Judicial Activism and Over Reach: Issues and Concerns

Introduction

The Trinity – Legislative, Judiciary and the Executive-is an accomplished

phenomena, Harmonious existence is a theory.1 Montesquieu- a French Philosopher,

believed that concentration of power in one person or group results in disastrous

consequences. Therfore, governmental functions shall be vested in three different

organs the Legislature, the Executive and the Judiciary. He further felt that each organ

should be independent from others and they should not interfere with each other. His

principle of Separation of Powers can be encapsulated as follows:2

1. Each organ should be independent of another.

2. No one organ should perform functions that belong to the other.

For any of the two combined together could lead to disastrous consequences. For

instance if Judiciary combines with the Executive, it will result in judges becoming

violent and oppressive. If the Judiciary combines with the Legislature, there would be

no liberty. And if the Executive and the Legislature combine it would lead to

arbitrariness.Thus following Montesquieu’s theory of Separation of Powers, the

functions of the three organs of the Government can be categorised into Policy

Making [Legislative Function], Policy Implementation [Executive Function] and

Policy Adjudicating [Judicial Function].

This paper shall discuss Judicial Activism with Montesquieu’s theory of Separation of

Powers in the background.

What is Judicial Activism?

“Activism’ means “a policy of vigorous action of a philosophy or a creative will3” or

“The doctrine or policy of being active or doing things with decision”. Judicial

Activism would therefore mean taking recourse to judicial process leading to judicial

pronouncements on different intricate issues whereby new approach towards legal

1 Susant Chatterji , ‘“For Public Administration”: Is Judicial Activism Really Deterrent to Legislative Anarchy and Executive Tyranny?’,The Administrator,Vol.XLII,April-June 1997,pp 9-242 Montesquieu,Charles de Secondat,The Spirit of Laws,translated by Thomas Nugent,p.3463 Chambers 20th Dictionary

philosophy is made or to put it simply it is active role played on the part of the

Judiciary.

In the words of Justice J.S.Verma, Judicial Activism must necessarily mean “the

active process of implementation of the rule of law, essential for the preservation of

functional democracy”. According to Prof. Upendra Baxi, “Judicial Activism is an

ascriptive term. It means different things to different people. While some may exalt

the term by ascribing it as judicial creativity, dynamism of the judges, bringing a

revolution in the field of human rights and social welfare through enforcement of

public duties etc., others have criticised the term by ascribing it as judicial extremism,

judicial terrorism, transgression into the domains of the other organs of the State

negating the constitutional spirit etc.”

Constitutional Position

The Constitution provides for sufficient provisions to maintain the theory of

Separation of Powers. Article 504 prescribes separation of the Judiciary from the

Executive.Articles 1215 and 2116 forbid the legislature from discussing the conduct of

any judge in discharge of his duties. Articles 1227 and 2128 prohibit the courts from

sitting in judgement over the internal proceedings of the legislature. Article 105 (2)9

4 50. Separation of judiciary from executive -The State shall take steps to separate the judiciary from

the executive in the public services of the State 5 121. Restriction on discussion in Parliament - No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties expect upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided 6 211. Restriction on discussion in the Legislature - No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties 7 122. Courts not to inquire into proceedings of Parliament -(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers 8 212. Courts not to inquire into proceedings of the Legislature - (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers 9 105(2). Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof- No member of Parliament shall be liable to any proceedings in any court in respect of

and 194(2)10 on the other hand, protect the legislators from interference of the courts

with regards their freedom of speech and expression.

Thus the Constitution of India, tries its best to inculcate Montesquieu’s theory of

Separation of Powers, but what actually happens when the Judiciary actually over

steps? And what exactly is ‘overstepping by the judiciary’. These questions have

remained unanswered by the Constitution.

Judicial review is a significant source of Judicial Activism. One can say that the seeds

of Judicial Activism were sown in Judicial Review. Though in India, the Constitution

does not specifically mention the power of Judicial Review, but it does mention that

any act violative of Fundamental Rights can be declared unconstitutional. Thus the

Judiciary can override the powers of the Legislature through Judicial Review. In India

power of Judicial Review is now considered to be a basic feature of the Constitution11.

