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Judicial Activism
Judicial Activism
1
6 years
by Contributed Papers in Judicial Activism

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Table of contents

I. Table of Cases. 2

II. Table of Statutes. 3

III. Introduction. 4
IV. Research Methodology. 6

V. Judicial Activism – Meaning. 8

VI. The First Few Years…… 10

VII. After the Emergency…Departure from Positivism. 13

VIII. Public Interest Litigation – How Public is it Really and how ‘Interested’??
18

IX. Judicial Restraint – the case of the Right to Education. 25

X. Conclusion. 28

XI. Bibliography. 30

I. Table of Cases
1. A.D.M.Jabalpur v. Shiv Kant Shukla, AIR 1967 SC 1207
2. A.K.Gopalan v. State of Madras, AIR 1950 SC 27
3. A.K.Roy v. Union of India, AIR 1982 SC 710.
4. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
5. Arundhati Roy, In re, (2002) 3 SCC 343.
6. Balaji v. State of Mysore , AIR 1963 SC 649.
7. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at 231.
8. Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986)
3 SCC 156

1. Attorney General of India v. Lachmadevi, AIR 1986 Sc 467.

10. Common Cause, a Registered Society v. Union of India, (1996) 6 SCC 530

11. D.P.Joshi v. State of Madhya Bharat, AIR 1955 SC 485.

12. Delhi Judicial Service Association v. State of Gujurat, (1991) 4 SCC 406.

13. E.P.Royappa v. State of Tamil Nadu,, AIR 1974 SC 555.

14. Francis Coralie Mullin v. Administrator, U-T of Delhi, AIR 1981 SC 746.

15. Gopi Aqua Farms v. Union of India, AIR 1997 SC 3519

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

17. In re Special Courts Bill, AIR 1979 SC 478

18. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

19. Indra Sawney v. Union of India , AIR 1993 SC 477.

20. Ismail Faruqui v. Union of India, (1994) 1 SCC 265.

21. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

22. Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123

23. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404

24. Kesavanada Bharati v. State of Kerala, AIR 1973 SC 1460.

25. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295

26. Kihoto Hollohan v. Zachillu, 1992 Supp (2) SCC 651.

27. L.C.Golaknath v. State of Punjab, AIR 1967 SC 1643.

28. L.Chandra Kumar v. Union of India, (1997) 3 SCC 261.

1. Laxmikant Pandey v. Union of India, AIR 1987 SC 232

2. M.C.Mehta v. Union of India, (1991) 2 SCC 137
3. Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.

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

33. Minerva Mills v. Union of India, (1980) 3 SCC 625.

1. Narendra Kumar Singh Gaur v. Union of India, MANU/UP/0092/1998

35. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

36. Prem Shankar v. Delhi Administration, (1980) 3 SCR 855.

37. R.C.Cooper v. Union of India, AIR 1970 SC 564.

38. R.K.Garg v. Union of India, AIR 1981 SC 2138

39. R.Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

40. Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538

41. Ramana Dayaram Shetty v. International Airports Authority, AIR 1979 SC
1628

42. S.P.Sampath Kumar v. Union of India, (1987) 1 SCC 124.

43. S.R.Bommai v. Union of India, (1994) 3 SCC 1

1. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845

2. Satwant Singh v. D.Ramanathan, Assistant Passport Officer, AIR 1967 SC
1836.

46. Shankari Prasad Deo v. Union of India, AIR 1951 SC 1823.

1. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.

48. Srilekha Vidyarthi v. State of Uttart Pradesh, (1991) 1 SCC 212

49. State of Madras v. Champakam Dorairajan AIR 1951 SC 226.

50. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.

1. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.

52. Supreme Court Advocates on Record Association v. Union of India, (1993) 4

SCC 441.

53. T.M.A.Pai. Foundation v. State of Karnataka, Writ Petition (Civil) No. 317 of
1993

54. Union of India v. Association forDemocratic Reforms, (2002) 5 SCC 294.

1. Vineet Narain v. Union of India, (1996) 2 SCC 199

2. Vishaka v. State of Rajasthan, AIR 1997 SC 3011

57. Y.Srinivas Rao v. J.Veeraiah, (1992) 3 SCC 63.

II. Table of Statutes

The Constitution of India.

III. Introduction
A mere perusal of the newspapers during the past few years shows the vast
influence that courts have been wielding on our nation and its political life. Its
adjudications, affecting the very future of our country, occupy large areas of the
front page and other pages of newspapers. With the proliferation of television, the
influence of the Supreme Court has permeated every nook and corner of the
country.

The function of the Judiciary is the administration of Justice and to render the
concept of the rule of law meaningful in the democratic set-up of the country. The
process of judicial review adopted by the Courts in India involves highly
controversial issues, political and social. There can be no meaningful constitutional
democracy functioning in a country without effective and powerful Judiciary.
Political democracy without proper functioning of the Judiciary can be compared
to a body without a brain.[1] Judicial institutions have a sacrosanct role to play not
only for resolving inter-se disputes but also to act as a balancing mechanism
between conflicting pulls and pressures operating in society. Courts of law are the
creation of the Constitution and are thus the instrumentalities for fulfilling the
goals mentioned therein. In the process of administration of justice according to the
law, they have to respond to the changing situations, circumstances, hopes and
aspirations of the people.[2]

In India the framers of the Constitution took special care to see that there may not
be any abuse of power with respect to the functioning of the Judiciary. The clause
‘due process of law’ was omitted by the Drafting Committee and was instead
replaced with the words ‘procedure established by law.’ Another aspect involving
judicial review was avoided by the Constitution makers when they inserted the
restrictions on the fundamental rights in the Constitution itself instead of allotting
the task to the Judiciary under cover of the ‘due process of law’. A blanket cover
discretion has not been given to the Indian Judiciary under our Constitution as it
exists in the United States, which gave rights in unqualified terms and left it to the
courts to define their limits and legitimize restrictions on them.[3] But it is
interesting to note the views of the noted academician, Professor Upendra Baxi on
the Supreme Court. After analyzing the ‘expanded’ powers of the Supreme Court
and comparing it to the other Constitutional Courts from across the globe he came
to the conclusion that the Supreme Court of India is ‘the most powerful court in the
world’.[4] Many other commentators around the world have marveled at the
transformation of the Indian Supreme Court into what has been called “The
World’s Most Powerful Court.”[5]

But the Supreme Court of India was not always so. It started off as a technocratic
Court in the 1950s but slowly started acquiring more power. But with a change in
the political atmosphere of the country, the Judiciary also started changing its
perceptions. This transformation is also attributed to the gradual but perceptible
decadence in the Legislature and the Executive. Little movement characterizes
government functioning today, to the detriment of merit, efficiency and results.
The Legislature seems to be in a perpetual state of hibernation. Add to this the vice
of corruption and red-tapism. In this context, it seems as if the Courts have taken
upon themselves the functions of the other two organs.

Judicial activism is only two Anglo-Saxon words but embraces many jural worlds,
ensconces many social sources and invigilates many executive-legislative misuses.
It has developed into a radical affirmative jurisprudence with its own
parameters.[6] As always there are many takers for this transformation of the
Judiciary but just as many critics exist. Besides, this is not just a superficial change
in the role of Judiciary. It has many implications for constitutionalism and
jurisprudence, this change coming from the highest Court of the land, which also
happens to be the Constitutional Court of the country. No other Constitutional
Court in the world is said to wield so much power. Some aspects of this
transformation are examined in the following pages.

IV. Research Methodology

1. Aims and Objectives

This project aims at tracing the concept of judicial activism of the Supreme Court
of India from the beginning of the working of the Constitution to the present era of
Public Interest Litigation. It also aims at pointing out the drawbacks of the new
activist stance of the Apex Court and the need for adopting a more restrained
approach.

1. SCOPE, FOCUS AND LIMITATIONS

The scope of this project is judicial activism of the Supreme Court of India. The
researcher has confined herself to examining the attitude adopted by the Court with
respect to the interpretation of the Constitution from the 1950s till today, with
special emphasis on Article 21.

The method adopted has been to give an overview of the decisions of the Court in
the above said areas and then to further trace the Supreme Court’s attitude through
a critique of the decisions and the approach.

The researcher was constrained by time and since the topic is very vast, the
researcher is unable to cover all aspects.

1. RESEARCH QUESTIONS

The following research question shave been attempted to be answered in the course
of this project:
  What is judicial activism?
 How has the Supreme Court transformed from a technocratic Court to a
more activist Court over the years? What are the reasons for this?
 What are the fallouts of the activist attitude adopted by the Court after the
Emergency?
 How far has Public Interest Litigation served its purpose?

1. METHOD OF WRITING

This project is both analytical as well as descriptive. It is descriptive in so far as it

states the decisions of the Court that have been considered activist over the years.
This represents the attitude of the Supreme Court towards judicial activism. It is
analytical when it attempts a critique of this attitude of the Supreme Court.

1. MODE OF CITATION

A uniform mode of citation has been adopted throughout this project for citing
sources of data so as to maintain intellectual honesty.

1. SOURCES OF DATA

Primarily secondary sources have been used. All India Reporters, textbooks and
commentaries on the subject have been made use of as well as Internet documents.

1. CHAPTERIZATION
Chapter 5: It attempts an explanation of the term judicial activism and its
various connotations.

Chapter6: This chapter traces some of the important decisions of the Supreme
Court in the area of Constitutional Law and attempts to view them in the historical
and political context in which they were given in order to provide a better
understanding of those decisions.

Chapter 7: It describes the developments in the Post Emergency era. It also

attempts to explain the reasons prompting this difference in approaches.

Chapter 8: It tries to put forward the difference between PIL and the normal
judicial process. It also presents the various views on this issue as well as the
fallouts of such an approach.

Chapter 9: It attempts to argue a case for judicial restraint using the example of the
right to education.
V. Judicial Activism – Meaning
The expression judicial activism has eluded a precise definition as it means
different things to different people. It might mean dynamism to the Judges, judicial
creativity to some, judicial legislations to some others, while there may be some
who view it as a tool for social engineering.[7]

The term judicial activism is used in a wide range of circumstances. Activism

denotes the circumstances where a body or authority engages in purposeful and
determined activity to achieve desired objects. In this process, that body or
authority takes the side of a policy or objective. Analyzed from this angle, judicial
activism means the process of Judiciary taking sides of some controversial issue or
social policy.[8] But the Judiciary is supposed to be an independent, impartial
arbitrator, which essentially involves remaining unbiased while giving decisions.
Thus, it is possible that this view gives rise to the notion that judicial activism is
some new phenomenon that has swept through the Judiciary, possibly attributable
to the kind of Judges that sit on the Benches.

