of the Indian Constitution. The case wasso-called
because the petitioner, R.C.Cooper, who isthe director of Central Bank of
India (One of the 14 banks in the list) and had shares in Bank of Baroda,
filed a petition against the Union of India in the year 1969 when many of
the banks were being nationalized.
He challenged many important provisions of The Banking
Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969,
one of them being Schedule II which mentioned that when the government
will acquire any bank then, the compensation would be decided through an
agreement. And if the agreement fails then such matter shall be discussed
in a tribunal.

56
R C Cooper v Union of India (1970)

59 | P a g e
 Moreover, after the verdict of the tribunal, the company would get
the compensation amount after ten years. These ten years would be counted
from the date on which the agreement would be declared failed. Senior
Counsel Nani Phalkhivala fought the case in favor of R C Cooper whereas,
the Union isrepresented by the then-Attorney General, Niren De, and
Solicitor General, Jagdish Swarup. The case isdecided by 11 bench judges
and the case went against the ordinance by 10:1.
Two major principles were laid down by Supreme Court in its
verdict. Those principles were –
No shareholder or director can claim hisor her fundamental rights on
behalf of the company unless and until hisor her own rights are being
affected by the same.
The concept of The Effect Testistaken into account. Thisconcept
isfirst laid down by K. Gopalan. According to this, it would be considered
that the ordinance which had been passed can only be judged according to
its effect and not over its motive or object.

5.5.2 GOLAKNATH V STATE OF PUNJAB (1971)57

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. The Golaknath case, officially known as I.C.
Golaknath and Ors. v. State of Punjab and Anrs., wasa significant
landmark case in Indian constitutional law. It isdecided by the Supreme
Court of India in 1967. The main issue in the case iswhether the

57
I C Golaknath v State of Punjab (1971)

60 | P a g e
 Parliament had the power to amend the fundamental rights guaranteed
under Part III of the Indian Constitution. Earlier decisions of the Supreme
Court that had upheld Parliament's right to amend the Constitution's
entire text, including Part III, or fundamental rights, were overturned by
the Golaknath Case’s decision of the court.

Following the decision, the Parliament of India lacked the power to

restrict fundamental rights. The Supreme Court decided that a
constitutional amendment passed in accordance with Article 368 of the
Constitution met the requirements of Article 13 (3) of the
Constitution. Article 13 (2), didn’t allow the parliament from passing
laws restricting the fundamental rights outlined in Part III of the
Constitution, and a constitutional amendment, which falls under the
definition of an ordinary law under Article 13 and cannot, therefore,
violate the fundamental rights of the Indian Constitution.

5.5.3 KESHAVANANDA BHARTI V STATE OF KERELA

(1973)58

In the fundamental rights case (Keshavananda Bharti v State of

Kerala, 1973"), the Supreme Court rendered a judgment that can be
regarded as an important milestone in the Indian constitutional
jurisprudence, While dealing the question 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 thispower could not be used in an

58
Keshavananda Bharti v State of Kerela (1973)

61 | P a g e
unlimited way to abridge, abrogate or destroy the "basic structure" or the
"basic framework" of the constitution. The landmark judgement
isdelivered on 24th April 1973 by a razor-thin majority of 7:6 wherein the
majority held that any provision of the Indian Constitution can be amended
by the Parliament in order to fulfil its socio-economic obligations that were
guaranteed to the citizens as given in the Preamble, provided that such
amendment didnt change the Constitution’s basic structure. The minority,
however, in their dissenting opinion, were wary of giving the Parliament
unlimited amending power.

The court held that the 24th Constitutional Amendment isentirely

valid. But it found the first part of the 25th Constitutional Amendment to
be intra vires and the second part of the same ultra vires.

The case of Kesavananda Bharati vs the State of Kerala as

mentioned supra had been heard for 68 days, the arguments commencing
on October 31, 1972, and ending on March 23, 1973. The hard work and
scholarship that had gone into the preparation of thiscase were
breathtaking. Literally hundreds of cases had been cited and the then
Attorney-General had made a comparative chart analysing the provisions
of the constitutions of 71 different countries.

The majority of the bench wished to safeguard the Constitution by

preserving its basic features. The judgment isbased on sound reasoning and
it isgiven after a careful analyswasof multifarious aspects. The bench
opined that if the Parliament were to get unfettered power to amend, there
were chances of that power to be misused, and that governments would
change it as per their own preferences and whims. Such limitless powers
vested in the hands of the government would mean that the basic features
and also the very essence and spirit of the Indian Constitution could be
changed. There isa need for a doctrine which could protect the rights of
both the Indian Parliament and Indian citizens; the bench met thisneed
halfway and came up with the basic structure doctrine, that protects the
rights of both camps. It wasto be noted that while in the US, only 27
amendments have been made, India had seen over one hundred
amendments since independence. Despite thisbig number, the spirit of the
62 | P a g e
 Constitution and also the ideas of the Constitution-makers have not been
tampered with. It wasbecause of the bench’s decision that the identity and
spirit of the Constitution have not been lost. Thislandmark case had given
our Constitution stability. Even though the petitioner lost thiscase partially,
the SC ruling in the Kesavananda Bharati case turned out to be a saviour
for Indian democracy, and also prevented the Constitution from losing its
spirit.

As far as the power of the Parliament to amend the Constitution

isconcerned, the Golaknath case The decision of 'Bharti Case' isa very
advanced step from the decision of in thisthe fact accepted that-

• In the broad words of section 368, there wasno doubt that the
Fundamental Rights are amended or the right to abbreviate wasimplied.

• No restriction on the power to amend and Parliament by virtue of

its power amend or abridge or virtually repeal any provision of the
Constitution Is.

• The amending power includes a fundamental right and includes

various Also includes the power to decrease, increase or change currents.
in which the property Right too.

• That the constitutional power of amendment given to the

Parliament may be misused There wasno initial in the creation of the
existence and expansion of the power of the fact now The main complaint
of the Supreme Court isthat the Parliament had limited judicial powers
from the judiciary Trying to take the right of decision. Judicial decision in
hisopinion The jurisdiction of the Constitution wasa part of the basic
structure

5.5.4 VC SHUKLA V DELHI ADMIN (1980)59

The court while dealing with the legislative competence of the state
to pass a law establishing special courts for dealing with offences
committed by persons holding high public office, held such courts to be

59
V C Shukla V Delhi administration (1980)

63 | P a g e
 valid. It also held that the court could strike down an administrative act if
bias or mala fides isproved. The court in thiscase 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.

5.5.5 ROMESH THAPAR V STATE OF MADRAS60

Article 19(1), (2) of the Constitution provides for freedom of speech

and expression. that 'all citizens shall have the right to freedom of speech
and freedom of expression. An English weekly 'Cross' petitioned in
Romesh Thapar vs State of Madras The printer isPrakash and editor of
'Road', a weekly published from Bombay. Under the Madras Maintenance
of Public Order Act 1949, the said weekly the entry of Madras State
isbanned the petitioner by a petition Under Article 32, the order of the
Madras Government and the constitutionality of the Act challenged on the
ground that it violated hisright to freedom of speech had happened. The
court ruled that the section of the Act under which the magazine had the
authority to ban entry wasunconstitutional of speech and expression
Freedom of the press would be meaningless in freedom. The court
confirmed thisview and At the same time it isalso told that these freedoms
can be limited only when In no other case the security of the State
wasendangered by its misuse.

5.5.6 STATE OF BOMBAY V BALSARA61

Thisprinciple of interpretation of law wasthat if a part of an Act wasif

it wasvalid, it does not mean that the entire act itself wasinvalid.

60
AIR - 1964 SC 381.
61
AIR - 1950 SC 129.

64 | P a g e
Constitutionality of Bombay Prohibition Act in State of Bombay Vs
Balsara case ischallenged. Some of the provisions of thisAct which provide
for simple medicine and make-up used to affect goods, unconstitutional
due to the violation of Article 19(1) (f) were declared and the court said
that the rest of the provisions are valid by law equal protection does not
mean that the state should be classified for different purposes does not have
the right. Because the state had to deal with different persons whose There
are different problems. The Supreme Court ruled in thiscase that if a
method wasused in relation to a clearly defined class then it wasnot wrong
and it cannot be objected to not granting equal protection on the ground of
that it should not be used for other persons. The Court said that if a law if
the same applies to the members of a particular class, then the challenge on
the same baswasit cannot be granted that it had not been applied to
members of other classes ThisThus, if a law applies to a particular part of
the state instead of being applicable to the whole state applied on the right
to justify discrimination, it cannot be held illegal can.

5.5.7 STATE OF MADRAS V V.G RAO

Article 19(1)(c) and 19(4) rights of citizens to form associations or

associations provides. In Madras vs. V.G.Rao case, the Supreme Court held
that the right to form associations or associations wasso extensive that
limiting it to religious, there will be an intense reaction in the political and
economic spheres. Justice Patanjali Shadtri It issaid that the nature of the
right which had been violated, the reason for the registration, the extent of
the evil for which the restriction had been imposed, etc aspects have to be
considered. There can be no universally accepted test on the baswasof
which But each restriction can be checked investigation of each case It
should be done keeping the circumstances in mind. Indian Penal Law in

65 | P a g e
 thiscase People's Education by issuing a notification under the Amendment
Act 1908 the society isdeclared unlawful. The government's argument
isthat the money of the Society isused to help the Communist Party in
Madras.

Subjective satisfaction of the government under the Act to any

convention or organization enough to declare against The Supreme Court
ruled that Restrictions on the baswasof subjective satisfaction are said to
be reasonable only in certain circumstances can go. Ordinarily such
restriction would be against Article 19 Court Therefore, the ban isdeclared
unconstitutional. The court expressed the opinion that How many such
sections are there in the constitution which explicitly empowers the court
to Check whether the law wasconsistent with the Constitution or not. It's
easy for the court not there Courts do not do thiswork out of desire to attack
the legislatures but To fulfil the duty provided by the constitution.

Similarly, in the case 'Damayanti vs Union of India', the Supreme

Court decided Given that the rights given in the Hindi Sahitya Sammelan
Act 19(1) (c) encroaches upon Hence it wasunconstitutional.

5.5.8 IBRAHIM WAZIR V STATE OF BOMBAY62

According to sub-section (d) of clause one of article 19 of the Indian

constitution every citizen of India had the right to free movement
throughout its territory. Similarly, in clause (3), every citizen had been
given liberty to can reside in any part of the restrictions on thisfundamental
right Explanation 19 wasgiven in clause (3) any tribe in the interest of the
general public and includes the territories controlled by the permit pass.
Ibrahim Wazir Vs. State of Bombay in the Arrivals from Pakistan Act 1949

62
AIR - 1954 SC 229.

66 | P a g e
The validity ischallenged that the Act provided that any person, One who
wasdomiciled in India or Pakistan cannot enter India without a permit
Entry without permission isdeclared an offense punishable by the Act.

Under section 7 of the Act, the Central Government had the power
to remove such person from India who had committed any offense under
the aforesaid Actor against whom there wasa reasonable suspicion that he
had committed any the unconstitutionality of thissection ischallenged in
the dispute that the offense iscommitted. Whereas the said applicant had
entered India without a permit, he isHe isimprisoned and expelled from the
country. Supreme Court Thisact isdeclared illegal on the ground that it
didnt protect the citizens of India imposes unreasonable restrictions on the
fundamental right to settle or reside anywhere in the area It wassuch a
serious thing for a citizen to come to hismother land without a permit. It
wasnot an offense on the baswasof which hisexpulsion can be justified.
Highest The Court ruled in thisregard that Section 7 being contrary to
Article 19(m) because it wasunconstitutional any Indian to reside in
hishomeland or Settlement should not be denied In addition, determining
that whether someone committed a crime or not isleft to the personal
decision of the government which gives arbitrary power to the government.