Initially the power of Judicial review was limited to checking the acts or decisions

affecting fundamental rights, but lately the Judiciary has also started expressing its

concern in matters relating to social, developmental and environmental issues.

It could be easily said that the Emergency of 1975 and the period immediately

thereafter constituted defining moments for Judicial Activism in India. The infamous

ADM Jabalpur v Shukla12, popularly known as the Habeas Corpus case was decided

and was a blow to the civil liberties in India. The suspension of Article 21 prohibited

the challenging of any detentions made during that time. The Constitution was also

amended to permit the excesses of the Emergency. The Decision was strongly

condemned and “Judicial Activism” had a strong moral basis after the Emergency.

Judicial Activism vs. Judicial Over Reach

Having understood the meaning of the word Judicial Activism, it would be legitimate

to say that the line between the terms Judicial Activism and Judicial Over Reach is

difficult to draw. As the former Chief Justice of India, Justice Ahmadi has stated

anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings 10 194(2). Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof-No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings 11 Kesavanand Bharti v. State of Kerala ,AIR 1962 SC 93312 AIR 1976 SC 1207

“Sometimes this Activism has the potential to transcend the borders of Judicial

Review and turn into populism and excessivism”. Activism according to him , is

“populism when doctrinal effervescence transcends the institutional capacity of the

judiciary to translate the doctrine into reality, and it is excessive when a court

undertakes responsibilities normally discharged by other coordinate organs of the

government”13

Thus to one judge it maybe Activism while to the other it may be Over Reach. Or to

ones who may agree with the Judgement it maybe Activism and to those who disagree

it maybe Over Reach. It is difficult to lay down strict guidelines as to when it would

be Activism and when the Judiciary might be over reaching. But if we have a look at

some of the provisions of our Constitution like Article 32(Right to Constitutional

Remedies in the Supreme Court directly for enforcement of all fundamental rights),

Article 226 ( power of high courts to issue certain writs) and Article 227 (power of

superintendence over all courts and tribunals by the high court), just goes to show that

the basic document of governance- our Constitution has provided for these

overreaching provisions. The Constitution has placed that responsibility of Judicial

Governance in the Judges of higher judiciary.

The entire concept of Judicial Activism could be said to be justified, because of

judiciary’s non elective character, due to which it can overcome counter majoritarian

– difficulties. Otherwise why neither the Executive nor the Legislature but only the

Judiciary alone should be the enforcing institution? It is because Judiciary is that

branch of the government with greatest institutional capacity to enforce the legal

norms in a disinterested way. The Legislature and the Executive because of their

vested interest of seeking re-election are prone to ignore constitutional limits to

pamper the electorate.

According to former Chief Justice of India Justice R.C Lahoti-

“ The true test of the legitimacy of any legislation was not weather it was made by

elected representatives but that was in conformity with the general will or the true

13 DR K.N Katju Memorial Lecture on ‘Separation of Powers and Judicial Activism in India’, New Delhi,26 April 2007

common good, and the general will or the common good could only be discovered or

formed by a process of dialectical reasoning.”

He gave the following reasoning for justifying the law making of the Judiciary-

1. Judges are fit candidates to make law since the rational dialectic comes

naturally to common law judges

2. Judicial decisions stand and fall on the strength of their reasons, and the

judicial law making role is more interactive and broad based than is usually

assumed.

3. Further, benefit of such law making is that it provokes the legislature to act, in

which case legislature maybe persuaded to replace the ad hoc legislation with

more comprehensive and proper legislation.

4. A great strength of the Judiciary in law making was that it is not elected and so

not beholden to vote banks.

5. Finally he gives a constitutional justification, that judges in India are bound by

their oath as Judges to play an active role in law making.