Another view taken is that there cannot be and there is no judicial activism per se.
The Judiciary has always remained active and in no instance can it afford to remain
passive.[9] Judicial Activism is inherent in judicial review itself. It is not an
aberration but is a normal phenomenon and judicial review is bound to mature into
judicial activism. It is not possible for the Supreme Court to have become activist
suddenly over two decades. It has taken the Court much longer to change its self-
perception before it could change the equation with the other organs of the
Government.[10] The transformation of the Court should also be viewed in
consonance with the political situation prevalent at that particular time in the
country. Judicial activism as thus understood has always been with us, though the
differences in styles of performance necessarily vary. For instance, in the
Nehruvian era, marked by charismatic nation- building practices, the Supreme
Court went to the point of legitimizing the First Amendment to the Constitution,
which introduced the nefarious Ninth Schedule into the Constitution that protected
manifestly unconstitutional legislations. At the very same time, the Supreme Court
reviewed the amendments to Article 31 in ways that virtually annulled their
intendment. Another example is the validation of the draconian National Security
Act and at the same time expansively interpreting Article 21.[11] It is said that till
about the 1980s, the activist role of the Supreme Court was sporadic. But the post-
1980s saw the Supreme Court asserting itself more regularly, with the Court even
laying down guidelines or directions or legislating on certain issues.[12]

There are three sources of judicial activism. The primary source of judicial
activism lies in the principle of rule of law. For instance when Governor Romesh
Bhandari dismissed the Kalyan Singh Government in Uttar Pradesh, the Allahabad
High Court ordered its re-installation.[13] The second source is judicial review
which is the charter for judicial activism. The other recent source is Article 142 of
the Constitution from which began the era of PIL. It is interesting to note that the
Supreme Court has observed that no statute can limit the powers of the Supreme
Court to give directions if it feels they are required to ensure ‘complete justice’ in
any matter. The only thing that the Court should be cautious of is that it does not
trample upon some other provision of the Constitution while exercising this power
under Article 142(1).[14] Thus, the words ‘to do complete justice’ have been used
as a justification as well as a source of judicial activism.

VI. The First Few Years…

In the first few years of the working of the Constitution, the Courts more or less
lived up to the expectations of the Constituent Assembly, which had envisaged a
limited role for the Apex Court. It did not read into the Constitution what was not
written and did not indulge in much ‘activism’ or ‘law-making’, thus living up to
the positivist notion that Judges do not make the law. For instance, in State of
Madras v. Champakam Dorairajan,[15] the Supreme Court struck down a
communal Government Order of the Madras Government on the grounds that there
was no clause present in Article 15 corresponding to Article 16(4) which would
have allowed the Madras Government to make reservation for the backward
classes. In response, Parliament which was in fact the Constituent Assembly,
amended the Constitution to insert another clause to Article 15 in order to facilitate
such reservations to be made in the future.[16]

Though the decision would prima facie seem to be against the Government, it was
in reality an instance of affirmation of the limited role of the Judiciary which it was
assigned to. Thus, in the first few years, the Supreme Court and Parliament were in
agreement. It was easy for political establishment to ‘manage’ the Court.
Parliament simply amended the Constitution and asked Court to respond to it or the
other way round. During the Prime Minister-ship of Nehru – Parliament held the
initiative and the Court merely responded. But although the Court played a limited
role, Parliament wanted legitimization of its acts by the Courts. Therefore, the
Court was not entirely passive even during this time. During the 1950s and 1960s,
the Court seemed to support the Nehruvian vision of socialist India. This has been
described as the most fruitful period of partnership between the Court and
Parliament.[17]

The political conditions of the country facilitated this partnership between these
two organs of the State. Nehru had large majority in each House, and hence could
resort to amending the Constitution if there was any disagreement with the Court.
Unlike today, when the ruling part would find it extremely difficult and almost
impossible to muster the required majority as per Article 368 for a Constitution
amendment, there existed no such practical difficulties for the Nehru Government.
This is evidenced by the number of amendments[18] made by his Government. In
this situation, it would have been injurious to the Judiciary had it taken up the
baton of judicial activism. This would have been perceived as anti-Nehru and at
that point of time, any such perception would have undermined the Judiciary’s
legitimacy, given the popularity and mass support Nehru enjoyed. A few of the
amendments effected by Nehru curbed the scope of judicial review.[19] It gave rise
to a debate on the scope of amending power of Parliament. This also gave a chance
for the Judiciary to break out of its docility.

In 1951, the Court held unanimously[20] that the amending power was unlimited.
In a subsequent decision[21] though, the same view was affirmed, but that was
only a majority decision and not unanimous. In this case, the seeds of greater
disagreements with Parliament were sown. Finally in 1967 the Court declared[22]
that the constituent power does not extend to taking away or abridging the
fundamental rights. Although this dictum of the Court was not the true ratio of this
case, it was so treated by the Judiciary and Parliament alike. This seemed
preposterous when it was conceived. It challenged the basic assumptions of
judicial process and democracy.[23] Subsequently, the Court itself held by a
majority of 11:2 in Kesavanada Bharati v. State of Kerala[24] that the above case
was wrongly decided, but propounded the theory of Basic Structure. Hence, while
conceding that the power under Article 368 extended to all Articles of the
Constitution, the Court by a slender majority of 7:6 held that such power could not
be exercised so as to destroy or take away any of the basic features of the
Constitution, which was to be determined by the Court from time to time. This
meant that the Court would have last say in all Constitution matters.

The Basic Structure doctrine was a revolutionary proposition in the area of

Constitutional law. Nowhere in the world was there any such precedent. It came in
for severe criticism. It was thought to be revolting to the basic assumption of
democracy – how could an unelected Court be allowed to decide what the
Constitution should contain? Such decisions should rest with an elected
representative body like Parliament.[25] Soon after the decision was given, there
was doubt about the future of the doctrine. It must be remembered that at the time
the decision was given, Mrs. Gandhi was in power and she still had a majority in
Parliament. She too could have resorted to the device of Constitutional amendment
to overturn the decision of the Court, as had been the practice. But Emergency was
declared in 1975 and in the same year a landmark case came up for hearing in the
Supreme Court. In Indira Nehru Gandhi v. Raj Narain[26], the 39th Constitution
Amendment was challenged on the grounds of Basic Structure. The Amendment
was a one-person amendment attempting to quash the appeal against her from the
decision of the Allahabad High Court which had declared her election void for
corrupt practices. It seeked to dispose of that appeal by legislative process. Though
the Chief Justice tampered with the constitution of the Bench by putting 4 Judges
who had voted for unlimited amending power of Parliament in Kesavanand
Bharati, the Court still held the Amendment invalid but upheld election on merits.
It also held that democracy was a ‘basic feature’ of the Constitution.[27]
Though the decision was criticized, it legitimized the Basic Structure doctrine. It
has been used in subsequent cases. Some of the features that have been held to be
part of the Basic Structure are judicial review,[28] secularism,[29] rule of law,[30]
independence of the Judiciary,[31] harmony between the fundamental right and
directive principles of state policy,[32] Parliamentary democracy,[33] etc.

Prof Baxi is one of the supporters of this doctrine and has viewed the fact that the
Judiciary has a last say in the matter of amendment as the most notable feature of
the Basic Structure doctrine.[34] But it seems as if with the dramatic change in the
political conditions of the country there may be very little opportunity to invoke
the doctrine with respect to constitutional amendments as it is highly unlikely that
any party will be able to muster enough majority to get an amendment Bill passed
in Parliament! It remains as an effective counter-majoritarian check upon
democracy. Though the foundations of the Basic Structure doctrine rests on an
accident abuse of constituent power in 1975, it has gained acceptance by the
Judiciary as well as by the political parties, which is evidenced by the fact that
when the BJP-led Government announced its agenda to review the Constitution, it
made it clear that this would be only within the permissible limits of the basic
structure doctrine. Similarly, the Opposition supported this view.[35]

VII. After the Emergency…Departure

from Positivism.
Article 21: The Golden Article for many.

The Emergency could be said to have brought about a tremendous change in the
Supreme Court. Prior to the Emergency the Supreme Court was marked by
adherence to positivism. What better example of this than
the A.K.Gopalan[36] case. In this case the Supreme Court interpreted the words
‘personal liberty’ in Article 21 a very narrow fashion to mean at the most freedom
from false imprisonment and at the least the freedom to sleep, eat, drink etc. But
after the Emergency and the defeat of the Congress party, judicial activism marked
a departure from positivism. Judicial activism of the post-emergency period may
have been inspired by the experience of emergency. The Court might have realized
that its independence and neutrality with respect to various political formations
depended upon the support of the people. Post-emergency activism is said to have
been inspired by the philosophy of constitutional interpretation which looks at
Constitution not as a mere catalogue of rules but as statements of principles for
constitutional governance. The provisions of the Constitution had to be read in the
light of principles that were supposed to underlie and transcend the formally
enacted rules.[37]
Another reason could be that with the fall of the Congress, Parliament began to
seem less of a formidable and dominant body. Also, there was no one charismatic
leader like Nehru who commanded universal appeal. The popularity of the
Congress was on the decline. Therefore now, the Court probably felt bolder to take
the decisions it did. The Court thus took this opportunity to expand the rights of the
people through liberal interpretation of Constitutional provisions regarding the
right to equality and the right to personal liberty. It departed from its earlier
approach of reading each article separately and started interpreting the fundamental
rights as a whole.[38]

In Kharak Singh v. State of Uttar Pradesh[39], the Supreme Court for first time
said that life as used in Art 21 was a compendious term to include within itself all
the varieties of rights which go to make up the ‘personal liberties’ of man other
than those dealt with in the several clauses of Art 19(1). It also described ‘life’ to
mean something more than mere animal existence. From here began the journey of
Supreme Court to ‘widely’ interpret the Constitution, on the grounds that the
Constitution is not a static document but a dynamic one.[40] These expressions
became an open sesame for the Courts. In Francis Coralie Mullin v. Administrator,
U-T of Delhi[41] the Supreme Court held that the right to life includes the right to
basic necessities of life and also the right to carry on such functions and activities
as constitute the bare minimum expression of human self. Thus, in successive
judgments, the Supreme Court has held that the right to speedy trial is one of the
facets of the fundamental right to life and liberty enshrined in Art 21 and the law
must ensure ‘reasonable, just and fair’ procedure[42] and that along with that the
accused has an inherent right under Art 21 to free legal assistance in case he is an
indigent.[43] The right against solitary confinement,[44] right against
handcuffing,[45] right against public hanging,[46] right against custodial
violence,[47] right to travel to other countries,[48] right to shelter,[49] right to
protect one’s culture, heritage and tradition,[50] right to privacy,[51] right to
release and rehabilitation of bonded labourers,[52] etc are some of the rights
recognized by the Supreme Court to be included under Article 21, which has
become the device by which Supreme Court requires the state to provide in effect
anything that would make a person’s life a life of dignity and fulfillment.

