constitutionality of judicial activism

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CONSTITUTIONALITY OF JUDICIAL ACTIVISM

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INTRODUCTION

Judiciary is said to be the weakest organ of the democracy. One of the reasons for this

type of believes is because it has neither the power of purse nor a sword. It simply

functions on the faith of people. The legitimacy of its decisions is drawn from the

public faith. In this modern time when the function of government has increased

thousand times, people now expect from government to take care of it from cradle to

grave. The function of judiciary is also bound to increase. Law cannot afford to bestatic and so the judiciary. The purpose of giving justice cannot be solved by simply

interpreting law in modern times. Law should be interpreted in such a way so as to

satisfy needs of our society. In a very recent judgment, Delhi High Court legitimated

the marriage of a 17 year girl with her boyfriend, asserting that no law in India

prohibits love marriage and the girl would not have been safe at her parental home.

The Court kept in mind the atrocities done with the couples who run away from their

home in love. If the goal would have been only to interpret the law the Court would

have easily invalidated the marriage on the ground that girl was not an adult but that

would not have served the purpose. Court should see what is in the best interest of the

society. This is the basis of Judicial Activism. Court is undoubtly transgressing its

limit but they are compelled to do so. This paper attempts to find the legitimacy of

this Judicial Activism in India. No wonder, the judiciary gets legitimacy from the

public. But the question is whether public is competent to justify the decision of

Courts. In common law system law is very complicated. Even lawyers at times find

difficulty in understanding basis of many decisions. Further, loads of legislations and

complicated procedure. All these things are hindrance in getting a proper criticism of

judicial decisions. However, through media and modern techniques people are getting

required informations to view a particular decision from independent point of view.

But that is not enough. Finally, the question of accountability of judiciary is also an

important area for discussion. Just like other two organs of the Government judiciary

should also be made accountable; to prevent it from becoming arbitrary because

power corrupts and absolute power corrupts absolutely Judiciary should be


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accountable to the public but its independence and integrity should not be touched.

This may put the process of delivering justice in danger.

METHODOLOGY_____________________________________________________________________

The methodology adopted in this project work is both Doctrinal and Secondary

Electronic research. The project involves theoretical study of the status of judicial

activism in India and its legitimacy.


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________________________ _________________________________

CHAPTER-I

MEANING OF JUDICIAL ACTIVISM

___________________________________________________________

Judicial Activism in most simple terms can be defined as a step forward to judicial

review. Judicial review means overseeing by the judiciary of the exercise of power by

other co-ordinate organs of government with a view to ensuring that they remain

confined to the limits drawn upon their powers by the Constitution.1 In fact the term

Judicial Activism is so vague that it is very difficult to carve out any precise

definition of it. In the third International Conference of Appellate Judges held in New

Delhi, in 1984, some of the Judges confessed that they do not clearly understand what

is meant by judicial activism.2

From a critical point of view, Judicial Activism is

nothing but exceeding the constitutional brief of interpreting and applying the law as

it is, and taking over executive and legislative functions in violation of the

constitutional scheme of the separation of powers.3

In spite of its vagueness, judicial

activism has been defined by several scholars and jurists. Judicial activism as defined

by Black Law Dictionary4 as a philosophy of judicial decision making where by

judges allow there personal views about public policy, among other factors, to guide

their decisions, usu. with the suggestions that adherents of this philosophy tend to find

constitutional violations and are willing to ignore precedents. Legal scholars like

Cass Sunstein and Paul Gewitz have defined activism as any judicial decision to

strike down legislative acts.5 But this definition can be criticized on the basis that it is

attach with legislative acts only. Further it can also be argued that striking down a

legislative act is activism only when done on the basis of judicial bias or based on a

1Sathe S.P.,Judicial Activism In India,( Oxford University Press,2002)

2Bhatacharjee A.M.J.,Judicial Activism And The World-Judges Conference, ( 1984) 3 SCC (J) 1,p.5.