Judicial Activism in a modern democratic set up is to be looked upon as an agency

to curb legislative adventurism and executive tyranny by enforcing Constitutional

limits. Approach to Judicial Activism could be either negative or affirmative. It is

negative when the Judiciary declares the acts of the Legislature and Executive as

intra vires or ultra vires depending on its conformity with the Constitution. An

affirmative approach on the other hand is when the Judiciary sitting over to decide

the validity of a legislative measure or an executive action interprets the

constitution in such a way that it goes beyond the constituionalised value

judgements.

Issues and Concerns

The following are the main issues or areas of concern with an activist Judiciary-

1. Where the Judiciary interferes with the functions clearly of administrative

or legislative nature, in such cases, is the Judiciary responsible /

accountable to anyone for the discharge of such functions and what are

constitutional and legal sanctions behind such orders made and directions

given by courts, by way of Judicial Activism?

2. The dilution of the theory of Separation of Powers is inadvertent when

there is an activist Judiciary. The critics believe that it goes against the

Constitution.

3. Judicial Activism could be used by the current day political establishments

to get their interests protected. And thus their could be misuse of the

Judicial Process.

I.Accountability of Judiciary

One of the main concerns for the critics of Judicial Activism is that the law making

done by judges is no good till it is brought into effect. The Law making organ of the

government -the Legislature has the means of making laws and bringing them into

effect, unfortunately the Judiciary does not. So what happens when the Judiciary

makes a law but fails to effectively implement it because of lack of means to do so?

S.P Sathe in his book Judicial Activism in India-Transgressing Borders and Enforcing

Limits 14makes a difference between Judicial Law making in the ‘Realist Sense’ and

‘Non Realist Sense’. He says that Judicial Law making in the realist sense is what the

Court does when it expands the meanings of the words ‘personal liberty’ or due

process of law’ or ‘freedom of speech and expression’. When the Court held that a

commercial speech (advertisement) was entitled to protection of freedom of speech

and expression15, it was Judicial Law making in the realist sense. When however the

Court lays down guidelines for inter-country adoption, against sexual harassment of

working women at the work-place, or abolition of child labour, it is not judicial law

making in the realist sense but amounts to legislating like a legislature. Sathe terms

this as judicial excessivism.

It is when such law making is undertaken by the Judiciary that the question of how to

implement the law arises. If the Legislature passes legislation to the effect, it would be

a picture perfect scenario. But when the Legislature refuses to take an action, there is

a vacuum that’s created between the law pronounced in the Judgement and its actual

implementation. A court is not equipped with the skills and competence to discharge

functions that essentially belong to the other co-ordinate organs of the government.14S.P Sathe, Judicial Activism in India –Transgressing Borders and enforcing Limits , 250 (Oxford University Press, India, Second Edition,2010)15 Tata Press Ltd. V. Mahanagar Telephone Nigam (1995) 5 SCC 139

The second question that arises is whether such legislation by the Court is desirable?

Of course this can be answered in context with Separation of Powers Doctrine, which

shall be dealt with shortly. But the desirability of such a legislation can be contested

vis a vis the fact that such law making by the court might not see all future

requirements and might have been made without taking into consideration various

viewpoints. For e.g. Vishakha’s case16 ,where guidelines agaimst sexual harassment at

work were laid down. It took the Legislature over a decade to contemplate Legislation

to the effect. The Court did lay down the guidelines, but only the Legislature had to

think through what would happen in case of breach of such guidelines, what would be

the penalties that would be imposed, what would mean by the term ‘sexual

harassment’, whether only women could be liable to be sexually harassed at

workplaces and many such concerns. As Justice Srikrishna recognized in one of his

lectures that “the answers to many socio-economic political problems lie with the

Parliament and in a polling booth and not in a courtroom and that such activism

strains the institutional resources of the court. It also diverts the time, talent and

energy of Judges into channels that they are neither required to navigate, nor

equipped to, for lack of competence, skill or resources.”