The only black mark which can possibly be pointed out with respect to Article 21
is the case of A.D.M.Jabalpur v. Shiv Kant Shukla.[53] where the Supreme Court
upheld by 4:1 that draconian strictures on personal liberty were valid on ground
that its power had been excluded by presidential orders issued under Article 359.

Article 14 and Judicial Activism – from the theory of ‘reasonable classification’ to

the ‘doctrine of anti-arbitrariness’

Article 14 also has also been a target of the zeal of the Supreme Court. Equality, as
is guaranteed under the Constitution does not prohibit classification. Equality only
means that equals should be treated equally and unequals should not be treated
equally. Any classification for the purposes of equality has three components,
namely, who are being differentially treated, why are they being so differentiated
and what is the different treatment. In the earlier years, the Supreme Court
confined itself to the first two elements only. The reasonable classification theory
was applied to determine the validity of any laws which were challenged under
Article 14. Under that two conditions had to be fulfilled – (i) the classification
must be founded on an intelligible differentia which distinguishes the people
grouped together from the ones who are left out and (ii) the differentia should have
a rational nexus to the object sought to be achieved. This had been used by the
Supreme Court in numerous cases.[54] But there have been cases in which the
Court has gone beyond the Reasonable Classification doctrine. For instance,
in Balaji v. State of Mysore,[55]the Court was not satisfied with examining the
nexus between the reservations in question to the object of such reservations,
which was upliftment of the socially and educationally backward communities.
The Court went a step further to see whether such reservations were not antithetical
to the idea of equality enshrined in the Constitution and held that protective
discrimination should bear a proportion to the total opportunities that are available.
This approach was also adopted by the Court in Indra Sawney v. Union of
India,[56] where the Supreme Court held that reservations in public employment
should not exceed fifty percent of the total number of posts and that the creamy
layer among the backward classes should be excluded from the benefits of
reservations. This was one instance when the Supreme Court had to do a balancing
act in the face of competing political and social interests. This case also stands as a
reminder of the supremacy of Parliament, as in consequence of the holding in this
case that there can be no reservations at the promotion level in public employment,
the Constitution was amended to include Article 16 (4-A), which overrides that
part of the decision rendered in the above-mentioned case.[57]

But the 1970s saw a more active Court transform the Reasonable Classification
theory into the doctrine of anti- arbitrariness, which allowed for the Court to
examine the third element also, namely, the kind of treatment being meted out. It
was first propounded by Justice Bhagwati in E.P.Royappa v. State of Tamil
Nadu[58]. The defect of the earlier theory is that it resulted in only in formal
equality which was achieved at the cost of substantive equality. This defect was
sought to be remedied by the doctrine of arbitrariness. This has thus given more
power to the Courts and they have attempted to bring about substantive equality
through this doctrine.[59]

Prof Upendra Baxi has termed the post-emergency activism as judicial populism,
describing it as an attempt by the Court to seek new historical basis of legitimacy,
being inspired by the Court’s realization that its elitist image would not make it
strong enough to withstand any future onslaught of a powerful political
establishment. S.P.Sathe though does not agree with the application of the term
judicial populism to all the decisions of the post-emergency period. He makes a
distinction between judicial activism and populism, citing the liberal interpretation
of Articles 12, 14 or 21 as examples of the former and describes the latter as an
aberration which occurs when Judges are swayed by euphoria.[60]

The researcher is in agreement with Prof Baxi. It cannot be denied that the liberal
interpretation of the fundamental rights has been a populist measure by the Court,
when it realized that it needed to fortify itself in the future eventuality of a strong
Legislature and Executive, resembling the Congress Government of the early
years. Arun Shourie has described the judgments as ‘just elaborations, if not,
unthinking application of clichés and slogans, postures that had come to dominate
public discourse and politics over those years’. Besides, this trail blazing was the
work of just a handful of Judges. Most of their colleagues stood by in silence, even
when in private they expressed reservations about what these high profile Judges
were ‘pioneering’.[61] Also, it cannot be said that the teeming millions of India
have very much benefited by these decisions, as most of them are platitudinal
statements with little viability to be carried out. In addition, the incapacity of the
Court to follow up on the implementation has made a mockery of the decisions.
These decisions have only resulted in arousing in the people a false sense of hope
that the Court will deliver them from their miseries. But it has to be remembered
that access to Courts is still restricted to a minority. In this scenario, the researcher
agrees with Prof Baxi’s analysis.

Another negative fallout for constitutionalism is that many publicly spirited

persons petition the Supreme Court under Article 32, though no fundamental right
of theirs is violated. They do not even claim to represent any determinate class of
citizens whose fundamental right is violated so as to justify their petition under the
relaxed rules of locus standi. Instead, they justify the petition on grounds ‘violation
of the Constitution’. The Court has not questioned such persons’ standing and has
unhesitatingly entertained the petition and thus got into policy considerations.[62]
But Article 32 is not meant for providing remedies against any violation of the
Constitution. The Court used the blank cheque it issued to itself under Article 21 to
justify the hearing of such cases.

VIII. Public Interest Litigation – How

Public is it Really and how ‘Interested’??
The word activism has today come to be synonymous with Public Interest
Litigation. And Justice Bhagwati has come to be associated with this new concept
called PIL. But there are several changes brought about by this new phenomenon.

Professor S.P.Sathe sees PIL as having altered the judicial process from adversarial
to polycentric, and adjudicative to legislative.[63] With the advent of the genre of
PIL, the Court has made certain deviations from the normal judicial process
  The rule of locus standi : This was one of the important methods by which
the Court saved itself from frivolous litigation. This means that the Court
will entertain a petition only if it is satisfied that the petitioner’s specific
right has been violated. But any ‘publicly spirited person’ on behalf of
another who may be unable to petition the Court directly or as a
representative of a determinate class or section of the citizens, whose rights
have been violated, can maintain a PIL. Now, even a newspaper report or a
letter addressed to the Court (though not to an individual Judge) can form
the basis for a Public Interest Petition. The considerations prompting such
relation are to enable the Court to reach the poor and the disadvantaged
sections of society, who are denied rights and to enable individuals or
groups to raise matters of common concern arising from inefficient
governance as also to increase the public participation in the process of
constitutional adjudication.[64]
 Decisions of Courts are binding as between the parties to the dispute, i.e., it
is effective in personam between the litigants. A decision in a PIL may
however become effective on persons who have not been actual litigants as
a PIL is more in the nature of a conflict resolution, the solution of which
may affect many people who are not parties to the litigation. The decision
thus operates in rem.[65] The Supreme Court has held[66] that Order 1,
Rule 8 of the Code of Civil Procedure inapplicable to a PIL.
 The distinction between ratio decidendi and obiter dictum has become
inconsequential with respect to PIL.[67] The legal principles that forms the
basis of a decision and without which the decision could not have been
rendered is called the ratio. The legal principles which are elucidated by the
Court but are not necessary in the disposal of the case is the obiter. The case
of Golaknath[68] is an instance of the erosion of this distinction. The dicta
that Parliament cannot amend the Constitution so as to take away or abridge
the fundamental rights was strictly speaking not the ratio as the actual
decision of the Court, which was that the impugned amendments were valid,
had no direct connection with the above said dicta. But in reality, the Courts
as well as Parliament treated it as the ratio.[69]

The present trend of the Judiciary cannot have been conceived before the 1980s
when the executive and the legislature were powerful and many a times combined
to annul the judgments of the highest Court of the land. The weakness of the
Parliament and the Executive has facilitated the growth of judicial activism in the
country. Justice Ahmadi[70] once opined that the Courts would never have
resorted to PILs if the other two democratic institutions functioned in an affective
manner. In this context, judicial activism is like an oasis in a desert.

Another reason cited is that in the modern, technology-savvy welfare state, the task
of the executive increases manifold. It has to formulate policies and initiate
legislation and in addition make quick and sporadic rules and regulation to meet
the demands of the situation. The lack of necessary rules in many vital areas might
have spurred a judicial awakening to make the executive responsive to changing
needs.[71]

From the inefficiency of the Executive and the Legislature followed the quest for a
‘saviour’, an institution to free the people from corruption, dishonesty and
inefficiency. Where better to look than to the Judiciary, which had the reputation of
being independent and impartial. Thus, the whole responsibility fell on the
Judiciary. And to many it seems as if the Judiciary has not failed them. Falling
back upon its writ jurisdiction under Article 32 and under the guise of discharging
its constitutional duties of protecting and furthering the constitutional values the
Court has donned this new role.

But this has led to many a questions being raised with respect to the legitimacy of
such actions, their viability and most importantly the accountability. Granted that a
modern democracy requires Judges to settle disputes, and in a democracy with a
written Constitution, to also oversee exercise its function of judicial review. But
there is always the worry that Judges will overreach themselves. The vice of
judicial activism lies in the possibility that Courts may fail to apply the law in
accordance with its plain meaning or they may make a decision or formulate rules
which isn’t warranted by the existing authoritative legal texts.[72] The criticisms
of the activist approach adopted by our Supreme Court are dealt with below.

Violation of the Doctrine of Separation of Powers

The American Constitution is the widely cited example of a Constitution which

recognizes the doctrine of Separation of Powers between the three organs of the
State, viz, the Executive, the Judiciary and the Legislature. On the other hand, the
United Kingdom is a democracy which is cited as an example of one which does
not recognize this doctrine, as it could be said that there is a fusion of executive,
legislative and judicial; functions in the composite house of Parliament. The
position of India is somewhat peculiar.