5.5.9 SHANKARI PRASAD V UNION OF INDIA

In thiscase, the recognition of the first amendment act 1951 of the

constitution ischallenged. The main premise of the challenge isthat the
Indian Constitution isviolates or infringes on the fundamental rights given
in Part III prohibited by 13(2). Hence it wasillegal. Article 13 provides that
any The State shall not make any such law which wasin accordance with
the fundamental provisions of Part III of the Citizens reduces or takes away

67 | P a g e
 rights. In thiscase the petitioners argued That 'Constitutional Amendment'
also passed under Article 368 of the Indian Constitution The word 'law'
used in Article 13 includes law and the fundamental rules given in Part III
Being against the rights, it wasunconstitutional. Supreme Court of India
Rejecting the arguments made by the petitioners, it isheld that Power to
amend the Constitution, including fundamental rights Article 368
contained in. The word 'law' used in article 13 includes only laws which
are made by the exercise of ordinary legislative power, not by
constitutional amendment which are passed by the exercise of
constitutional power. Therefore article 368 Constitutional amendments
passed under it will be constitutional, even if they are against the
fundamental rights Why not be against it.

5.5.10 SAJJAN SINGH V STATE OF RAJASTHAN63

17th Amendment of the Constitution by which Article 31(a) and 9th

Schedule The amendment ismade in the Punjab Land Lease Security Act.
Constitutional protection to the Land Reform Act passed by the State of
Kerala and Madras isto be provided. In the said case the 17th Amendment
Act ischallenged. Thisapproved its decision given in the case of Shankari
Prasad. Highest the court ruled by majority that the fundamental rights in
the power conferred by section 368 including the right not to be taken
away. The right to amend wasactually a comprehensive right whose scope
modification there wasmore than just the meaning of the word. The court
also said that if the Constitution If the manufacturers wanted to keep the
Fundamental Rights beyond the amendment, then surely they a clear
provision or provision wasincluded in the constitution regarding this. From

63
AIR - 1965 SC 861.

68 | P a g e
 the controversy of Shankari Prasad, it seemed that the amendment in the
fundamental rights It had become necessary to do thisbut in the case of
Sajjan Singh, the judge, Mr. Hidayatullah And Mr. Madholkar expressed
some doubts. Judge Hidayatullah said that 'thisI should not think that I
agree with the view that Article 13(2) of the Indian Constitution The
amendment does not control the Act. I want to make it clear here that, I
cannot express my opinion on thismatter as I suspect that it would depend
on how broad or broad the word 'law' wasin Article 13(2). ThisIn
thisregard, Justice Madholkar also said that ―the reasons which our
learned brothers In view of what Hidayatullah had given, I wish to express
any definite opinion on the matter. I am reluctant whether the amended Act
passed by the Parliament wasan Article of the Constitution 13(2)
wasoutside the word 'law' and whether Parliament makes any amendment
in Part III of the Constitution can do.‖ In thisway, it can be said in clear
words that the highest number given in thisperiod various factors have
played an influential role in the decisions of the Court. Supreme Court Not
only this, India's political, social, various changes were also taking place
in the economic conditions. As a result, China and The aggressive attitude
of Pakistan had to be dealt with. India's ruling Congress party isplagued by
internal turmoil. In the same period when the Indian democratic
constitution It didnt take much time to come into force, many amendments
had to be made. First constitutional amendment to remove the difficulties
related to various decisions of Act 1951 ispassed in Romesh Thapar64 v
State of Madras, Brij Bhushan Vs State of Delhi65, Motilal Vs Uttar
Pradesh66 Champakam Daurairajan Vs Madras State67, etc. arose out of

64
AIR - 1950 SC 124.
65
AIR - 1950 SC 129.
66
AIR - 1951 Allahabad 257.
67
AIR - 1951 SC 226.

69 | P a g e
 matters. 21 amendments to the Indian Constitution during thisperiod
Happened.

5.5.11 GOLAKNATH V STATE OF PUNJAB68

Henry Golaknath passed away on July 20, 1953, leaving a lot of

wealth. In 1966, the petitioner, hisson grandson, appointed the Finance
Commission of the High Court of Punjab State. As the Finance
Commissioner of Jalandhar region had filed a loan petition against In 1962
it isdecided that Golaknath had 418 acres of land under Punjab Security
Under the provisions of Section 10 of the Off Land Tenures Act, the
additional land was(declared did) the petitioners (descendants of
Golaknath) alleged that under thisAct Provision on the baswasof which
thisland had been described as surplus or surplus wasNil The litigants have
upheld the decision of the Finance Commissioner under Article 19(1) (x)
and 14 of the Constitutions.

In addition, the first, fourth and seventeenth sections of the

constitution were challenged due to Amendments were also challenged
which were passed in 1951, 1955 and 1964 respectively. Were gone It
isalso argued that the 14th and 17th amendments of the Constitution to that
extent It wasunconstitutional in so far as it violates their fundamental
rights. Applicants submitted that the above provisions of the Punjab Land
Tenures Act under Article 14 and Being against 19 should be declared
unconstitutional. Some similar litigation ismade by the Mysore Land
Reform Act, which imposed a ceiling on land that the basic spirit of the
Constitution is19(1) wasagainst H and 14.

68
Jain, M.P. - Indian Constitutional Law, p. 432

70 | P a g e
 The states of Punjab and Mysore argued that the said The Act
wasprotected by the 17th Amendment to the Constitution. So now under
Article 31(a) By the inclusion of the said Acts in the 9th Schedule by the
amendment, it becomes valid law, while the petitioners have filed the said
Acts in the Supreme Court in accordance with Article 32 challenged.
Regarding the constitutional rights of the Parliament regarding the
Golaknath case The main question in the dispute iswhether the Parliament
should be given the fundamental rights mentioned in Part III of the
Constitution Right to amend rights? WasArticle 368 such an amendment to
Parliament? Validity of the 17th Amendment Act of the Constitution in
thiscase Ischallenged.

A batch of judges isappointed to look into the matter. It isheaded by

Chief Justice GK Subbarao majority of judges Rights have the power to
infringe on fundamental rights so a time may come when these rights can
be completely abolished. In thiscase, the court ruled by majority that the
fundamental rights were to be amended and the word 'law' used in article
13(2) includes constitutional law. Includes the same constitutional
amendment declared void to the extent where till then he used to encroach
on the fundamental rights.

Thisdecision of the Indian Constitution It holds great importance in

history. Many jurists considered it a unique decision. Supreme Court
reverses its earlier decision in Golaknath case for this; he used the key
words in Article 13(2) of the Constitution in which it wassaid that "the State
shall not make any such law which wasin accordance with the fundamental
provisions of Part III of the Constitution" takes away or abridges the rights
and every law made in contravention of thisPart void to the extent of
violation. The decision of the court in the Golaknath dispute created a
constitutional criswaswhich not only made the relationship between the

71 | P a g e
legislature and the judiciary controversial Rather, it had created many such
problems which are for constitutional and legal experts proved to be a new
complication.

The country of thisdecision given by the Supreme Court There isa

wide response. It issaid by a group of politicians and the intelligentsia that
thisOn the baswasof the decision, the Supreme Court attained that position
in the constitutional system of the country wastrying to do which neither
the makers of the Constitution wanted to give it and Nor wasit justified. In
Indian democracy, the interests of the people of the country are supreme.
Representation can be done only by the Indian Parliament and the
Parliament itself wascan decide in relation to what extent the fundamental
rights of the people of the country And there should be freedoms.
Golaknath decision isaccepted by most of the jurists Considered contrary
to the language and spirit of the Constitution.

The decision given by the Supreme Court in the Golaknath dispute

wasTime shows distrust in the democratic decision taken by the people and
thisIt wastotally against the basic concept of democracy in fact it's a It isa
'political' decision that led to an extremely unpleasant and bitter dispute
between the judiciary and the Parliament controversial situation had arisen.
Former Attorney General M.C. Setalvad took thisdecision Commenting on
it, said that– ―The Supreme Court wasthe meaning of the Fourth
Amendment to the Constitution and had been unable to grasp the
sentiment. The purpose of thisconstitutional amendment wasto compensate
Parliament to be the final adjudicator with regard to the quantum of
compensation and compensation to the courts The amount of adequacy isto
prevent checking.

Majority decision in Golaknath case does not seem appropriate from

a constitutional point of view." The goal of the constitution makers isnever

72 | P a g e
that the constitution isirrevocable. No section thereof to be made indicates
that any particular part of it will be irreversible. Constitutional experts
pointed out many errors in the decision of thismatter. In fact the true nature
of the amendment clause isnot understood and the earlier decisions but
isnot given due consideration. Its decision isgiven in a constitutional
dispute.

The eminent jurist PK Tripathi, annoyed by thisdecision, said that

―It wasan attempt to replace the government of the people with the
government of the judiciary was." of economic and social progress
according to the changing circumstances. There wasa need to make
changes in the Fundamental Rights to move forward in the direction and if
in such circumstance the Fundamental Rights are not amended If it goes,
thisthing wasvery important for the Indian democracy and also for the
fundamental rights themselves may prove fatal. Large groups of scholars
have rightly said - "The court The aspirations of the constitution makers
were not taken care of. Court of the 19th century Lenswashad established
its supremacy by adopting the Fair philosophy.

In Indian democracy, the highest representation of the interests of

the people of the country wasmade by the Parliament and Parliament can
decide whether To what extent the people of the country should get the
fundamental rights and freedoms Thiswasthe reason why the framers of the
Constitution advocated parliamentary supremacy and judicial review have
tried to establish coordination between and to maintain thiscoordination
needed. Rather than the judges keeping in view the extent of their powers,
these limits of powers should be kept in view ―Thisdecision of the court
had changed the jurisdiction of the created instability. Thisdecision
wasgoing to set back on a path that The United States abandoned itself in
the 30s. Mr. Servai called it the biggest Said public prank. "Certain young

73 | P a g e
politicians of the Congress who are concerned about the constitutional
amendment rights of the Parliament were in favour, began to talk of a
conflict between the Court and Parliament. By Chandrajit Yadav Even said
that 'if the Supreme Court does not change its decision, then it will directly
Collision wasinevitable.' The then Secretary Shri Krishnakant said that 'if
the Constitution wasa social If there wasan obstacle in the pace of change,
then it cannot survive.' many members have Discussed till the removal of
judges. Many Progressives outside Parliament Political parties and
ideologues demand recognition of Parliament's amendment power.

Finally, in 1971, the vast majority of the Congress party decided to

solve all the problems Passed the 24th amendment. Irrespective of the legal
practitioners and politicians, the courts make their decisions. But to remove
the difficulties arising out of the decision, the 24th of the Constitution The
amendment ispassed where the Golaknathak decision gave birth to a lively
debate. Given there the decision of the court in the cases of nationalization
of banks and privypers immediately made accessible the land on which the
Parliament stood and acted as retaliation. As a result, the 25th and 26th
amendments were made.

The court made it clear that it would give priority to the rule of law.
President Can exercise hisrights only according to the arrangement of the
constitution, all these The decisions had far-reaching consequences as the
Supreme Court in these judgments Prove yourself to be the guardian of the
Constitution. On the proposal to amend the Constitution due to the above
grave circumstances Parliament began to be considered so that the decision
given in the Golaknath dispute could be annulled18 . A Bill to thiseffect
isintroduced in the Lok Sabha by member Nathwai but thiscould not be
considered immediately.

74 | P a g e
 Finally, on 28 July 1971, the 24th amendment The bill isintroduced
in the Lok Sabha. by an overwhelming majority by the Lok Sabha and the
Rajya Sabha After it ispassed, it isalso passed by the state legislatures. And
it took the form of law only in 1971. by thisconstitutional amendment It
had been laid down that the Parliament shall have no say in any provision
of the Constitution which Fundamental rights also come, there will be the
right to amend. There wasno doubt that the 24th amendment to the
constitution It isabsolutely necessary, after this, in the constitution to limit
the fundamental rights The 25th and 29th amendments were declared
invalid by the Supreme Court.