Thus the discussion boils down to the basic question of what laws, principles would

be applicable to the Judiciary in deciding matters which are essentially pertaining to

other organs of the states? And what is the method or procedure provided by the

Constitution or any law for the enforcement of such orders passed by the courts?

Thus the entire mechanism for implementing such laws and ensuring that they are

followed and in case of breach, imposition of penalties –is not available with the

Judiciary. The danger of Judiciary creating a multiplicity of rights without the

possibility of adequate enforcement will, in the ultimate analysis, be counter

productive and undermine the credibility of the institution. When laws that are

pronounced cannot be implemented, the entire process of making such laws becomes

a sham. To conclude this section, I quote Arun Shourie from his book ‘Courts and

their Judgements’17-

16 Vishakha v. State of Rajasthan ,AIR 1997 SC 301117 Arun Shourie, Courts and their Judgements,404 (Rupa & Co,New Delhi, First Edition,2008)

‘But to deliver a remedy requires the sorts of things that are beyond the

reach of Judges. It requires resources that the Courts do not have. It

requires time and energy that the mountain of cases which weighs down

each Judge will not allow him to spare. It requires whipping other

institutions into doing their job-whipping of a degree that Courts have

not shown the inclination to inflict.

II.Separation of Powers

Separation of Powers (the “Doctrine”) as envisaged by Montesquieu has been held as

one of the basic features18 of our Constitution. The dilution of the Doctrine is another

issue with the critics of Judicial Activism, so much so that it has been felt that Judicial

Activism is contrary to the Constitution. The critics while pointing out the dilution of

the Doctrine have conveniently failed to understand that the line which divides the

Judiciary from the Legislature and the Executive is bold sometimes, at times its faint

and completely invisible at other times. There could be five categories of Judicial

Action which could be further categorised into Activism and Excessivism-

1. Minimal Judicial action and literal interpretation (staying within

Montesquieu’s limits). Under this the Judiciary can traverse only territory

demarcated for them by the legislature and the executive, and as such there is

no controversy, neither there is any scope of any controversy.

2. Creative or purpose interpretation, for instance expanding the meaning of

certain terms.

3. The Oversight Function over the Executive: Executive action or

malfunction: Filling in gaps and exercising oversight over the executive

inaction.

4. The Oversight Function over the Legislature: Making common law, ad hoc

legislation where legislature fails to legislate, or there are lacunae in existing

legislation and passing orders and directions and reviewing functioning of the

legislature.

5. Creative interpretation which amounts to rewriting the Constitution.

18 Kesavanand Bharti v. State of Kerala ,AIR 1962 SC 933

In the first point above one could say that it is in such cases that the line between the

Judiciary and other organs of the state is bold and visible. In the second point the

controversy begins, as the dividing line between the Judiciary and the other organs

starts becoming fainter. This is the grey area which is neither black nor white.

Whether it is Activism or Excessivism on the part of the Judiciary, is difficult to

gauge in such a situation. In the third, fourth and fifth points the line becomes

invisible as the Judiciary takes over the functions of Policy Making and Policy

Executing.

There is no straight jacket formula which will help in arriving at a conclusion that

Judiciary has overstepped or it has been well within its limits. A case, how decided is

dependent on how a judge perceives it and integrates his wisdom with the law of the

land to arrive at a conclusion. So there is no objectivity but only subjectivity that

becomes a deciding factor to determine whether the Doctrine has been diluted or not.

Glaring examples of Judiciary overstepping its limits and stepping in to the area of the

executive has been orders passed by Honourable Delhi High Court on subjects

ranging from age and other criteria for nursery admissions, unauthorised schools ,

begging in public, auto rickshaw overcharging, size of speed breakers on the road.

These are clearly policy areas, where the Judiciary has interfered and legislated.

The Jagadambika Pal case of 1998 involving the Uttar Pradesh Legislative Assembly

and the Jharkhand Assembly case of 2005 are again, two glaring examples of

deviations from the clearly provided constitutional scheme.