3Sawant P.B.,Judicial Activism: Trends And Prospects in Kashyap C. Subash,Judicial Activism And

Lokpal( Uppal Publishing House,1997)

4

Ed. By Garner A. Bryan,Blacks Law Dictionary ( West Group Publication, 7th

ed.,2002)

5Accessed from http://en.wikipedia.org/wiki/Judicial_activism on 21.02.2007 at 3pm


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constitutional theory. J.S.Verma, the former Chief Justice of India, defines Judicial

Activism as the process by which new juristic principles are evolved to update the

existing law, to bring it in conformity with the current needs of the society, and,

thereby, to sub serve the constitutional purpose of advancing public interest under the

Rule of Law.6 Undoubtly this definition gives a clear picture of the judicial activism

from a jurist point of view, but the present trend of judicial activism also defies this

definition. Many a time in recent past judges in the name of enforcing rule of law has

tried to enforce rule of judges. Judicial Activism can be best described as creative

interpretation of law to meet the requirements of justice.

6Verma J.S.,New Dimensions of Justice ( Universal Law Publishing Co. Pvt. Ltd., 2000 Ed.)


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___________________________________________________________

CHAPTER-II

REASONS FOR THE GROWTH OF JUDICIAL ACTIVISM

While dealing with the scope of judicial activism J.S.Verma, the former Chief Justice

of India and also former Chairman of National Human Rights Commission, deals with

the question of the need of judicial activism. He explains that the primary cause of

judicial activism is the inaction of the authorities. However, the exercise being for

public good, it generally has public support. Most of the jurists agree that judicial

intervention is increasing since legislature and executive are not performing their

work properly. A survey of public interest petitions shows that people have gone to

Courts because there was no means available. The governments are no longer

responsive to their protests. Even if a government is performing efficiently, judicial

activism is necessary to protect the rights of powerless minorities.7Judicial Activism

is a delicate exercise involving creativity. Great skill and dexterity is required for

innovation. Anthony Lewis, has observed that basic reason for the growth of Judicial

Activism, is change in the outlook of judges and the function they perform. 8 The

reasons given in the analysis made therein, are; (a) the judges realize that there is

vacuum since the Parliament is virtually under the control of executive when it was

supposed to correct any Governmental injustice to individual (b) the modern

legislation is loosely drafted and delegates large powers to the Government which

tends often to be arbitrary in its exercise. (c) the new generation of judges think of law

not as fixed rules but as a set of values designed above all to protect democracy and

human rights. The transgressing of borders laid down by the doctrine of separation of

powers by the judiciary is because of the peoples perception that judicial intervention

is the only feasible correctional remedy available. It is primarily this perception of the

people which brings the acceptance of judicial activism in India as the pragmatic

7

Sathe S.P.,Judicial Activism In India,( Oxford University Press, 2002)

8Judges In Britain Create A flutter, Times of India,(Bombay Ed., dated 7 November 1995)


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means of realizing the full promise given by the guarantee of Fundamental Rights and

the mandate of the Directive Principles in the Constitution of India.9

The basic reason for the growth of judicial activism in India is the tendency of Courts

to control the functioning of Government, when it exceeds its power and to protect

any abuse or misuse of power by government agencies. It is inevitable reaction to

check misuse of public power. Classic example of this is Indira Gandhi v. Raj

Narain10 case, in this case clause (4) of Article 329-A was inserted by the Thirty-

Ninth amendment, which made election to the post of Prime Minister beyond any

judicial review. That amendment was obviously passed with a view to preventing

scrutiny of Mrs. Gandhis election to the Lok Sabha by the Court.11 This was gross

misuse of public power by the government. The Supreme Court unanimously held

that amendment was unconstitutional.

The legitimacy of judicial review increased when the Courts started entertaining

public interest petitions against government lawlessness. In Vineet Narain v. India12

Court directed as to how the Vigilance Commission should be appointed, it was

certainly beyond its power. Having become absolutely helpless against growing

corruption and misuse of power by persons holding positions of power , the people

saw a ray of hope in judicial intervention.13 Yet another reason for the judges being

active is the denial of natural justice doctrine. InManeka Gandhi v. Union of India14 ,

Justice Krishna Iyer observed Natural Justice is a distillate process. There have

been significant changes in the causes of judicial activism since 1950.