5.5.12 MADHAV RAO SCINDIA & ORS VS UNION OF

INDIA69

Arrangement to give some special rights and respect to the former

kings of India isalso done. ―The merger of the princely states after
independence isthe most important thing at that time. There isa great need.
There isan agreement between these princely states and the Government of
India. Accordingly, arrangements were made to give privypers and
privileges to the kings. March 1950 According to a white paper of India,
the expenditure on the princely states isabout 580 lakhs country's there isno
value in such expenditure keeping in view the unity.‖ According to the
Constitution, the Privypers were paid from the Consolidated Fund of India.
An attempt isalso made to keep the system of privypers away from political
influence. Slogans proved to bring some new twist in the Indian political
situation 1967 The ruling party took initiative to give concrete programs in
place of Privypers accepted the policy of dismantling, and Prime Minister

69
Dinaman - 22 February 1970, p. 11.

75 | P a g e
 Mrs. Indira Gandhi expressed her views said that the special rights given
to the Indian kings on the discriminatory system wasbased. Therefore, the
Prime Minister granted the privileges and privileges of the Indian kings
Introduced a bill to abolish. Bill to abolish Privypers and Privileges by 2:3
majority in Lok Sabha It ispassed but due to lack of one vote in Rajya
Sabha it could not be passed. Such In thissituation, the President, on the
advice of the Cabinet, issued an ordinance in which the kings
Announcement ismade to abolish the Privypers and Privileges. Article 32
by the kings challenged the order of the President. Such reprimand to the
government in the decision given by the court in the Privypers case. Which
isalso stricter than the decision given in the matter of nationalization of
banks. thisone It isa sharp slap There are definitely merits and demerits of
the said decision, but thisjudgment had proved that The judiciary gives an
important place to the rule of law and exercises the powers of the President.
The exercise can be done only in accordance with the constitutional system
the court itself He proved to be the custodian of the constitution Mrs. Indira
Gandhi's government in the constitution to repeal thisdecision The
Privypers and Privileges were abolished by the 26th Amendment

5.5.13 MINERVA MILLS V UNION OF INDIA70

In 1973, the Supreme Court gave its verdict in the Kesavananda

Bharati dispute said that-

• Parliament can neither destroy the Fundamental Rights nor the

Constitution It can change the basic principles and within the limits it can
change any of the Constitution may also amend any article of Part.

70
AIR - 1980 SC 1789.

76 | P a g e
 • The 24th Constitutional Amendment wasvalid.

• Parliament or the Legislative Assemblies at the time of making an

ordinary law under section 368 The right of constitutional amendment
cannot be exercised.

• By the 25th Constitutional Amendment, the use of 'amount' in

place of compensation wasvalid.

• By the 25th amendment, it wasillegal to add section 31 'C' to the

constitution. 1973 Golaknath in relation to the paramountcy of Parliament
by the decision of the Fundamental Rights dispute in the pre-judgment
position isrestored. in which it became clear that No amendment can be
made that changes the basic structure of the constitution.

The same isconfirmed in the Minerva Mills controversy A full bench

of five judges of the Supreme Court by 4:1 majority 31-C isdeclared
unconstitutional on the ground that it isa fundamental part of the
Constitution damages the structure. Article 31-C Equality (Article 14) and
liberties (Article 19) fundamental rights, which are essential for the
existence of a free democracy. Important for Rule of Law and Judicial
Review Basic Structure of the Constitution essential element of the Act
which Article 31'C' destroys.

The court said that the policy Fundamental rights must be abolished
to implement the Directive Principles. No, the decision of the majority
wasin accordance with the basic spirit enshrined in the Constitution.
Fundamental Rights and the Directive Principles of Policy are
complementary to each other. In fact, the Directive Principles of Policy are
the goals we have to achieve and fundamental rights are the means through
which. Those goals can be achieved. The framers of the constitution
wanted to make India a public welfare state but Establishment of welfare

77 | P a g e
 state cannot happen in one night. It wasnecessary for him that the state will
reach that goal by keeping a clear goal of the welfare state before itself.
Try to reach there should be some ideals in front of him, which he gradually
implements. Let's do it thisjustification for the inclusion of Directive
Principles of Policy in the Indian Constitution WasDr. Gajendra Gadkar
had rightly written that ―Indian democracy waspart of the Constitution. I
follow the fundamental rights given to the citizens contained in part four
To make sincere efforts to implement the socioeconomic principles
Committed." Thus in thiscase the Court made it clear that the Constitution
in India wassupreme. and not the Parliament i.e. Parliament cannot
increase its limited amending power to amend the Constitution and Judicial
Review are the fundamentals of the Constitution essential element of the
framework.

5.5.14 SUPREME COURT ADVOCATES ON RECORD

ASSOCIATION V UNION OF INDIA 71

The N.J.A.C. Act 2014 ischallenged on the ground that N.J.A.C. a

system that violates judicial independence in which judicial Chief Justice
will no longer have primacy in appointments and in which the judiciary
there will be no control over thiscommission. The influence of the
executive and parliament will prevail. It also empowers Parliament to
change judicial selection criteria and procedures which provides for
judicial independence, separation of power and the rule of law
wasinfringement. The Court held that the National Judicial Appointments
Commission The Constitution (99th Amendment) Act, 2014 and the
appointment, power and procedure of the Commission The National
Judicial Appointments Commission Act, 2014 providing for The
Constitution (99th Amendment) Act, 2014 wasdeclared unconstitutional

71
AIR - 2015, SCW 5457

78 | P a g e
 and void The collegium system which isworking before wasdeclared
functional.

5.6 PIL WASA BASE OF JUDICIAL ACTIVISM IN INDIA

5.6.1 INTRODUCTION

Public interest litigation plays an important role in the civil justice

system. It gives priority to the interests of the public. Its aim wasto ensure
social and collective justice. Its function wasto provide justice to the
deprived, oppressed and marginalized sections of the society. It provides
an opportunity for rights collectively. It allows civil society not only to
spread awareness about human rights but also to participate in the decision-
making process of the government. It contributes to good governance with
accountability to the government. Traditionally before the emergence of
public interest litigation, justice isa far-flung reality for the illiterate,
disadvantaged and exploited masses, a person who had suffered legal
remedies through court. The Hon'ble Supreme Court had redefined the
concept of 'locus standi' and removed a major impediment in the courts to
justice. The new situation wasthat if something had happened to a person
or a class of persons legally wrong and they cannot approach the court due
to poverty or any other incapacity, then on their behalf a person interested
in public interest or a The way wasopen for the social working group to file
a petition to get justice in the court. Thisnew approach had brought justice
to the poor and the oppressed and thus increased the scope of the
constitutional objectives of providing socio-economic justice to all.

79 | P a g e
 5.6.2 MEANING OF PUBLIC INTEREST LITIGATION

Public interest litigation means a judicial proceeding initiated in the

public interest or in the general interest, having an interest in the interest
of a group of community, thereby affecting its legal rights and
responsibilities. A public interest litigation wasa proceeding in which an
individual or group seeks relief for the public and not for itself. Even in
thisera of globalization, especially the exploited sections of the society are
facing many difficulties in getting their legal rights through the court.
Thischange washappening gradually in the administration of justice. Public
interest litigation as a legal instrument wasplaying a major role in bringing
about thischange. Public interest litigation had emerged as one of the major
methods of social work in thisnew century for the social worker who wasa
change agent.

5.6.3 DEFINITION OF PUBLIC INTEREST LITIGATION

Lawmakers have defined public interest law in different ways. The

Public Interest Law Council established by the Ford Foundation of
America submitted its report defining the law of public interest, it had been
said that "the process of law at present Gave statutory representation to
unrepresented or inadequately represented groups in Efforts to leave are
called public interest law. In the absence of proper help these. The vital
interests of the people have been neglected. Only the poor and helpless
includes not only people but also citizens who are involved in any other
are unable to reach courts or other legal forums, where their interests
Decisions relating to public interest are taken.

According to the above definition, there are mainly two things under
public interest law. Includes –

80 | P a g e
 (1) Cases in which interested persons should be immediately It
wasnecessary to provide legal services and

(2) Such policyoriented issues, which impact on a large number of

people or who may be affected by any significant legal reform be related.

5.6.4 PERSONS THOSE CAN FILE A PUBLIC INTEREST

LITIGATION

In typical cases, it wasseen that the bothered party for example the
person in question, who wasimpacted needs to record hiscase in an official
courtroom. That individual ought to have an interest in the question. In any
case, in documenting of Public Interest Litigation there wasno such
condition. Any individual can record a Public Interest Litigation. The main
condition being that the equivalent must be documented n Public Interest.
Public Interest Litigation will be suit presented in a courtroom, not by the
wronged party but rather by the actual court or by some other confidential
party. It isn't required, for the activity of the court's ward, that the individual
who wasthe survivor of the infringement of their right ought to by and by
move toward the court. Public Interest Litigation wasthe power given to
people in general by courts to safeguard interest of public at large. Such
cases might happen when the casualty doesn't have the fundamental assets
to initiate suit or hisopportunity to move court had been stifled or infringed
upon. The court might itself at any point take comprehension of the matter
and go before suo motu or cases can start on the appeal of any open
energetic person.

81 | P a g e
 5.6.5 THE INTRODUCTION OF PUBLIC INTEREST
LITIGATION AND THEIR HISTORICAL BACKGROUND

Fighting with the current economic and social problems, a ray of

hope appeared in the Indian judicial system around 1975 When some active
and active judges of the Supreme Court, liberalizing the rule related to the
traditional right of hearing, started giving justice to the common man
through matters of public interest. Encouraged by thiseffort of the Indian
judiciary, some civil servants and institutions also started the process of
providing justice to the common people by filing public interest litigation
in the courts against the noncompliance or neglect of the duty of the
administrative officers.

Thus, as a result of judicial functioning, the downtrodden, neglected

and resource less people of the society started getting proper justice. Today
the system of public interest matters had been fully established all over
India.

With the social and economic complexities of human life, new

dimensions of public interest matters are emerging in the present and now
its scope had become more extensive. It wasnoteworthy that due to the
movement of public interest action, it had become possible to put a proper
check on the arbitrariness and negligence of the government and in case of
violation of the legal rights of the general public, a public interest litigation
had been filed against the government by a public servant, organization or
group even if the applicant himself does not have a personal interest in it.

The credit for the beginning of the public interest movement

wasactually to America, where in the sixth decade of the present century,
the public interest law isstarted for the unrepresented interests of the

82 | P a g e
people. Although administrative tribunals had come into existence by that
time, but due to the lack of proper protection of public interest by these
tribunals, in many cases people had to be deprived of their rights
unnecessarily. As a result, the practice of protecting the physical and
mental development of minorities, women, children, etc. and the interests
of the marginalized people of the society through public interest law
started. Similarly, initiatives were taken to protect the interests of the
consumer and the general public from environmental pollution. Around
1956, Public Interest Law had become fully established in America, so that
under it such cases could be heard.

Which, being related to public policies, are having an adverse effect

on the larger public rather than an individual. Along with this, a 'Lokhit
Vidhi Parishad' isalso established to provide legal services to the poor and
helpless people. Liberal services of advocates were also needed to protect
the interests of the illiterate and unorganized poor people and to provide
them easy justice due to the exploitation of the government machinery or
due to the neglectful attitude.

As a result, for this, the federal government of America established

the Office of Economic Opportunities, through which the initiative istaken
to get justice on behalf of innumerable unorganized lower strata people by
filing suit in the court. Along with this, many such voluntary organizations
also came forward, who made a remarkable contribution towards social
security by raising public-wide issues like child protection, prison system,
caste discrimination, pollution consumer protection in the court.

In 1974, the US Congress established an independent legal service

rule. By which special attention ispaid to the protection of the poor from
the arbitrariness of the landowners under the legal aid program and for
thisnecessary changes were suggested in the eviction law. in America until

83 | P a g e
1975 The scope of public interest law had become so wide that it includes
almost all types of It ispossible to raise issues related to the social interests
of the These include consumers and In addition to protecting the
environment, tax-reform health and safety of land and energy Special
attention ispaid to important things like experimentation, education reform,
planning, profit, human resource and loss caused by extension medium.