The framers of the Indian Constitution did not recognize the doctrine in its absolute
rigidity. However, the functions of the various State organs have been spelt out
sufficiently in the Constitution. So also the Constitution itself provides for certain
occasions when there might be assumption of the functions of another organ by
some other organ of the State.[73] But the Constitution does provide for a system
of checks and balances and all the organs are bound to function within this system.
Thus, it is commonplace that the Legislature enacts the law, the Executive
implements it and the Courts interprets it and also adjudicates on the validity of the
legislation itself. But the Court in its duty of interpreting the law accomplishes in
its perfected action a marginal degree of legislative exercise.[74]

It is said that the Indian Constitution recognizes the Cabinet system of Government
based on Parliamentary supremacy as in the United Kingdom, and the residuary
powers after allocation among the three organs of the State vests in the Executive
and not in the domain of the Judiciary. Thus, any judicial interference on any
matter falling outside the boundary of allocation of the judicial power would be
unconstitutional. Hence, the Judiciary is not competent, nor expected to usurp the
executive or legislative functions of the other organs under cover of decisions or
orders in PILs.[75]

The past decade had witnessed the erosion of the democratic values, the executive
apathy, red-tapism, corruption, malpractices and violations of human rights
reaching their zenith. This has paved the way for new vistas of judicial
intervention. of extending its arm to fight out these maladies. The Judiciary started
ordering not only the ‘what’ and ‘when’ of its directions to be complied with by
the executive but also the ‘how’ of them.[76] For instance, in A.K.Roy v. Union of
India[77], the Supreme Court issued directions as to how the preventive detenues
are to be treated, while they are kept in detention. In another instance[78] the
Supreme Court had laid down a number of guidelines for the appointment, transfer,
tenure, status, etc., of the chiefs of the investigating agencies like the Central
Bureau of Investigation, the Central Vigilance Commission, the Enforcement
Directorate, etc. The latest illustration of the Judiciary overstepping itself and
legislating in the guise of directions is found in the instructions issued to the
Election Commission requiring candidates to provide on the affidavits information
about themselves such as whether they had any past convictions, criminal cases
pending against them, their income, their educational qualifications, etc, in a
prescribed format, failing which their nomination should be rejected.[79]

These and many more instances show that the Supreme Court has donned the
mantle of the Legislature in the face of its inefficiency and the pressing needs of
the ides. Some imaginative Judges have did not only make law, but added new
dimensions to the law.[80] Nevertheless, this amounts to a clear violation of the
doctrine of separation of powers, to whatever degree it is present in the Indian
Constitution. Should not this be thus, regarded as unconstitutional? For if the
Legislature overtakes over the judicial functions unless in accordance with Articles
104 and 194, then the Judiciary would without doubt declare it as unconstitutional.
On no account has the Constitution authorized the Judiciary to exercise such
legislative functions as it has done in the above cases. Indeed, to establish the
legitimacy and to get more freedom in interpretation the Supreme Court has
resorted to constitutionalization of issues, throwing many rules[81] of judicial
restraint into the air, which the Courts had evolved over the years. It has been
asserted that Judges live in ivory towers and remain unmindful of the felt needs of
the time and place. Moreover, usurpation of the legislative function by Courts is
tantamount to subversion of the democratic process, in as much as it mounts to the
substitution of the judgment of a few individuals in place of that of the responsible
representatives of the people.[82]
Besides, the viability of these directions is in question. How far have the Supreme
Court directives with respect to the treatment to be meted out to preventive
detenues been complied with? Who is there to oversee its implementation and
ensure its compliance? As has been rightly said, such judgments do not have the
semblance of a judicial order and the Judges seem to be engaging in mere
populism.[83] Arun Shourie in his recent book has criticized ‘judicial activism’
as being fed on, and in turn fed into superficial, rhetorical, and if indeed truth be
told, exhibitionist and opportunist ‘socialism.’[84]

The mere chances for violation of rights should not drive the Courts to these
judgments. They should also take into consideration their enforceability as well as
the resources to the Government to set right things in these areas. It is felt that the
Courts do not engage in dialogue with the public and this gives an impression that
the Courts have come up with some platitudinal statements without having regard
for the practicability or enforceability of their suggestions or orders.[85] It is to be
remembered that the directions issued in such decisions by the Supreme Court are
the law of the land as per Article 141 of the Constitution.

It is to be noted that the Court does have the option of punishing those concerned
with contempt for disobedience or non-compliance with the Court’s orders. What
appears to be happening is that social action groups in their fields of operation are
ensuring the implementation of these directions? Even the Governments seldom
challenge this as they are either too weak or use the Court proceedings to defer
decisions citing sub judice and are usually co-operative in the enforcement of these
orders.[86] But there have been instances when it has seemed that the Court has
used its power to punish for contempt to stifle genuine criticism of its
decisions.[87] But with the entry of The Court into areas which were traditionally
considered that of the Legislature or the Executive, the Court must also be ready to
face the criticism. Thus, there is a need to bring the contempt law closer to the
freedom of speech and expression guaranteed under Article 19(1)(a).

The Court has insisted that it undertook law-making through directions only to fill
in the vacuum left by the Legislature or the Executive, and that its directions can
be replaced by legislation enacted by the Legislature and where no legislation was
required, by the Executive power, whose power is coterminous with the
Legislature. But this hardly seems to be happening. The people of India have
become politically more assertive in registering their protest through the ballot
box, with no party able to secure a majority since 1989. Coalition Governments
have become the order of the day and with that came the era of coalition politics
with the result that the Parliament of India has virtually stopped legislating.[88]
Thus, when any Bill is introduced in Parliament it is very rare that all the parties or
at least a majority of the political parties are ready to pass the Bill, with the
exception of course of Bills increasing the MPs’ salaries or other benefits! In such
a situation, it seems highly unlikely that the Government or the Legislature is
going to substitute the decisions of the Courts with legislation.
Legitimacy

This is a burning issue with respect to judicial activism. It is said that while
validity is essentially a legal concept, legitimacy is a sociological concept. The
most common form of legitimacy is the ‘belief in legality’, i.e., the acquiescence in
enactments that are formally correct and which have been made in the accustomed
manner. Legitimacy therefore means (i) legal validity; (ii) a widely shared feeling
among the people that they have a duty to obey the law and; (iii) the actual
obedience of the law by a large number of people.[89]

The first requirement, i.e. legal validity has been discussed above under the
heading of ‘violation of the separation of powers’. Thus, it can very well be
argued that the Courts have ‘illegitimately’ usurped the functions of the Legislature
and the Executive and therefore transgressed the Constitution, which at least in a
limited fashion, provides for the separation of powers. Hence, the legal validity is
in question.

As regards the second requirement, Article 141 of the Constitution says that the
decisions of the Supreme Court are the law of the land. Besides, the citizens of
India hold the Supreme Court in high esteem. In the wake of the failure of the
Executive and the Legislature, the people have turned to the Judiciary for redressal
of their grievances, protection of their rights, and turned the Court into a tool of
social engineering. In addition, the absence of legislation, it is supposed that the
Courts’ decisions are the law and thus have to be followed. Also, the Court has the
power to punish for contempt if it wishes to enforce its orders. It could thus be said
that the second requirement has more or less been satisfied.

The third condition is debatable. The decisions, though the law of the land require
effective enforcement. The decisions ought also to be viable. When judgments are
not implemented or practically unenforceable, when judges are unmindful of the
vast consequences of their pronouncements, the institution loses its efficacy and
authority. Take for instance the conversion of many of the directive principles of
state policy into fundamental rights. The question is not about desirability but
about enforceability, and here it seems as if the Court has staked its legitimacy.
Judicial discretion cannot be absolute. It has to be circumscribed. Otherwise, the
judicial function would lose social legitimacy. The common man perceives the
Judiciary as objective and predictable. Such perceptions have to be sustained.[90]

On another level, several points need to be kept in mind while discussing these
‘activist’ judgments of the Supreme Court. While Courts often give sweeping
judgments, ones that get bold headlines, ones that raise hope among citizens, it
does not as often follow it up to see whether it has been complied with. Besides,
outside the state structure, there is just about as much fear of the Courts as there is
among the salaried classes of the Income tax.[91]
In the recent times, a few Judges have come to be linked to certain social causes
due to their activist decisions. For example, Justice Bhagwati has come to be called
the ‘green Judge.’ In their quest of becoming activist and thus gaining popularity,
Judges have to be cautious of not engaging in ‘competitive judicial activism’,
which needless to say will be detrimental for both society and the Judiciary itself.

IX. Judicial Restraint – the case of the

Right to Education
Article 41 of the Constitution imposes an obligation on the State to secure the right
to education ‘within the limits’ of its economic capacity. In this regard, the case
of Unni Krishnan[92] has become famous. Why? Because it made the right to free
and compulsory education up to the age of fourteen a fundamental right. When the
decision was given, it was hailed as a landmark decision in the field of rights of the
child. The making of the right to education justiciable is indeed a commendable
step. But coming from the Judiciary and not from the Legislature, it needs to be
examined whether it is as commendable as it seems. This decision comes in the
context of the Judiciary converting many of the directive principles of state policy
into fundamental rights.