It is believed that the framers of our Constitution took care to provide for an

independent and impartial Judiciary as the interpreter of the Constitution and as the

custodian of the rights of the citizens through the process of Judicial Review, which

permits the Judiciary to interpret laws but not lay them down. Judicial review is much

stricter a concept, whereas Judicial Activism, as the name suggests is much wider in

scope. The framers, it is true, only permitted to enquire into any legislation or an

executive action. But Judicial Activism tends to hijack the functions of the other

organs and act upon it.

The question then arises is that why would Judiciary overstep? And the answer to this

is given by Sathe very clearly-

‘Those Indians who finding that the legislatures and the executive s are not

responding to their grievances turn to courts for protection against injustice from a

class-structured polity, and secure some relief, however paltry, have begun to look to

the Court as their own choice. Sathe further adds that ‘Judicial process is expensive

dilatory and technical and if it is preferred despite such inherent defects, it is only

because the other avenues of redressal have become ineffective and unreliable.’

This is how the entire concept of Public Interest Litigation came up and it sprouted

from nowhere but from an Activist Judiciary.

Fali Nariman in his autobiography- ‘Before Memory Fades’ 19states something similar

on the lines of what Sathe has mentioned above. According to Nariman, ‘judicial

over-reach’ is the direct consequence of legislative and executive ‘under-reach’: i.e.

poor performance in the making of laws and particularly in their execution. He also

states how judicial power keeps vacillating according to the need of the times. For

instance during the period of emergency of 1975 it had completely contracted.

Having stated the reasons for the Judiciary overstepping, the pertinent question here is

whether this overstepping is diluting the Doctrine and thus being contrary to the

Constitution? The question can be answered in the light of the following parameters-

1. True Constitution, although makes separate provisions for three organs of the

state, does not place them in watertight compartments.

2. The Constitution by virtue of Article 14220 gives extensive powers to the

Supreme Court in exercise of its jurisdiction to pass any decrees or make any

19 Fali.S.Nariman,Before Memory Fades-An Autobiography, ( Hay House Publishers (India) Pvt. Ltd.,2010)20 142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose

of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

orders for carrying out justice. As Justice Vivian Bose has described this

power granted by Article 142 as the ‘flaming sword’ in an elegant prose21-

“We have upon us the whole armour of the Constitution and walk

henceforth in its enlightened ways, wearing the breast plate of its

protecting provisions and flashing the flaming sword of its

inspiration”

The Constitution instead of putting the organs into watertight compartments , gives

them a leeway to move around , especially the Judiciary by way of Article 142 and by

holding Judicial Review as the basic feature of the Constitution. The issue then is not

whether diluting the Doctrine is contrary to the Constitution, but how far can the

doctrine be diluted or what are the permissible limits of such dilution. The content of

Judicial Power is not defined in our Constitution. If cases where the Courts have laid

guidelines for say inter country adoption, or guidelines against sexual harassment at

work etc have been treated as not a legitimate judicial function, then does that mean

that the Judiciary is only there to interpret law as intended by the legislature? Would

there be any scope of interpretation? Would there be any conflict if all the law has to

be interpreted as per what the legislature had intended to? True the Judiciary cannot

cross the line of separation to the extent that it usurps the powers of the other organs.

But the above mentioned guidelines by the Courts are examples of instances where

the legislature did not legislate at all. And also the guidelines laid down by the

Judiciary become the law of the land only when, even after having given such

“GUIDELINES”, the legislature fails to take any step to fill in the gap. After all the

Courts have not enacted a law, they have merely given a framework for the

legislature as some food for thought. Failure of Legislature to act even after having

been given guidelines cannot be held against the Judiciary under the garb of diluting

the Doctrine of Separation of Powers

III. Influence by political establishments

21 Fali.S.Nariman,Before Memory Fades-An Autobiography,369 ( Hay House Publishers (India) Pvt. Ltd.,2010)

A judicial decision either stigmatises or legitimises a decision of the legislature or the

executive. Benjamin Cardozo22 has said –

‘The restraining power of the judiciary does not manifest its chief worth in the few

cases in which the legislature has gone beyond the lines that mark the limits of

discretion. Rather shall we find its chief worth in making vocal and audible the ideals

that might be otherwise silenced, in giving them continuity of life and expression, in

guiding and directing choice within the limits where choice ranges’