9Independence of Judiciary- Some LatentDangers, Justice P.K.Goswami First Memorial Lecture , at

Guwahati on 18 November 1995

10AIR 1975 SC 1590

11Sathe S.P,Judicial Activism In India, ( Oxford University Press, 2002)

121998 1 SCC 226

13

Supra at 11, p.278

14AIR 1978 SC 597 at 619


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________________________________________________________

CHAPTER-III

AREAS OF JUDICIAL ACTIVISM

___________________________________________________________

Judicial activism in India can be broadly divided in to two periods, the first period is between 1950 to 1975 and second period begins from 1975 i.e, after emergency.

During first two decades of our Constitution, Courts were very conservative and

activism was confined to a few cases on right to property. On the other hand, the court

was extremely positivist in cases regarding personal liberty. Since the 1970s, we do

not find judicial activism on right to property because the right was removed from the

list of fundamental rights. From the late 1950s, however, the court started perceiving

the larger dimensions of its constitutional role. This movement from a positivist court

to an activist court was slow and imperceptible and came to be noticed only during

the late 1970s.15 In the late 1950s, although Courts did try to play larger role in

protecting Indian democracy but even in these cases court found bound by the

limitations of the text of the Constitution. Courts never tried to claim that it had

authority to oppose the positivist approach to constitutional interpretation. The

amendment of Indian Constitution started soon after the enforcement of Constitution.

This required the analysis of the amending power of the Parliament. One of the major

instances of judicial activism in India was Keshvananda16

case. Keshavanda

overruled the decision given in Golakh Nath17

case and held that the amending power

of Parliament cannot be limited by fundamental rights but also ruled that there are

implied limits which could not be used to alter the basic structure of the Constitution.

The theory of implied limits in the amending power with reference to the basic

15Sathe S.P.,Judicial Activism In India, (Oxford university press,2002), p.52,53

16

AIR 1973 SC 1461

17AIR 1967 SC 1643.


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features of the Constitution propounded in Keshvanand was the first great act of

judicial activism by the Supreme Court of India.18 Another area of judicial activism in

India is in establishing Rule of Law. The Constitutional scheme with the Rule of Law

as an essential feature was judicially recognized in this manner from an early stage.

Right to equality was combined with the English doctrine of Rule of Law in

Basheshwar Naths19

case. It was held that the Rule of Law is an essential feature of

the Constitution of India; and absolute discretion in matters affecting the rights of the

citizens is repugnant in the Rule of Law.20

One of the favorite areas of the activist

judges have been the interpretation of Constitution. The concept of equality in

Article 14 and the meaning of the words life, liberty, law in Article 21 have

been considerably enlarged by judicial decisions. Anything which is not reasonable

just and fair is not treated to be equal and is, therefore, violative of Article 14. The

word life has been construed to mean life with dignity and not mere physical

existence. Liberty has been construed in the manner envisaged in the preamble, that

is, liberty consistent with the social norms. The word law means a law which is fair

in content and procedure. It has been held that the validity of a law contemplated by

Article 21 must satisfy the test of Articles 14 and 19.21 The requirement that every

State action must satisfy the test of fairness; consideration of every legitimate

expectation in decision-making is necessary to satisfy the rule of non arbitrariness ;

and absolute power in any individual is anti democratic , are judicially evolved

principles which form part of the constitutional law.22

Right to speedy trial has been

held to fall within the guarantee of Article 21.23 Similarly, domiciliary visit by the

police without authority of law, was held to be violative of Article 21, assuming right

to privacy as a fundamental right derived from the freedom of movement under

Article 19(1) (d) as well as personal liberty under Article 21. Abolition of child labour

has been held to be the obligation of the State and the practice of child labour has