The directive principles of state policy, as the name suggests, are ‘directive’ meant
to serve as guides for good governance. They are not meant to be enforceable in
any Court. That is why they have been included in Chapter IV and not in Chapter
II. But the Court by incorporating them within the fundamental right of Article 21
has made them enforceable. In the interpretation of fundamental rights, the
Judiciary has adopted an activist goal-oriented approach. [93]

It is interesting to trace the decisions with respect to the right to education. In 1992,
in Mohini Jain v. State of Karnataka[94], the Supreme Court while highlighting
the importance of education to make life meaningful, held that the right to
education flowed directly from the right to life, which according to them was a
compendious expression covering all those rights which are necessary for a
‘dignified enjoyment of life’.[95] It also imposed an obligation on the State to
provide educational institutions at ALL levels to its citizens. But in Unni
Krishnan’s case, the Court realizing the cumbersome burden it had imposed on the
State a year earlier, whittled down the scope of the right. The right is now limited
to primary education only. This decision of the Court has now been incorporated in
the Constitution in the form of Article 21-A, which was inserted by the
93rd Amendment.[96]
Despite the favourable response it has received, the
decision has much left to be answered. For instance, The elevation of
elementary education to the status of a justiciable fundamental right does
not explain how such a move would reverse the conditions that prevented the
universalisation of elementary education in the last 51 years of operation
of the Indian Constitution. In the bureaucratic rush to educate anyhow, the
substantive debates around issues such as curriculum, pedagogy, and teacher
orientation and appropriate institutional arrangements are likely to be
rendered irrelevant. Neither the judgment nor the new amendment make any
commitment as to the quality of education to be imparted. [97] The right to
education would become meaningless if the curriculum was used for the
propagation of communalism. Has the Supreme Court while giving judgment
thought about all this also as these are just as important in the making of
human life meaningful? Is this decision another case of over-haste? Or is
it another judgment to be hailed as the progressive activism of the Supreme
Court?
There is a contrary view on this issue. It can be said that
by a complementary and holistic reading of the provisions of Part IV and
Article 142(1), the Supreme Court has sought to achieve under Article 21
its constitutional mandate. It is just a matter of procedure and not of
substance. In essence, the Court, it is pointed out, has not transgressed
any constitutional limitation; neither has it indulged in any act of
constitutional despotism.[98] The researcher respectfully disagrees with
this view. What the Constitution mandated is the provision of education
‘within the limits of the State’s economic capacity.’ the Court by making
the right to education a fundamental right, though now supported by a
Constitutional Amendment, has not taken that part of Article 41 into
consideration because the enforcement of a fundamental right does not
depend upon the economic capacity of the State. Is the Indian State today
in a condition to say that it has the capacity to provide education to all
the children up to the age of 14?
Today, in India there is severe clamoring for engineering
and medical seats in colleges. It is not unfamiliar to find many such
colleges charging high capitation fees. The Court in Unni Krishnan’s[99]
case addressed this issue with its new found vigour. It visualized a scheme
for the medical institutions, whereby, fifty percent of the seats were to
be ‘free’ seats and the rest could be ‘payment’ so that the latter fifty
percent seats would cross-subsidize the free seats. The logic given was
that, in the earlier set-up of things, when the colleges were free to
charge any amount they wanted, the opportunities for the poor students was
drastically reduced and this resulted in inequality. It was in order to
reduce this inequality that the Court devised this scheme. But in the
recently decided 11 Judge Bench decision in the T.M.A.Pai Foundation[100]
case, in which Unni Krishnan was relooked at, the Supreme Court termed this
above-mentioned scheme as ‘not a reasonable restriction.’ Further, it said
that the scheme imposed by the Court made it difficult for the educational
institutions to run efficiently and hence cannot be imposed on them.[101]

There is a danger of the Judiciary creating multiplicity of

rights without the possibility of adequate enforcement. This danger will in
the ultimate analysis be counter-productive and undermine the credibility
of the Judiciary as an institution. The Court cannot create rights where
none exist.[102] In such a context it would do well for the Judiciary to
observe some restraint. Independence of the Judiciary mandated that it is
the Judiciary itself that draws the line. It cannot be something that is
imposed from the outside. It has been compared to a long pole held by a
tightrope walker (here, the Court) to prevent it from overbalancing and
falling on either side, i.e., either on the side of judicial activism or
judicial avoidance. [103]

X. Conclusion
The foregoing pages have traced the concept of judicial activism in India. It has
been seen that the role of Judiciary has been a changing one with an apparent
difference in the role it played in the 1950s to the role it has played in the past two
decades. The Judges have more or less got away with the ‘creative’ and ‘wide’
interpretation of statutes and the Constitution. The Judiciary is today perceived as a
messiah of the poor and the underprivileged. It has overtaken the mantle of the
Legislature as well as the Executive to a certain extent. While this raises grave
questions as to the legitimacy and viability of such actions, the media, political
establishment and the middle classes to some extent, have welcomed such
intervention by the Apex Court.

With the evolution of the PIL-Public Interest Litigation, came a plethora of cases
which gave ample opportunity to the Judges to be as creative as possible. It also
gave them an opportunity to espouse the social causes they believed in! One author
has remarked, and rightly so, that contemporary judicial activism reflects attitudes
closely linked to those of a reformist, in particular, a hostility to pluralist, part-
dominated political process.[104]

But it needs to be remembered that the task of the Judges in the area of PIL is
particularly difficult as there are a large number of cases and material is lacking.
The process calls for greater participation on the part of the Judges. But as Justice
Ahmadi[105] and Justice Anand[106] have cautioned, PIL should not become
Publicity Interested Litigation or Political Interested Litigation or Personal Interest
Litigation. The impartial and objective picture of the Judiciary has to be
maintained, as it is the weakest organ of the State, with control neither over the
purse or the sword. In addition, it is important that the Judges don’t create a
confusion in the law through their decision or observations. In past few years, the
Judges seem to have become more cautious, with many dictums sounding a bell on
the over-activism of the Judiciary.

Judicial creativity cannot be wholly eliminated. It’s an ineradicable feature of any

legal system, as rules don’t apply themselves. Someone has to do this work and
this has befallen on the Judge, who has to decide both which rules to apply and just
what the chosen rules mean in given circumstances.

XI. Bibliography
Articles

1. A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional

Viability, (1996) 4 SCC (J) 1.
 2. A.M.Varkey, Judicial Activism to promote consumer protection, [1997]
C.U.L.R. 423 at 424
3. A.S.Anand, Judicial Review – judicial activism – Need for caution, 42
J.I.L.I. (2000) 149.
4. B.R.Sharma, Public Confidence in the Judiciary:Some Questions, [1988]
C.U.L.R. 204.
5. D.N.Saraf, Limits of Judges’ Domain: Some Policy Considerations, 30
J.I.L.I. (1988) 45.
6. D.Rajeev, Separation of Powers and Judicial Activism: Tradition versus
Modernity, [1997] C.U.L.R. 329
7. K.K.Venugopal, Supreme Court of India: The Most Powerful Court, [1998]
C.U.L.R. 355.
8. K.N.Chandreshakaran Pillai, Role of the Indian Judiciary in Maintaining its
Independence, [1997] C.U.L.R. 283.
9. Kallada Sukumaran, Indian Judiciary: Problems and Perspectives, [1997]
C.U.L.R. 271.

10. P.N.Bhagawati, Enforcement of Fundamental rights: Role of the

Courts, Indian Bar Review, Vol 24(1 & 2): 1997, p. 11.

11. R.R.Vadodaria, Constitutional Crises and Judicial Activism, Indian Bar

Review vol. 27(1): 2000, p. 69.

12. Ramani Garimella, Judicial Law-Making, (2001) 2 S.C.J. 13 at 14.

13. S.P.Sathe, Judicial Activism (III) Growth of Public Interest Litigation: Access
to and Democratization of the Judicial Process, Journal of Indian School of
Political Economy, Volume 11, No.1 (Jan-March), p.28.

14. S.P.Sathe, Judicial Activism(IV): Legitimacy, , Journal of Indian School of

Political Economy, Volume 11, Number 2 (April-June) 1997, p.220.

15. S.Radhakrishnan, Judicial Activism :Unbridled Freedom, [1997] C.U.L.R.

466.

16. Shubhankar Dam, From Past to the Future: Some reflections on judicial
activism in Human rights, Indian Bar Review, Vol 29(1): 2002, January – March,
p.176.

17. Vinay Reddy, Judicial Self-Restraint: More Myth than Reality, Indian Bar
Review, Vol 27 (1) 2000 151.

Books
 1. Arthur Glass, The Vice of Judicial Activism, in Judicial Power, Democracy
and Legal Positivism, Tom Campbell and Jeffrey Goldsworthy (editor),
Dartmouth Publishing Company Limited, Aldershot, 2000.
2. Arun Shourie, Courts and Their Judgments: Premises, Prerequisites,
Consequences, Rupa and Company, New Delhi, 2001.
3. Principles of Legislation and Judicial Process, Prof. Samuel (editor),
Department of Law, University of Poona, Poona, 1st edn., 1992
4. S.P.Sathe, Judicial Activism in India: Transgressing Borders and Enforcing
Limits, Oxford University Pres, New Delhi, 2002.
5. V.N.Shukla’s Constitution of India, Mahendra P.Singh (editor), 10th edn.,
Eastern Book Company, Lucknow, 2001.

Internet Documents

1. Clark D. Cunningham, The World’s Most Powerful Court: Finding the roots
of India’s Public Interest Litigation Revolution in the Hussainara Khatoon
Prisoners case at (visited on 31.10.2002)
<<http://law.wustl.edu/Students/Courses/Cunningham/HK.html>>
2. 2. V.R.Krishna Iyer, Judicial review in a democracy at (visited on
4.11.2002)
<<http://www.hinduonnet.com/thehindu/br/2002/06/11/stories/2002061100
090300.htm>>
3. 3. Manisha Priyam and Sadhana Saxena, A new right for the
poor, Frontline, Volume 19 - Issue 11, May 25 - June 07, 2002 at
(visited on 2.11.2002)
< www.frontlineonnet.com/fl1911/19110760.htm&gt;
4. 4. R.Prasannan, Dignified restraint, The Week, May 17, 1998 at (visited on
1.11.2002) <<http://www.the-week.com/98may17/events1.htm>>
5. The right to education, The Hindu (editorial), May 18, 2002 at (visited on
3.11.2002)
<http://www.youhelpindia.org/special_feature/special_feature_may2002/spe
cial_feature_may2002_4.htm>

[1] Kallada Sukumaran, Indian Judiciary: Problems and Perspectives, [1997]

C.U.L.R. 271 at 278.

[2] A.S.Anand, Judicial Review – judicial activism – Need for caution, 42 J.I.L.I.
(2000) 149 at 151.

[3] Supra., note 1 at 278.