Most of the cases of the parties were related to factories, agriculture,

mines, labor, women, children and prisoners and handicapped, who were
still deprived of justice due to lack of proper means. After that the 'Right
of Hearing' rule ismade more liberal and comprehensive for the
development of public interest law in America. After the 1980s, the
American public attitude towards public interest law appears to be
declining somewhat. Although thismethod had made its place in the
American justice system in terms of superior legal service, yet due to
financial difficulties, traditional judicial process and changes in public
interest, public interest law could not achieve perfection.

5.6.6 OBJECTIVES OF PUBLIC INTEREST LITIGATION

The object of public interest litigation wasto protect the public

interest, that is, to protect any section of the society.

To protect the fundamental rights or other rights of persons who are

unable to approach the courts for protection of their rights due to their
poverty or other socioeconomic difficulties.

Thus the use of public interest litigation (Mainly those fundamental

rights of weak and poor persons which are provided under Article 21) done
for protection poor and weaker sections of the society .

84 | P a g e
 It wasof great importance in protecting the constitutional and legal
rights of the people of India. Public interest litigation wasan essential
element of the rule of law in a democracy. The rule of law not only protects
the rights of the people of the rich and privileged class but also protects the
rights of the weakest class and provides them justice.

The argument that such a case would increase the number of cases
in the court and, therefore, should not be encouraged, wasmisleading.
Justice Shri Bhagwati rejected the contention that promotion of public
interest would increase the cases in the courts and delay their disposal.

Chief Justice Shri Bhagwati had said that "No state had the right to
tell its citizens that since there are many cases of rich people pending in
our court, we will not allow the poor to come to the court for justice while
there the cases which can get the help of wealthy lawyers should not be
disposed of. The increase in cases in the court wasno answer to the fact that
the way of getting justice for the weaker and weaker sections of the society
should be closed.

It wasthe main objective of the public interest litigant that it wasto

protect the workers, the aggrieved women, to stop the inhuman treatment
of children, prisoners, orphans, give proper instructions to the concerned
authorities, so that various laws can be implemented properly and their
exploitation can be stopped. Under Article 32, every citizen of the country
had the right to file a public interest suit and report it to the court.

Under the jurisdiction under Article 32, the court had intervened in
various circumstances, such as cases of blindness of prisoners in Bihar
jails, exploitation of women in Nari Niketan, inhuman treatment of
children in jail, living in slums in Mumbai Release of bonded labor,
environmental protection, protection from cruel treatment of prisoners in

85 | P a g e
police custody, providing compensation and rehabilitation to rape victim
women, CNG to buses and other vehicles in Delhi.

Thisjurisdiction had been exercised in many cases, to conduct

elections to the Panchayats and Municipal Corporations in Uttar Pradesh,
to order the government to arrange proper treatment to save the public from
dengue disease.

Therefore, the decision of the Supreme Court, which wasfor the poor
and weaker section of the country Establishes the rights of the people as a
vigilant watchdog and leaves behind that old parochial ideology. According
to which only such person can apply to the court whose own fundamental
rights have been encroached upon by the state. When any person or
institution of the society can apply in the court in the matter of public
interest, the door of the court wasnot only open for industrialists,
contractors, smugglers, liquor emperors and rich people but also for crores
of exploited poor people of the country.

By thisdecision, the court had brought justice to the door of the

people, which had been invoked in Article 39 (A) of our Constitution. In
fact, in a democratic system, the poor and the oppressed classes also expect
from their court that they will get justice. The court accepted thisaspiration
of the people and benefited them even though there issome delay in it.
Thiswasan auspicious step in the direction of making the democratic
tradition solid and strong.

5.6.7 CONSTITUTIONAL JURISDICTION

The very existence of rights wasbased on remedies. In the absence

of treatments Rights simply do not exist. Where rights have been

86 | P a g e
specifically mentioned in the Indian Constitution, remedies have also been
included for the enforcement of these rights.

The power of the Supreme Court to enforce the Fundamental Rights

under Article 32 (11) wasvery wide. In thisregard, there wasno limitation
on what process he should follow. Except that it should be appropriate for
the purpose, that is, for the enforcement of the Fundamental Rights.

The court wasnot bound to follow the traditional adversarial system

which requires (defendants). Constitution makers have not prescribed any
special procedure for enforcement of Fundamental Rights because they
knew that for a country like India, where there wasso much poverty,
ignorance, illiteracy, deprivation and exploitation. There it would be failure
of remedies to insist on formula or proceedings for enforcement of
Fundamental Rights. Jurisdiction of the Supreme Court under Article 32 of
the Constitution It wasa 'basic structure', so it cannot be destroyed by
amendment under Article 368.

5.6.8 DIFFERENCE BETWEEN PUBLIC INTEREST

LITIGATION AND PRIVATE INTEREST LITIGATION

In private proceedings, the case takes place between two parties, in

which two parties are caught in a face to face dispute in the matter related
to the legal consequences of the past event, as wasnot the case in public
proceedings. The character of such litigation wasnecessarily to protect the
private rights and the proceedings are brought by the same persons in
whom the authority wasvested in the individual or with hislegally
constituted representative who wascompetent to act. Although in our
country, we have recognized the strict rule of 'right to be heard', which

87 | P a g e
wasapplicable to a person in private proceedings, while discarding it, he
had recognized the broad and liberal rule of being heard.

The person who wasin socially and economically disadvantaged

position who wascompletely ignorant about hisfundamental rights due to
poverty and ignorance and wasunable to go to court and get judicial
redress. For them, any member of the public, if he had no personal gain or
devious intention for the enforcement of their constitutional and legal
rights, can go to the court for such poor and helpless persons.

The court said that 'no hard litmus test can be used to define the rule
of right to be heard, because public interest litigation wasa very broad
concept and wasstill evolving today related to the concept of thisnewly
developed law. There are also different views in many perspectives.

The right to be heard wasan absolute necessity for a party to a

lawsuit because the legal status of a party to litigation, whether it relates to
a private or public proceeding in which a specific remedy wassought, must
be clearly ascertained at an early stage falls. In case of adversity, which
wasused as a personal trial, in case of difference of opinion between a
bench of two judges, the matter wasreferred to a larger bench of three
judges, and wasconsidered to be a majority decision, and further if
necessary.

The matter wassent to the constitutional batch, so that the problem

can be removed, even there the decision of the majority wasvalid. While
the public interest litigation wasnot of adversarial nature, rather it wasfor
co-ordination between the organs of a government, the legislature, the
executive and the judiciary and it wasthe duty of thiscourt to ensure that
their fundamental rights are enjoyed by all citizens, especially those who
are part of the society. There are people from the poor, deprived sections,

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and if their rights are violated then they are stopped by giving proper
instructions.

For their assistance, thisCourt had been empowered under Article

142 to pass such orders as it thinks fit for full justice in any suit or matter
pending before it. Such order which waspassed will be applicable in the
whole area and border of India. Development of Public Interest litigation
in India Public interest matters have emerged in India under completely
different circumstances from America.

Taking a leading role in thisdirection, some judges of the Supreme

Court, having special interest in social interest, took the initiative to
provide their human rights to the dalit, oppressed and oppressed persons.

In thisfield, the names of former Supreme Court judges, Hon'ble

Bhagwati and Krishna Iyer are particularly noteworthy, who by their
creative valuable decisions, showing sympathy towards the poor and
neglected sections of the society, tried their best to get them their rights or
rights. Even denoting the present traditional judicial system as a colonial
reminder, he had considered it unsuitable in the present changed
environment.

Through their unique judgments, these learned judges have exposed

the negligence and irresponsibility of the government departments or
public bodies related to the enforcement of law towards the Dalits and had
shown keen interest in getting their legal rights to the neglected. The
emergence of the concept of public interest wasanother form of judicial
awareness, which wasa right step towards adapting the present traditional
justice system to the social conditions.

Today, public interest action in the field of justice had taken the form
of a movement, whose aim wasto provide legal aid to the poor and to

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provide their human interest to the illiterate, uneducated and poor sections
of the society, which till date have been neglected and deprived of their
basic rights have been deprived. Thus, through public interest matters, the
statutory rights of the poor and marginalized class are protected in the same
way as those of the rich and resourceful class.

During the last ten years, the development of public interest matters
in India had taken place in the following phades –

- By the gradual development of the theory of the right to hearing,

- By the emergence of judicial jurisdiction to treat the ordinary
letter as a petition,
- By making judicial remedies more democratic
- Through the modified constitutional notion of social justice.

The biggest obstacle in providing justice to the common man isthat

for the petition to be admissible, it isabsolutely necessary to have the proper
interest of the petitioner in it, which had been called 'the principle of locus
standi'. In other words, only someone who isgenuinely aggrieved by it
could challenge an act of administrative exit.

Since the state isconsidered to be the sole custodian of public

interest, no private person could bring a case against the state or the
government on behalf of the general public, unless he himself isaggrieved
by it. Therefore, the individual didnt have the right to control the actions
of the state government or the misuse of power or negligence by setting up
a case in the court

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 CHAPTER 6: CONCLUSION AND SUGGESTIONS

6.1 CONCLUSION

It waswell-known that law in its most general and comprehensive

sense, signifies a rule of action and wasapplied indiscriminately to all kinds
of action, whether animate or inanimate, rational or irrational. Without law
there can be no order, no peace and no progress. If the individuals of the
society are free to act at their pleasure there would be choas. The
importance of law isrealised even at the earlier stages of human civilisation
as an instrument regulating the conduct and the affair of the society for the
common good. Law wasexperience developed by reason and reason tested
by experience. After passing through different stages it had now reached
the stage of socialization particularly in country like ours who are
committed to secure socialist republic for our people. The reasons and
experience have continuously been moulding the law to evoke a legal order
in which social, economic and political justice had to be assured to the
common citizen particularly the down-trodden in the society and without
any discrimination.

Law had many facets and theories which are basically intended to
bring out prominently different aspects of human conduct. The concept the
theories and the administration of law wasnot stagnant and had differed
from society to society and ages to ages. The law does not exist in vacuum
but wasconcerned with the human conduct of the constituents of the
society, of socio-political spheres in the society, cannot survive nor can the
same serve the purpose of assuring confidence in the masses for having a
welfare state or civilized society. Different philosophers and jurists have
stags. Keeping in view the social development of their countries or the

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society. Such theories and concepts were considered to be revolutionary in
the society by socio-politico-economic up- levels.

Law which does be deemed to be the law reflecting the will of the
people wedded to their welfare with the object of serving the society and
its individuals. Whatever philosophers of jurisprudence, its common
realistic aspect wasto do justice be administered according to the orthodox
and technical approach but conscience, Justice wasnot only to be done but
it should also appear to have been done. Equality wasa pillar of justice
founded on the concept that all human beings are equal and entitled to equal
treatment. Fairness Wasthe test of justice.

Law and the judges are twin brothers. Without a Judge

administration of law wasnot possible. With the change in the concept of
law, there isbeen a corresponding change in the Institution of the Judge. In
the primitive periods when the family which isthe smallest unit in the
society, isgoverned by its own code of conduct administered by the head
of the family which isthe smallest unit in the society, isgoverned by its own
code of conduct administered by the head of the family. The code of
conduct of the family isits law and the head of the family a Judge.

The scope iswidened and the administration of law and the code of
conduct became the responsibility and governed a clan and tribe. The head
of the Tribe administered the law amongst its members. The law had been
administered for a pretty long time by Ecclesiastical courts in the whole of
the World. The Priests, Molvwasand Pandits have been administering the
law with the force and fear of religious obligations. With the development
of law into a science, the present Institution of the Judge came into being
entrusted with the task of performing the duties of the administration of
law as adopted or enacted.