18Verma J.S.,New Dimensions of Justice (Universal Law Publishing Co. Pvt. Ltd., 2000 Ed.),

19AIR 1959 SC 149

20State of M.P v. Bharat Singh,AIR 1967 SC 1170: Satwant Singh Sawney v. D.Ramanathan ,AIR

1987 SC 386: and S.G.Jaisigani v. Union of India, AIR 1967 SC 1427

21Smt. Maneka Gandhi v.Union of India,AIR 1978 SC 597

22

Kumari Shrilekha Vidyarthi etc. v.State of Uttar Pradesh & ors. AIR 1991 SC 537

23Hussainara Khatoon v.State of Bihar, AIR 1979 SC 1360


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been held to be a violation of human rights.24

The doctrine of public trust has been

introduced by judicial decisions wherein the Fundamental Rights guaranteed in the

Constitution have been construed to require protection from arbitrariness and

misfeasance of public authorities in exercise of public power.25

Another major area of Judicial Activism is through PIL. By the concept of PIL, the

Courts have changed the concept ofLocus Standi. Supreme Court hears cases even on

a post card. Land mark judgments and Social improvement has been done through

PIL.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Judicial review of administrative action has been traditional function of the Courts.

After World War, Courts became more vigilant and demanded that although they

would not substitute their decision for that of the decision of the administrative

authority, they would require the administrative authorities to satisfy them that all

relevant matters had been considered . This is known as Wednesbury principle.26

With

the advent of the welfare state and increase in the powers of executive , the Courts

started asking for stricter standards of reasonableness from the executive. In India

courts have always required proportionality test27

where restrictions are imposed on

fundamental rights. However, in cases where an administrative action has no adverse

effect on fundamental freedoms, the scope of judicial review of administrative action

will be limited. The Court will not exercise close scrutiny and would not make

primary judgment as to the choices made by the administration. In such situation

judicial review will be confined to Wednesbury rules. In India it was believed that

proper check on the administrative actions should be political. Abuse of power by the

President who acts on the advice of the Council of Ministers has to be checked by the

political process. In parliamentary democracy, such checks are inbuilt. In 1977, the

Supreme Court opened the door slightly for judicial review on limited grounds of

ultra vires and mala fide exercise of power , though it did not strike down the

24M.C.Mehta( child labour matter) V. State of Tamil Nadu, ( 1996 ) 6 SCC 756.

25Verma J.S. , New Dimensions of Justice, ( Universal Law Publishing Co. Pvt. Ltd., 2000 Ed).

26

Associate Provincial Pictures Ltd. V. Wednesbury Corporation ( 1948) 1 K.B. 223.

27Union of India v. G. Ganaythuam ( 1997) 7 SCC 463.


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impugned action.28

However in S.R.Bommai v. India29

Supreme Court by a majority

of six judges held that the Presidents satisfaction under article 356 of the Constitution

was justifiable. In Canara Bank v. V.K.Awasthy30

, the apex Court had the opportunity

of explaining the scope and ambit of the power of judicial review of administrative

action. The Court held that an administrative action if adversely affects fundamental

freedoms of articles 19 and 21 of the Constitution , then the extent of judicial review

will be extensive and the Court would make primary judgment and close scrutiny of

the administrative action. Hence the power of judicial review will be exercised on the

grounds of illegality, irrationality, procedural impropriety and proportionality.31 In

Sidheswar Sahakari Sahakhar karkhan Ltd. v. Union of India32

the apex Court was of

opinion that normally the court should not interfere in policy matter which is within

the preview of the government unless it is shown to be contrary to law or inconsistent

with the provisions of the Constitution.

28State of Rajasthan v. Union of India. AIR 1977 SC 1361.

291994 3 SCC 1

30( 2005) 6 SCC 321

31

Annual Survey of Indian Law( The Indian Law Institute, New Delhi, volume XLI, 2005)

32( 2005) 3 SCC 369


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___________________________________________________________

CHAPTER-IV

LEGITIMACY OF JUDICIAL ACTIVISM

___________________________________________________________

Conceptual meaning of legitimacy can be understood under three headings viz. a.