[4] Justice A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional

Viability, (1996) 4 SCC (J) 1 at 5.
[5] Clark D. Cunningham, The World’s Most Powerful Court: Finding the roots of
India’s Public Interest Litigation Revolution in the Hussainara Khatoon Prisoners
case at (visited on 31.10.2002)
<<http://law.wustl.edu/Students/Courses/Cunningham/HK.html>>

[6] V.R.Krishna Iyer, Judicial review in a democracy at (visited on 4.11.2002)

<<http://www.hinduonnet.com/thehindu/br/2002/06/11/stories/2002061100090300
.htm>>

[7] S.P.Sathe, Judicial Activism, Journal of Indian School of Political Economy,

Volume 10, Number 3 (July-September), 1998, p. 399.

[8] A.M.Varkey, Judicial Activism to promote consumer protection, [1997]

C.U.L.R. 423 at 424.

[9] R.R.Vadodaria, Constitutional Crises and Judicial Activism, Indian Bar

Review, Volume 27(1): 2000, pp 69.

[10] S.P.Sathe, Judicial Activism in India: Transgressing Borders and Enforcing

Limits, Oxford University Pres, New Delhi, 2002, p.6.

[11] Ibid., at xi.

[12] The immediate and more publicized instances of such activism instances
which come to mind are the cases of Vishaka v. State of Rajasthan, AIR 1997 SC
3011, where the Court laid down guidelines for the protection of women against
sexual harassment in the workplace; Laxmikant Pandey v. Union of India, AIR
1987 SC 232, guidelines regarding inter-country adoptions were laid
down; M.C.Mehta v. Union of India, (1991) 2 SCC 137, where the Court gave
directions for protecting the environment from pollution caused by vehicular
traffic; Vineet Narain v. Union of India, (1996) 2 SCC 199, popularly known as the
Jain diaries case or the Havala case. These are merely illustrative cases, but goes to
show that the Supreme Court has donned an activist role with respect to a wide
variety of issues, which permeate the lives of the citizens.

[13] Narendra Kumar Singh Gaur v. Union of India, MANU/UP/0092/1998

[14] In Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406,
the Supreme Court observed, “…This Court’s power under Art. 142(1) to do
“complete justice” is entirely of different level and of a different quality. Any
prohibition or restriction contained in ordinary laws cannot act as a limitation on
the constitutional power of this Court. This constitutional power of the Apex Court
cannot be limited or restricted by provisions contained in statutory law…”

[15] AIR 1951 SC 226.

[16] The Constitution (First Amendment Act), 1951.

[17] Supra., note 10 at 7.

[18] The Constitution was amended 17 times during the Prime Minister ship of
Nehru, with the seventeenth amendment being passed after his death in 1964.

[19] The First, Fourth and the Seventeenth Amendments removed various property
legislations from the purview of judicial review.

[20] By a 5-Judge Bench in Shankari Prasad Deo v. Union of India, AIR 1951 SC
1823.

[21] In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, two Judges
dissented.

[22] L.C.Golaknath v. State of Punjab, AIR 1967 SC 1643.

[23] Supra note 10 at 8.

[24] AIR 1973 SC 1460.

[25] K.K.Venugopal, Supreme Court of India: The Most Powerful Court, [1998]
C.U.L.R. 355 at 363

[26] AIR 1975 SC 2299.

[27] This has been reaffirmed in Kihoto Hollohan v. Zachillu, 1992 Supp (2) SCC
651.

[28] L.Chandra Kumar v. Union of India, (1997) 3 SCC 261.

[29] S.R.Bommai v. Union of India, (1994) 3 SCC 1; Ismail Faruqui v. Union of

India, (1994) 1 SCC 265.

[30] S.P.Sampath Kumar v. Union of India, (1987) 1 SCC 124.

[31] Supreme Court Advocates on Record Association v. Union of India, (1993) 4

SCC 441.

[32] Minerva Mills v. Union of India, (1980) 3 SCC 625.

[33] P.V.Narsimha Rao v. State, (1998) 4 SCC 626.

[34] V.N.Shukla’s Constitution of India, Mahendra P.Singh (editor), 10th edn.,

Eastern Book Company, Lucknow, 2001, p. 897.
[35] Supra., note 10 at 96.

[36] A.K.Gopalan v. State of Madras, AIR 1950 SC 27

[37] Supra., note 10 at 12.

[38] In A.K.Gopalan v. State of Madras, AIR 1950 SC 27, the Supreme Court had
held that Article 19 and 21 were distinct and separate and refused to read them
together. This has been changed with the decisions in Maneka Gandhi v. Union of
India, AIR 1978 SC 597 and R.C.Cooper v. Union of India,AIR 1970 SC 564.
In Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 the Court read Articles 21 and
14 together, therefore establishing the requirement of reasonableness with respect
to issues arising under Article 21 also.

[39] AIR 1963 SC 1295

[40] Justice Ahmadi in Supreme Court Advocates-on-Record Association v. Union

of India, (1993) 4 SCC 441 observed, ‘The Constitution, being a growing
document, its provisions can never remain static and the Court’s endeavour should
be to interpret its phraseology broadly so that it may be able to meet the
requirements of an ever-changing society.’

[41] AIR 1981 SC 746.

[42] Kartar Singh v. State of Punjab, (1994) 3 SCC 569. Though Section 309 of
the Code of Criminal Procedure already guarantees this right, the Supreme Court
has converted this right from a mere statutory right to a constitutional one.

[43] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360

[44] Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.

[45] Prem Shankar v. Delhi Administration, (1980) 3 SCR 855.

[46] Attorney General of India v. Lachmadevi, AIR 1986 Sc 467.

[47] Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.

[48] Satwant Singh v. D.Ramanathan, Assistant Passport Officer, AIR 1967 SC

1836.

[49] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

[50] Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.

[51] R.Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

[52] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at 231.

[53] AIR 1967 SC 1207

[54] It was first stated by Justice Das in State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75. It has been followed in Kedar Nath Bajoria v. State of
West Bengal, AIR 1953 SC 404; Kathi Raning Rawat v. State of Saurashtra, AIR
1952 SC 123; Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538; In re
Special Courts Bill, AIR 1979 SC 478; R.K.Garg v. Union of India, AIR 1981 SC
2138; D.P.Joshi v. State of Madhya Bharat, AIR 1955 SC 485.

[55] AIR 1963 SC 649.

[56] AIR 1993 SC 477.

[57] The Constitution (Eighty First Amendment) Act, 2000.

[58] AIR 1974 SC 555.

[59] The doctrine was applied in Ramana Dayaram Shetty v. International

Airports Authority, AIR 1979 SC 1628; Ajay Hasia v. Khalid Mujib, AIR 1981 SC
487; Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986)
3 SCC 156; Common Cause, a Registered Society v. Union of India,(1996) 6 SCC
530; Srilekha Vidyarthi v. State of Uttar Pradesh, (1991) 1 SCC 212; Y.Srinivas
Rao v. J.Veeraiah, (1992) 3 SCC 63.

[60] Supra note 10 at 106- 107.

[61] Arun Shourie, Courts and Their Judgments: Premises, Prerequisites,

Consequences, Rupa and Company, New Delhi, 2001, p.401-402.

[62] see generally D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579; S.P.Gupta v.
Union of India, AIR 1982 SC 149.

[63] Supra., note 10 at 235-236.

[64] S.P.Sathe, Judicial Activism (III) Growth of Public Interest Litigation: Access
to and Democratization of the Judicial Process, Journal of Indian School of
Political Economy, Volume 11, No.1 (Jan-March), p. 6.

[65]Ibid., at 28.

[66]Gopi Aqua Farms v. Union of India, AIR 1997 SC 3519, where the Court
rejected the petitioners argument that they were not bound by the decision of the
Court in an earlier PIL which affected them also.
[67] Supra.,, note 64 at 30.

[68] Supra., note 22.

[69] Parliament itself took steps to amend the Constitution in consequence of this
decision.

[70] Justice Ahmadi, CJI, in his Zakir Hussain Memorial lecture, cited
from, S.Radhakrishnan, Judicial Activism :Unbridled Freedom, [1997] C.U.L.R.
466 at 472.

[71] D.Rajeev, Separation of Powers and Judicial Activism: Tradition versus

Modernity, [1997] C.U.L.R. 329 at 334-335.

[72] Arthur Glass, The Vice of Judicial Activism, in Judicial Power, Democracy
and Legal Positivism, Tom Campbell and Jeffrey Goldsworthy (editor), Dartmouth
Publishing Company Limited, Aldershot, 2000, p.355.

[73] The Legislature is empowered to exercise judicial function by Article 105 and
194. The Judiciary exercises legislative and executive functions under Article 145,
146, 227 and 229. Similarly, the Executive may exercise judicial functions under
Articles 103 and 192 or legislative functions under Articles 123, 213 and 356.

[74] Justice Pathak in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC
161 at 231.

[75] Supra., note 1 at 282.

[76] Supra., note 71 at 335-336.

[77] AIR 1982 SC 710.

[78] Vineet Narain v. Union of India, 1988 Cri.L.J. 1208.

[79] Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294.

[80] Article 21 provides the most ready example. The interpretation given by the
Courts to this in the post- Maneka Gandhi era indeed amounts to additions to the
law, with the incorporation of many of the Directive Principles of State Policy
within the ambit of Article 21.

[81] For instance, before the Courts look at a case officially, a definite case in law
must exist under the Constitution. The Courts refused to pronounce on abstract and
contingent issues. In addition, the petitioner must cite the specific constitutional
provision involved and not refer to the Constitution generally. Also, if the Court
can decide the issue on grounds that are not constitutional, it will do so. Earlier, the
Courts used to defer to legislative or executive actions by classifying them as
political questions and refusing to answer them.

[82] D.N.Saraf, Limits of Judges’ Domain: Some Policy Considerations, 30 J.I.L.I.

(1988) 45 at 48.

[83] Lectures of Professor U.R.Rai, dated 23 September, 2002, NLSIU,

Bangalore.

[84] Supra., note 61 at 402.

[85] K.N.Chandreshakaran Pillai, Role of the Indian Judiciary in Maintaining its

Independence, [1997] C.U.L.R. 283 at 287.

[86] R.Prasannan, Dignified restraint, The Week, May 17, 1998 at (visited on
1.11.2002) <<http://www.the-week.com/98may17/events1.htm>>

[87] Arundhati Roy, In re, (2002) 3 SCC 343.

[88] S.P.Sathe, Judicial Activism(IV): Legitimacy, , Journal of Indian School of

Political Economy, Volume 11, Number 2 (April-June), 1999, p.255.

[89] Ibid., at 222.