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 As law signifies the rule of conduct or action applicable to a family,
a true panchayat and a State, the same had to be administered with the
paramount object of serving the purpose of betterment of those for whom
such rule of conduct and action isadopted or enacted. It follows, therefore,
that the administration of justice wasa very solemn duty which should be
performed not only with the clean hands but also with clean conscience
and should not be influenced by any extraneous considerations. The
administration of law must inspire confidence in those for whom It
wasadopted or enacted. If the administration of law fails to inspire the
confidence of a common man, the Judge would be held failing in hisduty
of the administration of Justice.

The fact that the Judges preside the courts sitting on an elevated
platform and robed in glittering costumes should not in any way create an
impression of awe inspiring pageantry. The majesty of law should not only
be maintained but it should be understood by those for whom it
wasadministered. The judges who are faced with numerous complex
disputes, are under an obligation to find an answer acceptable by the
society or at least by the majority of the people. For this, judges are bound
to give reasons justifying their decisions. In the present society the task of
a judge wasmore comprehensive, complicated and creative. They are not
required to administer the law in the orthodox manner and on mere
technicalities. Mr. Justice Bhagwati, the then Chief Justice of India, while
addressing the commonwealth Law Conference at London, declared:

The task of the Judges takes them deeper into the future to make
decision which will affect the future of social and economic and sometimes
even political development and therefore in all humility they have to be
aware of the social needs and requirements and economic and political
compulsions and to recognise changes taking place in a fast developing

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society and to develop and adapt law to the changing needs and
requirements of the people. And on each occasion when they do so they are
expected to provide justifying reasons which must satisfy not only
themselves but also critics and jurists, may the society itself, for what they
decide. I am stressing all these aspects of the Judicial functions because it
wasimportant to remember that no other functionary of the State
wassubject to such a rigorous from of accountability as the Judges.

However are we to assess the Judicial function? There are some who
believe that the Judges can do whatever they like unfettered and
unrestricted while other believe that the Judges simply mechanically
interpret what the Legislature transmits as concretised rule. The truth in my
opinion lies mid-way between these two extremes. The Judges certainly
have no unrestricted and uninhibited power to decide as they like but
equally they do not mechanically reflect what the Legislature had said. The
task and function of the Judges wasnot just to Mechanically follow the
rules laid down by the Legislature but to reconcile them to the wider
objectives of justice. Fortunately, these wider objectives of justice have
been encapsulated in the constitutions of most of the commonwealth
countries. Obviously, therefore, constitutional interpretation plays a very
vital role in the discharge of the Judicial function. Since different countries
in the commonwealth have different kinds of constitutional structures
expectations from the Judges may also vary from country to country
though in may view there must always be a common denominator which
must inspire the judicial tradition to correlate constitutional interpretation
to the demands of social justice. There are three different kinds of
constitutional traditions which characterise the judicial function in
different parts of the commonwealth and it wasnecessary to consider the
manner in which each of them opines on the judicial traditions and

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succeeds or fails in achieving the wider objectives of justice embodied in
their respective constitution.

Justice had to be administered by Judicial discipline governing the

discharge of judicial function, coupled with humility, courtesy and respect
for views of others. There wasa debate going on in the whole of the world
as to whether judges can make or alter the law. There Wasa school of
thought which holds the view that the Judges are not legislators but are
only the interpreters of law. The other school of thought considers that law-
making wasan inherent and inevitable part of the Judicial process. In the
political system existing in thiscountry the role of a Judge in interpreting
the law legislated by the representative of the people wasmore important
because the law are virtually enacted by the bureaucrats and passed by
politicians representing the people in the Legislature, who generally do not
have the basic concept of the principles of law.

A duty of the Legislative process in our country would reveal that

the majority of the legislators are ignorant about the development of the
Judicial process in the country and lack the aptitude required for
legislation. The Representation of people Act, under which the elections
are held in thiscountry, do not provide any minimum qualification for a
person to contest the elections or subsequent guidelines for acquiring basic
knowledge pertaining to the legal jurisprudence. On account of their
liability to understand the complicated issues for which the law wasmade,
the inability to understand the language in which the law wasenacted and
non-existence of the foresight for which such legislation wasmade, leaves
the legislators of our country at the mercy of the bureaucrats who generally
do not have any commitment to the cause for which the law wasenacted
and non-existence of the foresight for which such legislation wasmade,
leaves the legislators of our country at the mercy of the bureaucrats who

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generally do not have any commitment to the cause for which the law are
legislated. Laws made by few in the Legislature are passed in the name of
all including those who do not understand the meaning of concept of the
legislation to which they have appended their signatures, are left to
interpreted by the Judges who are the product of the Judicial process and
have a wider concept and in depth about the problems for which the
legislation ismade. The Judges in our country have, therefore, acted as
trend setter in the Legislative process. Even Sir. Fredric Pollock had
acknowledged thisposition when he said that Judges do in take and alter
the Law, Justice Bhagwati, the then Chief Justice of India, while addressing
the commonwealth law conference at London, observed.

Law-making wasan inherent and inevitable part of the Judicial

process. Even where a judge wasconcerned with interpretation of a statute,
there wasample scope for him to develop and mould the law. It washe, who
infuses life and blood into the dry skeleton provided by the Legislature and
creates a living organism appropriate and adequate to meet the needs of the
society and by thus making and moulding the law, he takes part in the work
of creation. A Judge wasnot a mimic. Greatness on the bench lies in
creativity. The process of Judging wasa phade of a never ending movement
and something more wasexpected of a Judge than mere imitative
reproduction, lifeless repetition of a mechanical routine. It wasfor
thisreason that when a law comes before a Judge, he had to invest it with
meaning and content and in thisprocess of interpretation he makes law.

The concept of basic feature of the constitution of India, Principles

of Natural Justice, Public Interest or Social Action Litigation, Law relating
to environments and pollution, bonded labour, Dowry deaths, Bank
Nationalisation case, etc are some of the instances which shows that the
judges in our country did legislate law even by implication. Such

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legislation may be termed as creative interpretation of the statue but the
fact remains that while delivering judgements in the aforesaid matters, the
Judges have departed from the orthodox rule of interpreting the law
technically by rising to the occasion to safeguard the interest of the society
prevalent at a particular time. The scope of such legislation wasinherent in
our constitution itself where it wasdeclared that:

We, the people of India, having solemnly resolved to constitute India

into a Sovereign Socialist Secular Democratic Republic and to secure to all
its citizens. Justice, social economic and political.

The Judges being the creation of the Constitution are under an

obligation to up-hold its sovereignty by doing justice, social economic and
political to secure liberty of thought, expression, belief, faith and workshop
and equality of status and opportunity. If the Legislature fails in the duty to
achieve the object enshrined in the Preamble of the Constitution of India
or enacts law contrary to the fundamental rights enshrined in Part III of the
constitution, the Judges are under an obligation not only to quash such an
enactment but also to provide a guideline for achieving the objectives for
which the people of India adopted, enacted and gave to themselves the
constitution. Even Benjamin N. Cardozo, the eminent Jurist washistreatise.
THE NATURE OF THE JUDICAL PROCESS, admitted that Judge made
law isone of the existing realities of life.

Whereas it wastrue that Judges have been contribution by the

Judgements providing guidelines which have been termed as creative
judgements and sometimes have given directions to the extent of
legislation, it cannot be accepted as a general principle that the Judges
enjoined with the duty to legislate the law and usurp the powers of the
Parliament. In a democratic polity the three organs of the state, i.e. the
Legislature, the Executive and the Judiciary have their specified roles to

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play. The separation of the powers are distinct and even confined in water-
tight compartments. The Judges cannot substitute the Judiciary for the
functions of the Legislature. The criticism that the Judges should not in
anyway interfere with the working of the Legislature, if accepted, in our
country could amount to depriving the Judges of then right to interpret law
according to the aspirations of the people, the duties joined upon them
under the constitution and the need for the society.

The bureaucratic traditions of judicial process according to which

judges are expected to rely on the text alone completely governing the
social political and economic consideration, in my opinion cannot be
accepted in thiscountry. Dealing with thisproblem the then chief Justice of
India, Mr. Bhagwati held.

Such an approach does not tackle the problem of concealed

preference and biases in the structure of the statue itself. If the Judge
wassimply required to transmit rather than evaluate these preference and
basis, we have a very week theory of the judicial function. Here, judges are
seen as wholly subordinate to the legislature. Their job wasvisualized as
mechanical rather than creative. Under such an approach Judges are the
transmitters of both justice and injustice with even handed facility. No one
would respect Judges or the Judicial function if theyfelt that all the Judges
did isto mechanically transmit rules unseasoned by justice or equity. Judges
cannot just interpret statues in a mechanical fashion unconcerned with the
consequences of their decision or to use the words of Holmes, J. with the
potential radiation's of the decision they are making. The Judges must
examine the concealed preference and baswasin the statue and their effect
and balance them out in a way consistent with an overall pattern of social
justice.

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 Even though Article 368 of the constitution of India provides that
Parliament may in exercise of its constituent power amend by way of
addition, various or repeal any provision of thisconstitution in accordance
with the procedure laid down in that Article, yet the Supreme Court of India
in Golak Nath's case held that Parliament could not amend the fundamental
rights by declaring that the constitutions (Seventh Amendment) Act. 1964
insofar as it took away or abridged the fundamental rights isvoid under
Art.13(2) of the constitution.

Similarly, in Keshavananda no power to amend the constitution

which resulted in altering the basic foundation and structure of the
constitution. Even though it wasnot provided either under the constitution
or by any other enactment yet the powers of the parliament have been
restricted by the Judges from changing the foundation and structure of the
constitution. In view of that Judgement the parliament had no power to
make any amendment even in the constitution which amount to do away
with the supremacy of the constitution, republican and democratic form of
the Government, secular character of the constitution, separation of power
between the legislature, the executive and the judiciary and federal
character of the constitution and the like.

Similarly, even though according to the orthodox technical rules of

procedure an aggrieved person having a cause of action against any
individual or society could alone approach a court of law for redressal of
hisgrievances yet by the judicial process and activism the concept of the
public interest litigation had emerged which had been admitted,
acknowledged and acted upon in thiscountry. There had been a criticism
by the vested interest about the public interest litigation which
wassometimes termed as social action litigation that such litigation
isunnecessarily burdenning the courts and adding to the already staggering

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arrears of cases and if encouraged would amount to denial of justice to
those who have real problem and grievances against the state, Authorities
or the Institution. While considering such a criticism the Supreme Court of
India in People's Union of Democratic Right V. Union of India held:

There wasmisconception in the minds of some lawyers, journalists

and men in public life that public litigation wasunnecessarily cluttering up
the files of the courts and adding to the already staggering arrears of cases
which are pending for long years and it should not therefore be encouraged
by the court. It wastrue that there are large arrears pending in the courts
but, that cannot be any reason for denying access to justice to the poor and
weaker sections of the community. The time had now come when the courts
must become the courts for the poor and struggling masses of thiscountry.
They must shed their characater as upholders of the established order and
the status quo. They must be sensitised to the need of doing justice to the
large masses of people to whom justice had been denied by a cruel and
heartless society for generations. It wasthrough public interest litigation
that the problems of the poor are now coming to the forefront and the entire
theatre of the law waschanging. It holds our greatest possibilities for the
future.

Getting justice wasnot the privilege of few and the judical process
had made it possible for public in general to knock at the doors of justice
for the redress of the grievances of the public or a defined section of the
society. A wrong impression had been created by some people that public
interest litigation wasused as a matter of revenge, vengeance, or
vindictiveness. The courts in thiscountry have been reluctant to initiate
action on false and frivolous complaints made by vested interest with the
object of serving their personal interest or advancing their political cause.
The courts have been exercising powers in the public interest litigation very

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cautiously and for a definite purpose as have been set forth by the Supreme
Court and other High Courts in the country in various judgements. In
Bandhua Mukti Morcha Hon'ble Justice R.S. Pathak at hislordship then
was, cautioned that when a complaint wasreceived from a citizen whose
ascendants and status of communication are so uncertain that no sense of
responsibility can, without anything more, be attributed to the
communication, it should be insisted that such a communication must be
accompanied by a document or evidence indicating that the allegations
made therein were made with a sense of responsibility by a person who had
taken due care and cautions to verify those allegations before making them.
The courts must be vigilant against the abuse of its process. Under
exceptional circumstances such insistence could be waived of.