Legal validity b. widely shared feeling among people that they have a duty to obey the

rule c. actual obedience of law by a large number of people.33 The functioning of any

judicial system largely depends upon the public trust. If people faith is lost, judiciary

would seize to exist. So, it is public in democracy who gives legitimacy to any

judicial decision. Therefore, the third meaning of legitimacy, widely shared feeling

among people that they have a duty to obey the rule cannot be achieved until and

unless people do not have faith in the decisions of Court. Public trust is also a good

mechanism to check judicial misconduct and misbehaviour. The judiciary is the

weakest organ of the state. It becomes strong only when people repose faith in it.

Such faith of people constitutes legitimacy of the Court and judicial activism. Courts

have to continuously strive to sustain their legitimacy. What sustains legitimacy of

judicial activism is not its submission to populism but its capacity to withstand such

pressure without sacrificing impartiality and objectivity. Courts must not be only fair,

but they must appear to be fair. Such inarticulate and diffused consensus about the

impartiality and integrity of the judiciary is the source of Courts legitimacy.34

People

know that at times Courts can also give wrong decisions can exceed their powers ormay not always be fair but their experience tells them that such instances are

exceptional. This widely shared belief in the fairness of the courts is what we mean by

the legitimacy of judicial activism. Since, the power of the Court is derived from the

social legitimacy; a Court sustaining its legitimacy is in effect accountable to the

people.35

33Sathe S.P,Judicial Activism In India,( Oxford University Press, 2002)

34Ib,p.310


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The legitimacy of judicial decisions depends upon a shared perception that it is

independent and non-political. Independent means free from any influence, political,

social or economic. Legitimacy is sustained by a feeling among people that it is

independent, objective, principled and fearless.36

LEGAL VALIDITY OF JUDICIAL ACTIVISM

Courts in India have drawn the legality of their judicial activism from Constitution of

India itself. The framers of our Constitution of India provided powers to the judiciary

in Articles: Art. 32 for the Supreme Court of India and Art.226 for the High Courts in

India and armed with powers to issue directions, orders or writs and these powers

include the powers in the nature of habeas corpus, mandamus, certiorari, prohibition

and quo warranto. Supreme Court in Basappa v. T. Nagappa37 clarified that the

Supreme Court through Art. 32 and the High Courts in India through Art. 226 are

bestowed with enormous powers to exercise in issuing the writs in the nature of

habeas corpus etc., depending upon the need of the case for the enforcement of

fundamental rights. In addition to these, the Constitution bestowed a special power in

the High Court to entertain petitions for other purposes too. The veil of limitation

on the exercise of powers under Art 32 is raised by arming the Supreme Court with

Art 136, giving more and wide powers, which are hither to not found in Art 32. By

virtue of the powers conferred on the Supreme Court can entertain petitions by way of

granting Special Leave to appeal. In Sanvat Singh v. State of Rajathan38

and

Kanaialal v. Income Tax commissioner39

Supreme Court held that the power of the

Supreme Court under Art 136 could not be exhaustively defined.

COMTEMPT OF COURT

Contempt of Court is one of the most controversial ways by which Courts in India try

to draw its legitimacy. When an order of the Court is disobeyed , the power to punish

for contempt is necessary to maintain the dignity of Court. If the people can get away

35Ib p.307

36Supra at 23, p. 292

37AIR 1954 SC 440

38

AIR 1961 SC 715

39AIR 1962 SC 1323


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with defiance of the orders of the Court, the Court will lose respect and will be further

disobeyed. Sometimes critical situations arise when a politically authority disobeys

the Court and justifies its disobedience. The legitimacy of a Court depends upon the

feeling of obligation to obey that prevails among the people. Any disobedience that

goes unpunished can weaken the authority of Court and consequently its legitimacy.