[90] S.P.Sathe, Judicial Process: Creativity and Accountability in Principles of

Legislation and Judicial Process, Prof. Samuel (editor), Department of Law,
University of Poona, Poona, 1st edn., 1992, p. 131.

[91] Supra., note 61 at 14.

[92] J.P.Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645.

[93] P.N.Bhagawati, Enforcement of Fundamental rights: Role of the

Courts, Indian Bar Review, Volume 24 (1 & 2): 1997, p. 11.

[94] (1992) 3 SCC 666

[95] Ibid., paragraph 12.

[96] The right to education, The Hindu (editorial), May 18, 2002 at (visited on
3.11.2002)
<http://www.youhelpindia.org/special_feature/special_feature_may2002/special_fe
ature_may2002_4.htm>
[97] Manisha Priyam and Sadhana Saxena, Anew right for the
poor, Frontline, Volume 19 - Issue 11, May 25 - June 07, 2002 at (visited
on 2.11.2002) < www.frontlineonnet.com/fl1911/19110760.htm&gt;

[98] Shubhankar Dam, From Past to the Future: Some reflections on judicial
activism in Human rights, Indian Bar Review, Volume 29(1) 2002, January –
March, p.176.

[99] Supra., note 88.

[100] T.M.A.Pai. Foundation v. State of Karnataka, Writ Petition (Civil) No. 317
of 1993

[101] Ibid., at paragraph 34.

[102] Supra note 2 at 157.

[103] Vinay Reddy, Judicial Self-Restraint: More Myth than Reality, Indian Bar
Review, Volume 27 (1) 2000 151 at 153.

[104] Ramani Garimella, Judicial Law-Making, (2001) 2 S.C.J. 13 at 14.

[105] Supra., note 4.

[106] Supra., note 2.

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Judicial Activism v. Judicial Self-Restraint

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Table of Cases

American

Marbury v. Madison 2L Ed 60 1 Cranch 137 (1803).

English
Rylands v. Fletcher (1868) L.R.3 H.L.330.

Donoghue v. Stevenson (1932) A.C. 562

Indian

1. A.K. Gopalan v. State of Madras AIR 1950 SC 27.

2. Attorney General of India v. Lachmadevi, AIR 1986 SC 467.
3. Bachan Singh v. State of Punjab, SC 898.
4. Bandhua Mukti Morcha v. Union of India AIR 1992 SC 38.
5. CERC v. Union of India (1995)3 SCC 42.
6. Charanjit Lal v. Union of India AIR 1951 SC 41.
7. D.K. Basu v. State of West Bengal (1997) 6 SCC 642.
8. Francis Coralie Mullin v. Administrator Union Territory of Delhi (1981) 1
SCC 608.
9. Gian Kaur v. State of Punjab AIR 1996 SC 946.
10. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
11. I.C Golaknath v. State of Punjab AIR 1967 SC 1643.
12. Indira Gandhi v. Raj Narain AIR 1975 SC 1590.
13. Kameshwar Singh v. State of Bihar, AIR 1951 Pat. 51.
14. Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461.
15. Kharak Singh v. State of U.P, AIR 1963 SC 1295.
16. Kihota Hollohon v. Zachilhu and others (1992)1 SCC 309.
17. M.C. Mehta v. Union of India (1987) 1 SCC 395.
18. Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.
19. Maneka Gandhi v. Union of India AIR 1978 SC 597.
20. Minerva Mills v. Union of India (1980) 3 SCC 625.
21. Mohini Jain v. State of Karnataka AIR 1992 SC 1858.
22. Municipal Council, Ratlam v. Vardichand AIR 1980 SC 1622.
23. Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180.
24. P. Rathinam v. Union of India (1994)3 SCC 394.
25. Prem Shankar v. Delhi Administration, (1980) 3 SCR 855.
26. S.P. Sampath Kumar v. Union of India AIR 1987 SC 386.
27. S.R. Bommai v. Union of India (1994) 3 SCC 1.
28. Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.
29. Shankari Prasad v. Union of India AIR 1951 SC 458.
30. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.
31. State of Rajasthan v. Union of India AIR 1977 SC 1361.
32. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.
33. Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294.
34. Vineet Narain v. Union of India, 1988 Cri.L.J. 1208.
35. S.R. Bommai v. Union of India(1994) 3 SCC 1.
36. All Saints High School v. State of Andhra Pradesh AIR 1980 SC 1042.
37. J.P.Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645.
38. Mohini Jain v. State of Karnataka(1992) 3 SCC 666.
 39. T.M.A.Pai Foundation Writ Petition (Civil) No. 317 of 1993.
40. Kihota Hollohon v. Zachilhu and others (1992)1 SCC 309.
41. Indra Sawney v. Union of India AIR 1993 SC 477.
42. A.K.Roy v. Union of India AIR 1982 SC 710.
43. Vishaka v. State of Rajasthan AIR 1977 SC 3011.

Table of Statutes

 Constitution of India

Introduction

In recent times we have been hearing about the various important orders that have
been passed by the Supreme Court. These orders are a kind of law, as they are
abiding on everyone. This attitude of the judiciary can be looked at just by
glimpsing through the newspapers of the last few years. With the increasing in
technology, the active nature of the court is increasing. The constitution itself
provides for independence of judiciary. Removal of a judge is a very long and
complicated process.[1]

The active nature of the judiciary is important because the progress of the society
is dependant upon the proper application of law to its needs and since society today
realises more than ever before its rights and obligations, the judiciary has to mould
and shape the law to deal with such rights and obligations.[2] Another reason for
judicial activism is that the legislature is not best suited for the role of adopting the
law to the necessities of time, for, the legislative process is generally very slow and
the legislatures are often divided by the politics, slowed down by periodic elections
and overburdened with innumerable legislative process.

This research paper is an attempt to look into these and various other reasons for
the increasing active nature of the courts. The basic structure doctrine is one of the
important doctrines that has been developed by the court to keep a check on the
legislature. It has been tried in the constitution that there should be a balance of
power among all the organs of the government. But the truth is that “an absolute”
balance of powers between different organs is an impractical thing and in practice
the final say should be given to one of them.[3] Although the concept of separation
of power is applied in India, but a lot of violations of the rule are committed, which
creates problems between the judiciary and the legislature.

It is not that our courts have always been practicing such a high level of judicial
activism. With the commencement of the constitution the courts started as
technocrat court. It tried to uphold all the actions that were taken by the
government. This was the exercise of judicial self restraint by the court. But with
the problems coming up in the administration, the courts started to adopt the
activist approach. However, around 1980 and after the Supreme Court has started
to exercise self-restraint once more. This restraint comes up in respect to basic
structure of the constitution.

The researcher in this project has made an attempt to look at the various aspects of
the two doctrines and the positive and negative aspects of both of them.

Research Methodology

Aims and Objectives

The researcher in this project has aimed to look at the concepts of judicial activism
and judicial self-restraint in various areas. It traces the trends that the Supreme
Court has adopted after the commencement of the Constitution. It looks at the
positive and negative aspects of both.

Scope and Limitations

The scope of this project is judicial activism and judicial self-restraint as practiced
by the Supreme Court in India. The researcher has confined his scope to basic
structure and Public Interest Litigation in the case of Judicial Activism and Basic
Structure and education in the case of judicial self-restraint. This has been done
through use of case laws as they give a better understanding of the topic. The
limitation faced by the researcher was the wideness of the topic. Due to this the
researcher was not able to include everything.

Research Questions

· What is the meaning of Judicial Activism?

 How has the Supreme Court exercised activism in the basic structure and
PIL’s?
 What is the effect of activism on right to life?
 What does one understand by Judicial Self-restraint?
 What is relationship of Judicial self-restraint with basic structure and
education?
 Judicial Activism or Judicial Self-Restraint, which one is better?

Chapterisation

This research project has been divided into nine sections:

 The first section looks into the meaning of the term judicial activism
 The second section looks at the change in the attitude of the judiciary after
the emergency in 1975.
  Third section looks the attitude of the Supreme Court towards constitutional
amendments.
 Fourth section looks at the impact of judicial activism on Article 21.
 The fifth section deals with the issue of PIL’s
 Sixth section deals the general nature of judicial self-restraint.
 In the seventh section judicial self-restraint with respect to education has
been looked at.
 The eight section talks about the changed attitude of the Supreme Court
towards basic structure.
 The last section looks at the concept of separation of powers.

Style of Writing

The style of writing used by the researcher is descriptive and analytical.

Mode of Citation

A uniform mode of citation has been followed throughout the project.

Sources of Data

Primary sources as such case laws have been used for the purpose of writing the
project. Secondary sources such as books, articles and internet have also been used.

What Is Judicial Activism?

“Judicial activism is a necessary adjunct of the judicial function because the

protection of public interest, as opposed to private interest, is the main
concern.”[4]

The government is divided into three wings. It consists of legislature, executive

and the judiciary. All the three wings have separate functions. The legislature
makes the laws, executive enforces those laws and the judiciary solves the disputes
related to breach of that law. This was what the original conception of the function
of the judiciary. However, with the rapid changes that take place in the society, it is
not possible for the legislature to foresee every possible situation that may arise in
the future. In such a case the judiciary steps in and it interprets the law in such a
manner as to apply the existing law to the new situation that has arisen. The
judiciary uses its creativity to solve such problems and bridges the gap between the
law and the social condition. This creativity of judiciary is called as judicial
activism.[5] The concept of judicial activism is a branch of judicial review.
Therefore, at first the researcher would like to discuss about judicial review.
The concept of judicial review originated in United States in the case
of Marbury v. Madison[6], Chief Justice Marshal said that in case a law or a statute
conflicts with the constitution, then it is up to the court to decide which one is to be
followed. It is said to be one of the essential duties of the court.[7] On the other
hand the situation in India is different, the Constitution itself provides for judicial
review.[8] The scope of judiciary is basically extended to three areas; (i) judicial
review of legislative action, (ii) Judicial review of executive or administrative
action, (iii) judicial review of judicial action. Thus we see that judicial institution
not only has to deal with the issues of resolving the inter-se disputes but it is also
suppose to act “as a balancing mechanism between the conflicting pulls and
pressures operating in a society.”[9] Judicial review acts as an important
mechanism for testing the validity and constitutionality of the actions of the
legislature and executive. Judicial review has been exercised in India to a large
extent in different areas.