The administration of criminal law wasa very solemn duty of the

Judges. The purpose and object of are administration of such law wasthe
maintenance of peace and order in the society and for the welfare of its
constituents. Whereas the law contemplates that no innocent person should
be deprived of hislife and liberty. It also postulates that the criminals should
not go scot-free merely on the ground of technicalities or imaginative
considerations. The deteriorating law and order situation in the world
generally and in thiscountry particularly casts a very heavy duty upon the
Judges to way off the apprehensions of the common men. The approach
adopted should be reasonable and consistent with the objects of achieving
a welfare state free from criminals and violators of law. If the criminals are
dealt with leniently completely ignoring the object of preserving law and
peace, the same would result in chaos in the society. The staggering figure
showing the increase of crime in the society in alarming not only for the
judicial institution but for the whole of mankind. Whereas the law
postulates that no person should be convicted unless the offence wasproved

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to its hilt, and the benefit of all reasonable doubts should be given to the
accused it does not mean that the criminals should be treated as the guests
of the courts and benefit of all doubts irrespective of the fact whether they
are reasonable or not should be given to them. The sense of insecurity
presently prevalent had to be removed for which people look with greater
expectation to the institution of the judiciary. Crime wasthe first child of
man conceived and born not with hiswishes. The growth of such
illegitimate child had to be curtailed and circumscribed.

Whereas the growth of the constitutional law wasspread over about

four decades, the administration of criminal jurisprudence wasspread over
centuries. Crime wasbasically the product of socio-economic and political
conditions in country. The Judges are called upon not to ignore such
conditions and keep in mind the growing lawlessness.

The people have been taking advantage of the lacunae in our judicial
system and taking shelter under the old orthodox rules of interpretation to
get acquittals with the result that the crime had risen. A time had come
when the courts have to administer criminal law with utmost restrain and
be influenced by the hyper-technicalities of judicial process.

This, however, does not mean that the courts have to adhere to the
dogmatic consideration for arriving at the conclusion to ascertain the
existence of a circumstance allegedly led by the prosecution. The hyper-
technicalities or figments of imaginations couched in sweet pills cannot be
allowed to divest the court of its responsibility of sifting and weighing the
evidence in order to arrive at the conclusions regarding the existence or
otherwise on particular social position of the victim and the accused, the
larger interests of the society particularly keeping in view the law and order
problem, the degrading values of life inherent in our economic system
which have many a times resulted in failure of the cases on account of the

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better position of the accused on the basic of economically being well
placed. The criminal trail cannot be treated as a drama or a scene form a
stunt feature film. The realities of life have to be kept in the mind while
appreciating the evidence for arriving at the conclusion with respect to each
of the circumstances relied upon by the prosecution in particular case
which connects the accused with the commission of the crime. It does not
however mean that the courts should always make an effort to give latitude
to the prosecution and try to hold which the prosecution had failed to prove
at the trial. The traditional, dogmatic, hyper technical approach had to be
replaced by rational, realistic and genuine approach for administering
justice in a criminal trial. Criminal Jurisprudence cannot be considered to
be a utopian but have to be considered a part and parcel of the human
Civilization and the realities of life. The courts in the country cannot ignore
the erosion of values of life which are a common feature of the present
economical system. Such erosion cannot be given a bonus by giving a
latitude to those who are guilty of polluting the society and the mankind.

A criminal trial wasnot like a family tale wherein one wasfree to give
flight to ones Imagination and phantasy. It concerns itself with the question
as to whether the accused arraigned at the trial wasguilty of the crime with
which he wascharged. Crime wasan invent in real life and wasthe product
of inter play of different human emotions. At the conclusion about the guilt
of the accused charged with the commission of a crime, the court had to
judge the evidence by the yard-stick of probabilities, its intrinsic worth and
the animus of witnesses. Every case in the final analyswaswould have to
depend upon its own facts. Although the benefit of every reasonable doubt
should be given to the accused, the courts should not at the same time reject
evidence which wasex-facie trust-worthy on grounds which are fanciful or
in the nature of conjectures.

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 The judicial activism must be directed towards the achieving of
social Justice. The task wasmost complex and challenging in the words of
Hon'ble the then Chief Justice of India, Mr. Bhagwati. The modern judge
of the common law, in India, wascontrolled in any temptation to activism.
The judge's boldest ambitions are held in check by opportunity, need,
inclination and the judicial method of judges, the community experts
honesty, integrity and learning Increasing, it also expects efficiency,
timeliness and attention to case management. Prejudice and partiality have
no place in the judicial function. The people have a right to expect the judge
to be calm, objective and neutral.

Society wasslowly and somewhat reluctantly coming to realise that

the "fairytale" of the declaratory theory of the judicial function wasfalse
and always was. But there wasno clear divide which marks off the limits
of judicial creativity and activism Our communities have come to
understand that some measure of "Judicial activism" wasnot only
permissible but wastraditional in our system of law. Moreover, it
wasbeneficial to the noble cause of justice under the law. The challenge for
modern judges wasto find where the line lies in a particular case, at a
particular time and place. Each judge knows that limits exist. Most would
agree with the recent remarks of Justice Anthony Kennedy, of the United
State Supreme Court, that a society that leaves all or most of its hardest
decision to the courts wasa weak society. The burden which society casts
on its judges are greater today than ever before. The judges, are the servants
of the law and of our societies. They must continue to find the sources of
our discipline in legal authority. But when new problems arise, when the
common law had no exactly analogous decision or where (as it so often the
case) the privilege to decline the obligation of decision. Sometimes they
will err, for that wasinherent in the human condition. But if they search for

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 the solution to the particular case with the illumination of legal authority,
legal principle and legal policy and are sometimes called "Judicial
Activists", they must accept that appellation with fortitude. Activism had
limit as every one of us knows. But in a real sense the common law itself
wasthe product "Judicial Activists".

ThisResearcher hopes that thistheswaswould make positive

contributions to evoke a sense of confidence among the masses of our
country and would associate the judiciary in checking the erosion of values
in the administration of Justice. Let us be very frank to admit that the
confidence of the common man in the institution of judiciary wasshaking
and if effective preventive steps with the aspirations of the people are not
taken the institution of judiciary may collapse. The jurists, the Scholars of
law, Administrators of Law enforcing Agency, Professors, Teachers,
Judiciary and the common man are under an obligation to contribute
positively for securing the establishment of a society which wasfree form
fear to life and danger of exploitation of the common man. A Welfare
Society in which our constitution goals of justice-social economic and
political along with guaranteed freedom, liberty, equality and dignity to all
the citizens are realized.

6.2 ANALYSWASOF JUDICIAL ACTIVISM

The coming into force of the Indian Constitution regarding the

jurisdiction of judicial activism since then there had been a constant
struggle between the Parliament and the Judiciary. Many of the judiciary
the decisions have been the subject of controversy and criticism among
common intellectuals of the constitution to fulfill the ideals and resolutions
expressed under the Preamble and its Directive Principles. Whatever laws

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the Parliament made to do this, some elites of the society the class whose
interests were affected did the judiciary under the guise of fundamental
rights. The judiciary took refuge in the constitution, the existing law and to
protect the fundamental rights. In the context of its responsibility, these
parliamentary laws should be considered under its activism power. tried to
limit the sovereignty of Parliament by declaring it illegal, while the other
And the Parliament, with its commitment to public opinion, fulfilling the
mandate and socialist Considering the interference of the judiciary as
unwarranted in its path to achieving the goal Judiciary in exercise of its
legislative power through various constitutional amendments tried to limit
its supremacy by working the rights of thisThe result of the struggle isthat
the Constitution isthe time between the judiciary and the legislature.

As a result, the expected progress of the society wasnot going on like

a pendulum could. If the exercise of the power of judicial activism by the
Supreme Court If studied, it becomes clear that generally the Supreme
Court had the power of judicial activism had been exercised judiciously
from thispoint of view their the role had been commendable, but on some
occasions the decisions given by him because of thisher role had become
controversial. Supreme Court first the decision which isgiven in the case
of Golaknath, under which the constitutional amendment isthe limitations
of Parliament were exposed, due to which the position of the Supreme
Court remained controversial.

As a result, the highest order by the country and the so-called

progressive class the voice israised to limit the powers of the court of
thiskind Following are the main grounds of criticism:-

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 • OPPONENTS OF PROGRESSIVE IDEAS

Several Acts passed by the Parliament were challenged in the

Supreme Court and the court had declared many of those bills
unconstitutional by judicial activism isdeclared. Prominent among these
are the bill of nationalization of banks, former kings Bill regarding
termination of privileges and privileges etc. of these decisions There isa
sharp reaction in the public and the court isopposed to the orthodox and
progressive It issaid A section of the society had committed judiciary
(Committed judiciary) The demand israised. As a result, by the 42nd
Constitutional Amendment in 1976, the Supreme By limiting the power of
judicial activism of the court to a large extent isgiven. Therefore, by the
43rd Amendment, the Janata government, "Article 144 (A) reduced itself
and re-enacted the power of judicial activism to the Supreme Court done.

• ACTING AS A CONSERVATIVE FORCE

There wasno doubt that the Supreme Court had so far ruled on
individual liberty and civil Acted as a defender of rights. But it wasalso a
fact that judicial The system of activism acts as a conservative force. In
1950-51 it replaced some of the land reform laws passed under the
abolition of zamindari and jagirdari declared illegal. In 1953 by the rule of
"Sholapur Spinning and Weaving" company the acquisition isheld illegal
and in 'Kunhi Koman v State of Kerala', Kerala Concerned declared the act
illegal. Not only this, the Supreme Court had given its Vadita ismost
introduced in the 'Golaknath controversy' of 1967 by a majority of 6-5
Judgment that "Parliament cannot pass an Act which wasfundamental takes
away or limits the rights.” Attorney General, Legal Experts and Members
thisdecision iscriticized by Courts mostly represent the interests of a

107 | P a g e
particular class of law The Court, while interpreting, cannot completely
ignore that social objective which the Constitution had put forward. In a
public welfare nation, the judiciary wasexpected to will be helpful in
moving towards the welfare of the people, but India's highest On the
baswasof some of its decisions, the court had done the work of being a
hostage instead of being helpful in achieving thisgoal. Displayed by the
Supreme Court It wasbecause of the secularism that the Supreme Court had
been reconstituted from time to time and There have been demands to limit
its rights.

• IN PAST DECISIONS BY THE SUPREME COURT USING

JUDICIAL ACTIVISM CHANGE

There wasalso an objection against the system of judicial activism

that thisunder the system, the Supreme Court had many times passed its
earlier decisions in thisway. It had been changing that due to thismany
types of misconceptions have arisen about the system of the constitution
have happened. Shankari Prasad in 1952 and Sajjan Singh in 1965 and
1967 K Golaknath in which the Supreme Court unanimously agreed in the
first It isdecided by a majority in the second and second that the Parliament
along with the Fundamental Rights wasentitled to amend any part of the
“Part 3 1⁄4 of the Constitution ie 1⁄2 any provision relating to the provision
of Fundamental Rights Parliament shall not have the right to amend the
rights may be limited or terminated.

Similarly in 1969 State of Gujarat Vs. Shanti Lala Mangaldas and

Banks can take up the matter of Nationalization Act of 1969, the first of
which The Supreme Court had ruled that after the Fourth Amendment of
the Constitution, compensation outside the jurisdiction of the Court to

108 | P a g e
consider the adequacy or inadequacy of Is. Whereas in the second it
isdecided that the Banks contained in the Nationalization Act the principles
of compensation are irrelevant.