A Court does not have the power of purse or sword. Its only source of power is the

feeling among the people that they are bound by it. The sanction at the disposal of the

Court for getting it obeyed is the power to punish for contempt. This power in itself is

not a great deterrent and therefore the Court wants to ensure that situation demanding

its use is rare40. Three types of restraints are imposed by the law of contempt; (a)

restriction on writing or speeches affecting matters pending in Court ( b) punishment

of defiance of Court orders. (C) punishment of scandalous attacks on the judges or the

Court. But this Power to Contempt has been criticized on several grounds in recent

times. Many time question has arisen that after all judges are also human being and

bound to err, so why they should not be criticized for their decisions. With greater

democratization of judicial process , judicial decisions are bound to be criticized at the

popular level. Media , which plays a significant role in publicizing the decisions and

discourses of the Court, also must have the right to criticize the decisions of the

Courts from the standpoint of policy and fundamental constitutional values. Such

public criticism can play a very important role in making the judges accountable.41

The corruption in judiciary can easily be checked by proper criticism of judicial

decisions. Due to this there has been amendment in the Contempt Of Court Act and

truth as a defence in cases related to contempt of Court has been added.

40

Supra at 26, p. 288

41Supra , p. 286


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_____________________________________________________________________

CONCLUSION___________________________________________________________

The discussion whether judicial intervention in the functioning of other two organs of

the government is legitimate or not has become a routine affair in the legal fraternity.

The dollar question is not about its legitimacy, but whether it is benefiting the little

man or not. Undoubtly, judicial extra intervention in the functioning of other two

organs is only due to the fact that judiciary is compelled to do so when these organs

fail to perform their duty properly. Legislature and executive are no more sensitive tothe urges and aspirations of the people. Politics has become too much constrained

with vote bank. In these conditions, common man finds judiciary as the only saviour.

And Courts too have been able to uphold their faith in this institution. The most

significant contribution of judiciary has been in establishing the rule of law in the

society. By judicial creativity to suit the Indian conditions the recent phase of judicial

activism has advanced the cause of justice, attempted to achieve the constitutional

purpose in accordance with constitutional scheme and thereby ensured the

implementation of the Rule of Law. Judicial activism is an attempt to realize hopes

and aspirations of the people and to strengthen the foundation of Rule of Law which

is the bedrock of democracy. Secondly, judicial activism has been able to fill the

vacuum made by legislation, executive and even Constitution in many cases. Take for

instance, Apex Court in Vishaka v. State of Rajasthan42 even laid down proper

guidelines in the absence of any statutory legislations. In the era of falling social

values judiciary especially Supreme Court of India has been able to maintain its

dignity. But question arises, this so called weakest organ of democracy which is

growing powerful day by day be left without unchecked. No doubt we have doctrine

of check and balance in our country, but it will not be wrong to say that it has totally

failed to check the power of Apex Court. Reason for this is simply because both

executive and legislature are indulge in corrupt practices and they are not in position

of checking power of Courts. Take most recent instance of the reservation for

backward classes case, the apex Court came very close to declare that legislature

42( 1997) 6 SCC 241


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cannot pass the bill until it is not scrutinized by the Apex body. If this type of attitude

will prevail , undoubtly it will create problem for the democratic set up of our

country. The Apex court will have to understand that rule of law does not mean rule

of judges. Parliamentarians are elected by the people to frame laws to govern the

country and they are accountable to the public at least once in five years. The

judiciary is accountable to whom? This big question is still to be answered by the

Honourable Supreme Court. Who is Supreme in a democratic country like India? Are

people of India Supreme or is it the Judiciary Supreme.?


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BIBLIOGRAPHY

BOOKS

Verma J.S. New Dimensions of Justice ( Universal Law Publishing Co. Pvt.Ltd., 2000 Ed).

Sathe S.P.,Judicial Activism In India, (Oxford university press,2002)

ARTICLES

Dangers, Justice P.K.Goswami First Memorial Lecture , at Guwahati on 18November 1995 Independence of Judiciary- Some Latent

Judges In Britain Create A flutter, Times of India,(Bombay Ed., dated 7November 1995)

constitutionality of judicial activism

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