That is the power of Judiciary that Cardozo envisages. Thus a judicial decision needs

to be neither politically motivated, nor politically inclined, since it is through its

decisions that the court changes the existing power relations, judicial activism is

bound to be political in nature. Through its decisions the constitutional court becomes

an important power centre of democracy. Thus a politicised judicial pronouncement

not only strikes at the roots of the democracy but a tainted judiciary can never do

justice.

It is natural for the critics of Judicial Activism to fear an influence of the current

political establishment on the Judiciary.

A very glaring example has been the entire period of emergency of 1975 when the

Judiciary was almost controlled by the Legislature. The emergency brought in severe

restrictions on an individual liberty and judicial review.

Another example which explains how the political establishment influences the

Judiciary is the Rent Control legislation, which was enacted in the Second World War

when housing became scarce. Over the years the legislation became counter

productive to the interests of the landlords, as they could not cover basic expenses

through the rent. They thus preferred keeping their houses vacant. Their was a need to

update the law, since the legislature did not act the case came up to the Supreme

Court. The case was that of Malpe Vishwanath Acharya v Maharashtra23 and the

court held that the Bombay Rent Control Act enacted in 1947, which froze the rents

payable by tenants to the amount payable in that year, imposed an unreasonable

restriction on the right to carry on any trade or business guaranteed by article 19(1) 22 S.P Sathe, Judicial Activism in India –Transgressing Borders and enforcing Limits , 271 (Oxford University Press, India, Second Edition,2010)23 (1998) 2 SCC 1

(g) of the Constitution. The Court thus asked the government not to extend that law

and enact a law that would give adequate returns to the landlords. Since it is the

function of the legislature and not the judiciary to make laws an embarrassing

situation had emerged by such pronouncement of the Court. A fierce agitation was

launched on behalf of the tenants against the government’s intention to revise the law

in favour of the landlords. The following were the major issues with the judgement-

1. It was a question of Policy.

2. The matter belonged to the Legislature and it suited them to get the matter

sorted out through the judicial process.

3. The Court had merely obliged the political establishment of the day, then.

The purpose of setting forth this case was to depict lucidly how the judiciary, if does

not practise self-restraint can be a puppet in the hands of the Legislature. Though the

irony is that on the face of it, it seemed, in the above case, that the Judiciary directed

the Legislature, but analysing it one realises that the Legislature actually, through the

judicial process, sorted the matter in its own interests.

Conclusion

As we can see the Doctrine of Separation of Powers runs as a thread in all the major

areas of concern discussed above. In a way it is actually the Doctrine which raises a

major concern and the other concerns flow out from it. Be it the infrastructure

missing for the Judiciary to implement the laws or whether the Judiciary is influenced

by the political establishment of the day, Separation of Powers is at the root. And

when exactly does the Judiciary dilutes the doctrine and crosses the limits is not

defined.

If the intention of the framers of the Constitution was to not let the Judiciary legislate,

it could have placed all three organs in separate water tight compartments, which it

has very clearly not. Even the framers of the Constitution intended to give space to

the Judiciary to move around and about the line of separation. Though there are

examples of the Legislature exercising the Judicial Power- for instance in the disputes

arising out of the 10th Schedule of the Constitution. And similarly the Executive while

exercising statutory and discretionary powers takes up adjudicatory role and also

makes laws by way of subordinate legislation or by promulgation of Ordinances in

terms of Article 123 and 213 of the Constitution. But it is only the Judiciary which is

by way of Article 142 given wide powers to pass orders or decrees in furtherance of

Justice. That’s the trust that the framers have placed in the higher Judiciary. And such

a trust has to come with responsibility. Because without responsibility such trust can

become tyrannical and the consequences a havoc for a democracy.