Similarly, in 1965's 'Usman Al Khan Vs Sagarmal' and 1971's

Related to the abolition of princes' privypers and withdrawal of recognition
of kings Act can take matters of which the Supreme Court unanimously in
the first from which it isdecided that the princely states should be merged
with the Indian Union and The entire system of Privy per’s waspolitical
rather than legal and the obligations related to it cannot be implemented
through the court, whereas in the other it had It isdecided that the
recognition of princes and kings made by the government should be The
act relating to the abolition isillegal. Its decisions by the Supreme Court
On the baswasof the above changes made in the Due to the system of law
there remains a situation of legal uncertainty in the country. Mohan Kumar
Mangalam had expressed a similar view in thisregard and said that “the
Supreme Due to continuous changes in its decisions by the court, a
situation of uncertainty of law had arisen and the law of the land itself
wasuncertain, more than that. Nothing can be harmful.”

• DELAY IN JUDICIAL PROCESS

Reasons and duration not fixed in Supreme Court for work overload
Because of this, justice wasreceived very late, it wasrightly said that the
case filed by grandfather and washeard by the grandson and thisdelay also
becomes the reason for darkness. As a result, the poor and middle class
people are deprived of justice. Supreme Court for the poor person because
of the long and cumbersome judicial system it wasvery costly to appeal to

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the Supreme Court due to which many poor people they are not able to
reach and rich people make justice in their favor because of money.

• INEFFECTIVE CONTROL OVER THE EXECUTIVE

Various types of suits against the state and the government before
the Supreme Court In which instead of the plaintiff, the welfare institutions
for other persons like (Bonded laborers, destitute women, and prisoners
etc. demand justice. Supreme Court in Even before the implementation of
the directions given in respect of the cases, the executive such as women's
shelters in Agra and jails of Uttar Pradesh. On the directions of the Supreme
Court in relation to inhuman crimes against child prisoners in when the
rights were investigated, destitute women and child prisoners from jail
isabandoned or sent elsewhere in such circumstance the Supreme Court It
becomes difficult to take any decision. As a result, the guilty person
waspresumed innocent. wastaken.

• VIOLATION OF CONSTITUTIONAL LIMITATIONS BY

JUDICIAL ACTIVISM

The provision of judicial activism in the Indian Constitution wasthus

unlimited as it wasdone in the United States of America. Judicial under the
Indian system of activism, the Supreme Court had to do not have the right
to be tested on the baswasof assumptions like natural justice Rather its
function wasonly to implement the laws passed by the legislature. judicial
Pandit Jawahar Lal explaining the limitations of the Indian system of
activism Nehru had said in the Constituent Assembly itself at the time of
framing the constitution that 'beyond these limits' Any Judge or Supreme
Court while within the Constitution itself Cannot form third house. Any
110 | P a g e
 Supreme Court or Judiciary The will of the Parliament representing the will
of the people cannot be judicially considered, that is, it cannot oppose the
wishes of the Parliament. 205 "If we're here and there if we make any
mistake then it can tell us the error, but as far as the last As regards the
future of the community, no judiciary can hinder it.72” After the Golaknath
dispute of 1967, the Supreme Court ruled in the period till 1971. Violation
of constitutional limits in exercise of power of judicial activism Is. In the
said dispute by the judiciary saying that "from the date of thisdecision
Parliament had to be established in any of the provisions of Part III of the
Constitution of the Fundamental Rights will not be taken away or
limited.”73 Thiswould seem to be the case that it wasa higher-level
institution than the Parliament, although the Constitution He could not
have imagined such a situation.

• CONFLICT BETWEEN PARLIAMENT AND SUPREME

COURT

The law made by the Parliament by the power of judicial activism

wassupreme declared invalid or void by the court, the Parliament and the
judiciary A situation of conflict arises in the middle. Given in the
Golaknath controversy in 1967 after the decision, both the organs have
tried to control each other. The 24th and 25th amendments were passed to
remove the situation arising in the judgment. Giving a decision on this, the
Court of Kesavanand Bharati dispute had given the basic elements As a
result; the 24th amendment and then the 44th amendment were passed.

72
Nehru, Pandit Jawaharlal - CAD Volume-9, p. 1195.
73
Chief Justice Subbarao - In Golak Nath vs State of Punjab.

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 • INSTABILITY IN SOCIAL, ECONOMIC AND POLITICAL
LIFE

The power of judicial activism keeps the fear that the legislature will
the law made and the policy adopted by the government for the nation
Supreme Court shall not be declared unconstitutional or void in such a
difficult situation always concerned about the methods related to social,
economic and political development works. Doubt remains. Many
economic developments based on the protection of fundamental rights and
the laws made for equality have been challenged in the court and they are
also illegal had been declared. Thiscreated instability in social, economic
and political life. It wasnatural to be Critics are of the view that the
judiciary should continue to work till the decision on the areas of economic
and political development. The executive and their allies belong to the
legislature.

• CONTROVERSIAL DECISION

Sometimes given by the Supreme Court through judicial activism

the decision becomes a matter of dispute. For example, former Chief
Justice Mr. Hidayatullah "A decision given by the Supreme Court in which
social and educational The protection provided by the Constitution to the
people of the backward classes had been reduced that criticized and said
that it wasin the same way that a particular person should be admitted to
the hospital will be admitted only if he wasunwell from both physical and
mental point of view It may be recalled that in a dispute the Supreme Court
had ruled that the backward castes Constitutional protection provided to
the people of the state can be available only when they are social And be
backward from both the educational point of view. "

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 • DECISIONS OF JUDICIAL ACTIVISM ARE
POLITICALLY MOTIVATED

It can be assumed that the Supreme Court had should have the right
to consider laws but the fact wasthat Supreme Court judges by their
political ideology while giving statutory decisions give color. In thisregard
it wassaid that "only by wearing a black cloak one can A person does not
become free from politics.” Judges People are living beings are influenced
by social and political life, so whenever a member of the Parliament If such
an act waspresented before them which wasagainst their ideology then
They make it unconstitutional or repeal (zero) under the guise of
constitutionality. Here the issue to be considered waswhether any
constitutional amendment which wasautomatically constitutional Can the
judiciary decide its legality Had the constitution given the judiciary the
right to decide the validity of the constitution To protect the Constitution
or both Second, when the constitutional amendment automatically Wasit a
part of the constitution, then whether the judiciary under the power of its
'constitutional protector' Shouldn't thisamendment provide judicial
protection?

These are questions on which Honorable jurists, jurists and scholars

to consider seriously the wanted. What wasthe basic structural element of
the constitution? It wasnot mentioned anywhere in the constitution had
been done. With reference to the right to interpret the Constitution, the
Supreme Court The task of determining thiswasentrusted to himself
through judicial activism According to the Kesavananda Bharati case in the
Supreme Court, considering the 24th amendment to be appropriate.

The court took away the power to amend the fundamental rights
from the Golaknath case. Had been handed over to the Parliament, but in
fact the court had increased its power even more, now the court can make
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 amendments in any part of the constitution in the basic elements.
Keshavanand can declare thispower illegal on the baswasof change In the
Bharti case itself, a part of the 25th amendment isdeclared invalid after
39th Amendment to the Constitution in 1975 in Rajnarayan Vs Indira
Gandhi74 case and In 1976, parts of the 42nd amendment in the Minerva
Mills case were also declared annulled on the same grounds were done.

Judicial activism on principled baswasaims at protecting the

constitution, protecting citizens Protection of rights and maintenance of
rule of law. in thiscontext The role of the judiciary can be considered as the
controller for constitutionalism which also prevents the violation of the
constitution by the institution, but in practice the judiciary had Thispower
of authority isused to derive a special meaning of the Constitution. From
thisit appears that the aim of the judiciary wasto maintain the status quo
and individualism. wasin maintaining. Status quo in a society full of social
and economic inequalities And individualism expresses the ideology of
consolidating these inequalities.

According to critics, it wasnot the constitution but the judge's own

ideology Which wasbecause of their own social and economic background.
Critics agree that any decision, no matter how big the court, determined by
the ideology of ideal belief, and by the values that He had gained from
hiseconomic, social background, teaching-testing and experience, It
wasalmost clear that the Supreme Court in India Judges generally come
from the wealthier urban upper middle and elite and Individualists are
influenced by liberal ideology Constitution and Nature of Courts The
political and social fundamentals developing in the nation to judges in
general. In thisenvironment, the judge maintains the dynamics of
development and change. They are not able to make accurate assessment

74
AIR - 1975, S.C. 2299.

114 | P a g e
and become helpful in maintaining the status quo. In the work of the
executive, for the sake of 'public interest' or in personal matters
Intervention may be acceptable to prevent injustice, but in the true sense of
public interest And the social interpreter can be Parliament and not the
Court of Justice Frey farther In the words of 'As had been fully proved in
history, the tendency of the judiciary to be constitutional Wrong or The
exact opposite had to be understood and such misconceptions are created
by public will. Also cannot be legally removed except at extremely slow
speeds.

Often because of considering individual liberties as more sacred than

necessary The judiciary begins to interpret the public interest through
judicial activism in such a way that even progressive steps of the
government can be declared unconstitutional US Supreme On thisbasis, the
executive had decided against the worldwide economic recession. The
proposed legislation to deal with isdeclared invalid of the general public
Due to organized protests and strong opposition from then-President
Roosevelt, although the Court He had to change hisattitude but it took a
long time in India too In the cases of privypers and bank nationalization of
kings, the court had given some The same approach istaken.

The Supreme Court of India had skillfully conducted in accordance

with the high ideals of democracy. He had performed hisconstitutional
functions, but some of hisdecisions seem to Provides that in place of
"procedure established by law", the principle of "proper method of justice"
wasadopting. In the case of Golaknath, it made Parliament on Fundamental
Rights. Limited the amendment power, whereas in the past the Parliament
had made many amendments. Constitution by the Fourth Amendment of
the Act it became clear that the amount of compensation described in
Article 31 (42) Not maintainable, yet in the case of bank nationalization,

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the Supreme Court had Considered and propounded the principle of fixed
compensation, which wasbeyond hisjurisdiction isout. In the case of
Kesavananda Bharati, he had to understand the basic nature of the
Constitution. Invented the concept when there wasnot a single word in the
Constitution which he State that such article thereof wasnon amendable.

Courts often argue for possible abuse of the constitutional

amendment power of Parliament. But in a parliamentary democracy it
wasirrelevant, even the court itself had its own power. As Judge Stephen
cited by Dysee wrote “We must assume that the Parliament which plays an
important role in law making discharges. He does hiswork in a proper and
legal manner. If any decision thereof wasnot in accordance with law, it may
be taken by a Judge It wastantamount to a mistake, against whose decision
there wasno provision for appeal in law."

It wasalso not an absolute truth to say that the Hon'ble Judges Are
indifferent to political philosophy or do not express it in their decisions.
Hon'ble Subbarao, former Chief Justice of Supreme Court on 23 December
1967 Emergency for 5 years after Chinese invasion in hisspeech at Nagpur
University Maintaining iscriticized.8 While the declaration of emergency
and its timing isbeyond judicial activism. He had said in clear words that
the history of the last 17 years shows that the power of constitutional
amendment had been used not to protect the constitution but to destroy it.
Will the honorable judge from hisstatement support those land reforms?
Who were criticizing whom it became necessary to amend the Constitution
to protect them from court blows? It wasalso clear that certain amendments
are necessary because of the decisions. Kameshwar Singh Vs Bihar State
In the case, the Patna High Court declared the Bihar Land Reforms Act
1950 illegal had given.9 Hence the need for the First Amendment. Vs
Dwarka Das Srinivas Solapur spinning weaving company by the Supreme

116 | P a g e
Court without giving any compensation declared illegal the act of taking
control of the company by the government for good management. So the
Fourth Amendment had to be undertaken. Kerala tops in land reforms
Court declared Kerala Land Reforms Act 1971 invalid hence 17th
amendment isrequired. Restriction on amending power of Parliament in
Golaknath case isimposed, so the 24th amendment of the constitution
became necessary. The 42nd Amendment came to the fore due to the
principle formulation of infrastructure in the case.

In thisregard, the separate jurisdictions of the judiciary and the

legislature have a beautiful Coordination Prof. K V Rao had done in the
following words - "Constitution as well as my personality I approach the
court for the protection of liberty. My freedom and more trust in Supreme
Court than majority in Parliament to protect honor but under which
constitution do I have to live, thison my behalf Prefers to give decision-
making power to its representatives than to courts I'll do it."

Right to Judicial Activism by the Supreme Court Decisions on the

question are taken by majority, if 4 out of 9 judges of the Supreme Court If
considered constitutional and 5 unconstitutional then that law will be
repealed Thus The legality or unconstitutionality of the law depends on the
decision of a judge. The reason wasthat thismethod wascalled the
authoritarianism of a judge 1⁄4 totalitarianism1⁄2 and undemocratic.
System wascalled. Munron had rightly written in thisregard that - "A single
judge who can remain in office for life and who wasunresponsive,
Parliament, executive and the President, who wasa popular and responsible
officer, to enforce laws and orders Can cancel.”

Many times the Supreme Court had decided under the Judge
Judicial Activism While giving them color in political color. its parties
while deciding the court cannot forget the interests of the people due to

117 | P a g e
which he isappointed to thispost Like Mr. Rowlett, Mr. Hegde and Mr.
Chief Justice of Shri Ajitnath Rai in violation of seniority of Rural Such
judges appointed may act in accordance with the interests of the appointing
party. At the same time, after the retirement of such judges, wrong
traditions were started by giving them important political posts like
Ambassador, Governor, and Vice President etc. Due to which even these
holy verses have not remained beyond criticism because such verses are
Give decisions according to the interests or principles of the ruling party
during the term of office in greed can. Thiswasalso considered a cause for
criticism.

Looking at the examples of 70 years in India, it wasknown that the

decisions of the courts The power of judicial activism wasnot interesting
to the government and the legislature Sometimes disputes between
judiciary, executive and legislative And tension had arisen. For example,
in relation to private property, Some of the judicial decisions given in the
areas of privileges and constitutional amendment Controversies have
arisen due to the result that such amendments have been made in the
constitution which The aim isto abolish or nullify those judicial systems
which the government didnt An attempt had been made to justify doing so
by saying that The Supreme Court, through these judgments, helped the
social and economic development of the nation hinders the process.

It wasnecessary in a democracy that there should be no hindrance in

the progressive work of the people are for thisit wasnecessary that the
government should run according to the wishes of the people and In order
to remain a servant of the public, it wasalso necessary that the government
should serve the people. The opinion of the thinkers in thisregard wasnot
only to be a servant, but to provide leadership to the public. That judicial

118 | P a g e
activism serves to make the constitution achievable, therefore it wascalled
It wasconsidered obstructing the progressive work of the people.

India's right to judicial activism had led to the high ideals of

democracy had efficiently performed hisconstitutional functions, but some
of hisJudgments give the impression that they follow law rather than
'procedure proposed by law' adopting the principle of due process, in the
case of Golaknath, it had fundamentally limited the amending power of
Parliament with regard to rights, whereas in the past, Parliament had
amended. It ismade clear by the Fourth Amendment to the Constitution that
Article The compensation amount mentioned in 31(2) wasnot litigable, yet
the Supreme Court had considered in the case of nationalization, the
principles of fixation of compensation which isoutside hisjurisdiction. In
Kesavananda Bharti case He invented the concept of the basic form of the
constitution while the constitution There wasnot a single word in it which
should imply that such article thereof wasun amendable is.

Socialism, secularism, equitable distribution of wealth and social

Justice etc. goals have been set. On the other hand, developing countries
like India are facing serious problems like poverty, hunger, malnutrition,
unemployment, illiteracy etc. There wasmore importance of these
constitutional goals to face these challenges. And to achieve the
constitutional goals, the general public elects its representatives in the
Parliament. When Parliament takes any legal step to solve these serious
problems and the judiciary does not exercise its activism power because of
the existing constitutional provisions. If it declares these laws illegal on
force, then the situation wasvery delicate at that time. gets manufactured.
Such judicial decisions will affect the economic, social development of the
country deadlocks begin to appear.

119 | P a g e
 It wasalso said that judges and jurists always use words. They
remove the hair in meaning of words and often the subject's self they stray
from in thisway, injustice wasdone to many laws. Supreme Court While
giving a decision, only those arguments in favor or against a law should be
considered. Which wasproduced before him in the Court, which washereby
necessary so it wasnot so wrong that all possible arguments should be
presented before him The point would be that the law should be declared
invalid because the public prosecutor they could not present proper
arguments in its favor.14 In the democratic government system of our
country, the people's elected body Parliament and Legislatures reflect the
will of the people and are responsible for public opinion and mandate. are
also committed, here the question arises that when the judiciary invalidates
the laws made by the Parliament for the fulfillment of these people's
aspirations then, will thisactivism power of the judiciary fulfill the wishes
of the people? Isn't it disrespectful? Does he have the right to do so? What
wasthe power of the judiciary over manpower? In our current democratic
system the people are supreme or Judiciary? When all the power wasvested
in the people, then the judicial power wasabove the people's power. How
can it be? No doubt the makers of our constitution believed that the Indian
In the political system, the role of the Parliament, which wasa people's
elected body, should be first. And the role of the judiciary should be
secondary.

When in India's democratic system of governance, the government

wasresponsible for its actions and policies. Wasthe judiciary, being a part
of the government, accountable to the public should also not be
accountable to the people and being a part of democracy shouldn’t he also
be disciplined by democratic discipline? When the people elected why it
wasnot a body, why the public and public representative body wasnot

120 | P a g e
responsible to the Parliament Is? When the public pays their labor in the
form of taxes to the judiciary for its expenditure then it should also have
the right to monitor the work of the judiciary and criticize its functioning.
our current regime In the system, all the power wasvested in the people;
Such a distance between public unresponsiveness and judiciary had never
been said to be justified can go. Judiciary becomes higher legislature by
the system of judicial activism It seeks to annul the functions of the
legislature and give new meaning to the laws. In practice, it makes it a
legislature whose decision or the meaning of the law becomes final.

Therefore, from judicial activism, the judiciary wasa in a way, it

starts functioning like a higher administrator. Due to the right of judicial
activism, the judiciary, the legislature and After activisming each and every
function of the executive, if it waswithin the provisions of the Constitution
If it wasunfavorable, then it had the right to cancel it, due to which these
two organs are indifferent. And it wasnatural to be discouraged because
until then there wasuncertainty in their every action unless it
wasactivismed by the Court, that wasto say, its It remains uncertain until
they give their final decision regarding legality. Supreme Court by Judicial
Activism "Procedure Established by Law" From the principle of due
process of law to the principle of It had come to be recognized that the
courts can see the good and bad of laws and to impose hisphilosophy on
the political and administrative system under the guise of the spirit of It
seems that only literal interpretation isprovided in the Indian Constitution
but The Supreme Court had set aside the good and bad of laws.

Thus the constitutional power of judicial activism wasprovided in

the Indian Constitution. The barrier to change and development wasbeing
represented, which had taken the form of representation. I have proved the
wishes and aspirations of the common man meaningless. It waswell settled

121 | P a g e
 in the minds of the selfish, capitalist and aristocrats that Public opinion can
be canceled on the strength of judicial activism power today forced the
intelligentsia and legal experts of the country to consider thisissue whether
the power of judicial activism had been given to poor and developing India
like suited to the socio-economic needs of the country? And what about the
Indian economic In order to stop the delay in social progress, the judiciary's
Judicial activism power should be curtailed.

6.3 SUGGESTIONS

1. There should be introspection by all the organs of the state, so that they
can work harmoniously to strengthen our democratic set up.
2. One organ should not try to prove superior over other organs of the
government. Friction, if any, can be avoided if each organ of the state
correctly understands and respects the constitutional functions of other
organs.
3. Judiciary should understand exasperation of people suffering from
delay in justice. It should improve its functioning. The judiciary should
expedite the process of administration of justice to command the
overwhelming confidence of the people.
4. There wasneed to develop healthy conventions on the baswasof mutual
respect keeping in view the common purpose to be served by the
exercise of power conferred on the various constitutional institutions.
5. Judges must withstand the temptation of publicity and also rid
themselves of the belief that the judiciary alone can solve all the
problems that afflict our nation and remember that PIL wasnot a pill for
every ill.
6. A care should be taken to ensure that judicial activism does not become
Judicial Adventurism, otherwise it might lead to chaos and people

122 | P a g e
 would not know which organ of the state to look for to stop abuse or
misuse of power.
7. The Supreme Court must recognize that “Policy wasfor the
government” and “Law for the Court”.
8. Judicial Activism should also be adapted for cleansing corrupt elements
in the judiciary itself. The Apex Court should act promptly in cases of
bribe and corruption against judges. The court should not put off its
hands from such issue rather than recommending impeachment of the
judge concerned. Further strict scrutiny should be made of character and
the work done in capacity of an advocate or a judge while appointing a
person as a judge.
9. In furtherance of this, There must be some institution not amenable to
contempt to raise its voice against apparent wrong judgements and its
findings must be appreciated and honoured by the judiciary. It would
lead to a lot of improvement in the functions of judiciary.
10.The Courts must exercise self restraint in certain defined areas where
the legislature and the executive have an exclusive role to play. What
wasthe demand of the hour wasJudicial Activism of the courts coupled
with Judicial Self restraint as judging the judges wasa difficult task.

123 | P a g e
 BIBLIOGRAPHY

- Vishakha v. State of Rajasthan AIR 1997 SC 3011

- Chaterji Susanta, "For Public Administration' Wasjudicial activism really
deterrent to legislative anarchy and executive tyranny?". The
Administrator, Vol XLII, April-June 1997, p.
- People's Union for Democratic Rights v. UOI, AIR 1982 SC 1473.
- Pritam Singh v. The State, AIR 1950 SC 169
- Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 1997 SC 3011.
- Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 972
- Bhopal gas tragedy and the Jessica Lal Murder case
- The Golak Nath case
- The 2G Licenses case
- SP Gupta v. UOI, AIR 1982 SC 304-14.
- Imtiaz Ahmad v. State of Uttar Pradesh, AIR 2012 SC 642.

WEBSITES

- "Evolution & Growth Of Judicial Activism In India", Shodhganga p79,

Reviewed at http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/
8/09_chapter%203.pdf
- Syed Waseem Rizvi v. Union of India, https://www.barandbench.com/
news/litigation/supreme-court- dismisses-plea-seeking-deletion-certain-
verses-quran.

BOOKS AND REFERENCES

- Agrawal, S.K. PIL: A Critique, Bombay, 1984.

- Austin, G., The Indian Constitution-Cornerstone of a Nation, Oxford, 1966

124 | P a g e
- Austin, G, Working of a Democratic Constitution: The Indian Experience
(N. Delhi, 1999)
- Alphons K.J., Making a Difference, Viking, New Delhi, 1996.
- Andhyarjina, T.R., Judicial Activitism and Constitutional Democracy in
India, Tripathy, Bombay, 1992.
- Bansal, JL, Supreme Court Judicial Restraint Vs Judicial Activism, Unique
Publication, Jaipur, 1985,
- Basu, D.D., Limited Government and Judicial Review, Prentice Hall, New
Delhi, 1993.
- Baxi, U. (ed.), Law and Poverty: Critical Essays. Tripathy, Bombay, 1988.
- Bhatia, KL, Judicial Activitism and Social Change, Deep and Deep, New
Delhi, 1990.
- Corwin, Edward, The Constitution and What it meant Today, Princeton
University, 1973.
- Capalethis, S.M., "Vindicating Public Interest through Courts: A
comparative contribution" in gartheds, Access to Justice.
- Dangwal, Parmesh, I Dare Kiran Bedi A Biography, UPSPD, New Delhi,

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