The legitimacy of the Court and Judicial Activism is derived from the faith that

people repose in the Judiciary and thus Courts have to continuously strive to maintain

their legitimacy. Also one has to understand that Judges after all are human beings

and to err is only human. An activist Judge has to be prepared to take criticism of his

judgements. This is done by jurists and lawyers and, at a more mass level by media

etc. This is an important tool to keep a check on the fact that the trust that the framers

of the Constitution have put in the Judiciary of the country, is respected and is

maintained with responsibility. While answering a question about corruption and

accountability and refuting the charges that judiciary does not represent the will of the

people, Justice Y.K Sabharwal said in an interview24

“When the Supreme Court declares that executive and the legislature has exceeded

its limits and crossed province the judgement is a decision on behalf of “We the

people of India,” to whom the legislature and the executive are accountable”

It is not denied that the Separation of Powers is a basic feature of the Constitution of

our country and it should be respected. But at the same time Judicial Activism cannot

be curbed. Judicial Activism provides a safety valve in a democracy. Just a few

concerns need to be addressed so as to prevent Judiciary from usurping the powers of

the other organs. For instance more transparency in the appointments in the Judiciary

will generate more faith in the Judicial System of the country. The Guidelines that are

provided for in the judgements, where no legislation exists, could be treated as an

interim arrangement. And instead of accusing Judiciary of Over reach, a mechanism

to concretise such guidelines into legislations actively, should be devised. Areas

where the Judiciary is required to decide in favour of the political establishment of the

day, the best mechanism would be ‘self-restraint’ on the part of Judiciary. The

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

panacea for the so called evil ‘over-reach’ is with the Judiciary itself and ‘self –

restraint’ is the best form of keeping a check on itself.

To conclude I quote Anil Divan, Senior Advocate Supreme Court –

“That plants slowly nurtured by judicial craftsmanship have grown into sturdy trees

and have blossomed with colourful and fragrant flowers. Judicial Activism has added

much needed oxygen to a gigantic democratic experiment in India by the alchemy of

judico-photosynthesis”

BIBLIOGRAPHY

Books

1. S.P.Sathe , Judicial Activism in India-Transgressing Borders and

Enforcing Limits ( Oxford University Press, India, Second Edition 2010)

2. Fali.S.Nariman, Before Memory Fades-An Autobiography (Hay House

Publishers (India) Pvt. Ltd.,2010)

3. Arun Shourie, Courts and their Judgements (Rupa & Co,New Delhi, First

Edition,2008)

Articles

1. Susanta Chatterji , “For Public Administration”: Is Judicial Activism

Really Deterrent to Legsltaive Anarchy and executive Tyranny?,The

Administrator,Vol. XLII April-June 1997.pp9-24

2. Dr P.S.Lathwal,Good Governance VIS-À-VIS Judicial Activism,M.D.U

Law Journal,Vol.X,Part-I,2005

3. Satyabrata Sinha, “Judicial Activism:Its Evolution and Growth”, in Prof

D Banerjia , Judicial Activism-Dimensions and Directions (Vikas

Publishing House Pvt. Ltd,New Delhi,First edition 2002)

4. P.M. Bakshi , “ Judicial Activism”Some reflections” , in Prof D

Banerjia , Judicial Activism-Dimensions and Directions (Vikas

Publishing House Pvt. Ltd,New Delhi,First edition 2002)

5. P.P.Rao,”Judicial Activism”Its Positive and Negative Aspects”, in Prof

D Banerjia , Judicial Activism-Dimensions and Directions (Vikas

Publishing House Pvt. Ltd,New Delhi,First edition 2002)

6. P.S.Reddy,”Judicial Activism:Misnomer or New Matrix of Justice”, in

Prof D Banerjia , Judicial Activism-Dimensions and Directions (Vikas

Publishing House Pvt. Ltd,New Delhi,First edition 2002)

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Hindu , July 18, 2009