The first area where the concept of judicial review was exercised was in relation to
property areas.[10] There was a kind of tussle between the legislature and the
judiciary. The judiciary was trying to protect the landlords from the various
provisions in the constitution and the legislature on the other hand was amending
the constitution, to nullify the effect of the judicial decisions. After that the focus
of the judiciary moved from property rights to protecting the civil rights. However,
this no longer remained judicial review, but now it had taken the shape of judicial
activism.

The judiciary not only interprets the law but it has started making laws in cases
where, there is no legislation available on that issue. In M.C. Mehta v. Union of
India[11], the Supreme Court introduced the concept of absolute liability. This is
another example of judicial activism. However, if we go back in the history and
look at the Austin’s definition of law, then we might have to look into the
legitimacy of this concept of judicial activism. According to Austin law is the
command of the sovereign. This means that only the law made by the legislature
which is the sovereign in Indian context. The function of the court in this view was
to interpret the pre-existing law.[12] This maybe the theory but in practical this
was not followed in totality, even in Britain, where it ahs been a notion that a judge
cannot make law; the court has showed its activism through the judgements in the
cases like Rylands v. Fletcher[13] and Donoghue v. Stevenson[14].

The above-mentioned cases talks about activism of the Court in cases where there
was no was present so the court laid down the law. However, another area of
judicial activism, which is a kind of conflict with the legislature, is the cases
involving constitutionality of legislative orders. The important question that needs
to be asked is, whether a court is competent to strike down a law made by the
legislature. Can a court declare a law passed by the legislature as unconstitutional?
Now, as said earlier that judiciary and legislature both form a part of the state so
for the progress it is necessary that both of them work in consonance. The need of
this power given to the court is not to make it supreme, but the checks kept by
court on the actions of the legislature and executive and vice versa, facilitates in
the better working of the country.[15]

The Emergency and After.

The attitude of the judiciary underwent a transformation, after the emergency. The
court did this with respect to Art.21. In the original form the Art. 21 talks about
only the right to life. However, it was after the emergency that the courts stated to
look at it in a broader manner. In Maneka Gandhi v. Union of India[16], the court
laid down a seminal rule of constitutional interpretation. It said that there was a
greater need to look at the meaning of the words in the constitution. The words
should not be followed just in their textual form. In this case the right to travel
abroad was read as a fundamental right under Art.21.

Thereafter, Art.21 was used by the court in various cases for the purpose of
providing basic human rights to the people. The court showed its active nature by
interpreting the above said Article in a broad manner. The right to life was equated
with right to privacy[17], right to development[18], right to education[19] and
various other rights were also included in it. The reason for the imposition of
emergency was a judgment by the Allahabad High Court.[20] The court in this
case declared the election of Mrs. Gandhi as Prime Minister, unconstitutional.
Although the Supreme Court admitted the appeal by Mrs. Gandhi, still the
emergency was declared in the country. Along with the emergency, there was an
amendment to the Constitution..[21]According to this amendment that only a
parliamentary committee could look into the validity of the election of Prime
Minister and the Speaker.[22]

There is a change in the way judicial activism was exercised after the emergency
period. In this period the judicial activism was inspired by the philosophy of
constitutional interpretation. It looked at the constitution not as a set of rules, but as
principles of constitutional governance.[23] Thereafter, the court looked at the
wording of Art.21 in a different manner. The Article mentions that every person’s
personal liberty and life should be protected. However, an exception has been laid
down; it says that all these rights are subjected to the procedure established by law.
However, the court said that the procedure established should be just, fair and
reasonable. Therefore, the Supreme Court held the right to speedy trial as a
fundamental right under Art.21.[24] The court interpreted in such a manner
because it considered it as a constitutional duty to enforce this right of accused
person.[25] In this series the Supreme Court has also provided various other rights
to an accused or a prisoner like; free legal assistance in case he is an indigent,[26]
the right against solitary confinement,[27] right against handcuffing,[28] right
against public hanging,[29] right against custodial violence.[30]
Judicial Activism and Constitutional Amendments: Courts Safeguarding the
Fundamental Rights

The provision to amend a constitution is a necessity and the Indian Constitution

provides for it.[31] The power to amend the constitution lies with the legislature
and to do so it has to be passed by a majority of two-third of the strength. The need
for amending the constitution is that the society we live in is ever changing and the
constitution should also change according to the needs of the society. However, the
legislature has used this power to amend the constitution as a way to achieve its
end.[32] The Indian judiciary from the beginning of constitution had to deal with
many challenges that were made to the amendments made by the parliament.

Art. 13 say that any law which violates the fundamental right of the citizen would
be void. The word law has been defined in Art. 13 (3) (b). There are various
examples are given as to what constitutes law under this Article, and constitutional
amendments have not been included in it as a law. It was challenged right after the
commencement of the constitution. In the case of Shankari Prasad v. Union of
India[33], the Supreme Court said that the word ‘law’ does not include the
constitutional amendments. This was a positivist approach by the court, giving the
power to the legislature to amend the constitution affecting the fundamental rights
of the people. This attitude of the court continued until Justice Hidayatullah
pointed out in the Sajjan Singh v. State of Rajasthan[34], expressed that the
fundamental rights should not be left at the discretion of the legislature.

The Court changed its attitude in I.C Golaknath v. State of Punjab[35], the court
putting a restriction on the power of the court held that the constitutional
amendment would also be included under Art. 13 (3)(b). This is an example of
judicial activism exercised by the court. This judgement took away the
fundamental rights of the people from the hands of the majority. This was a
rejection of the absolute power of the legislature with respect to the constitution
and especially fundamental rights. This judgment was rejection of the view that
judiciary was only concerned with the interpretation of the constitution and not the
consequences of such interpretation.[36] The parliament reacted to this judgment
by introducing the Twenty-Fourth amendment to the constitution.[37] By this
amendment the parliament restored its power which it had before Golaknath.

This amendment along with two other amendments was challenged in the case
of Kesavananda Bharti v. State of Kerala[38], it was contented in this case that the
legislature has unlimited power to amend the constitution. The thirteen judge
bench in this case overruled Golaknath, but it said that the parliament should not
have the unlimited power to amend the constitution. It is important to look at the
basic structure doctrine for a better understanding of the case. Justice Khanna for
the first time used this term in this case. The basic structure of the constitution
implies that there are certain parts of the constitution which are so essential to the
constitution that they should not be amended. It was said that although the
parliament has the power to amend the constitution, certain provisions should be
left the way they are. The fundamental rights are also a basic feature of the
constitution, but not all could be said to be the basic feature. Only the fundamental
rights which could be said to be the basic human rights are the part of the basic
structure.

As said earlier that the parliament had power to amend all the parts of the
constitution, the only thing being that they should not amend the basic structure of
the constitution. The court also said that, what exactly basic structure is would be
decided by the court from time to time. This impliedly said that the court would
have the final say in the maters related to amendment. Now in the case
of Golaknath v. State of Punjab[39], the court laced absolute restriction on the
power of the parliament to amend the constitution especially with respect to
fundamental rights. In Kesavananda, the court removed this absolute restriction,
but it placed a judicial scrutiny on these amendments. Both the cases are an
example of judicial activism, but there is a difference in the kind of activism they
exercised.

It is important to note that how the judiciary has placed a check on the power of
parliament. This has been looked by many as the court showing its supremacy over
the parliament. Now the parliament also reacts to such judgments. As seen earlier
the parliament passed the Twenty-Fourth amendment to nullify the decision of
Golaknath. Similarly, after Kesavananda, the parliament reacted by supersession of
the judges. Three judges were superseded and Justice Ray was made the Chief
Justice of the country. The parliament also made an attempt to bury the basic
structure doctrine. It attempted it by the Forty-Second amendment to the
constitution.[40]

This was challenged in Minerva Mills v. Union of India[41]and it was unanimously

held by the five judge bench that Clause 4 was violative of the basic structure of
the constitution. In relation to Clause 5 the court held that the parliament can
amend any part of the constitution as long it does not violate the basic structure of
the constitution.

Right to Life and Judicial Activism

As said earlier that there was a change in the way in which the court looked at the
Art.21 after the emergency period. After the commencement of the constitution
and before the emergency the court adopted a very restrictive approach towards the
interpretation of this Article. The first case that came to the case in this regard
was A.K. Gopalan v. State of Madras[42], the court was encountered with the issue
of personal liberty. It looked at it in a very narrow manner and said that it would
include freedom only from false imprisonment. It included very few other rights. It
also said that the by the term ‘procedure established by law’ would mean
procedure established by any statute.
This judgment was overruled in the case of Maneka Gandhi v. Union of
India[43], it was laid down that that the term personal liberty could not be given a
narrow meaning as in Gopalan’s case, it was said that the expression could not be
looked at just from the textual meaning; it should be interpreted in a much broader
sense and it would be changing from time to time. One of the most important
aspects of this case was that it said that the meaning of the words in the
constitution would be changing from time to time and depends on the
circumstances in which the case has arisen. The right to personal liberty now
includes various rights, these includes those of freedom of speech and other rights
of the prisoner during detention[44]

The interpretation to the word life came into consideration for the first time in the
case of Francis Coralie Mullin v. Administrator Union Territory of Delhi[45],
Bhagwati J. said that right to life was the mist fundamental of the human rights,
therefore it is most important to give the most liberal and broad meaning to it.
Regarding the sentence of death penalty the court has said that it should be given,
but only in rarest cases.[46] The right to die, which earlier was included in the right
to live[47], was later said by the court not to be such.[48] The earlier case could be
said to be that of over-activism exercised by the court. However, it rectified in the
later case. As seen earlier Art. 21 have been used as a canvas by the Supreme
Court to provide the human rights to the people. This now includes rights like,
right to shelter[49], right to privacy[50], right to clean water and air[51], right to
health[52] and a number of other rights. The concern shown by the court towards
so many issues needs to be appreciated. However, there is one problem with this
kind of attitude shown by the court. It is just making laws and expects the people to
follow it and abide by it. But, it fails to understand the difficulties that will arise in
the implementation of laws as right to shelter. Practically looking at the issue it is
not possible that everyone can be provided shelter. Even if the state tries its best
then also making such a thing as fundamental right is really problematic.

Public Interest Litigation: The Interest They Serve

Public Interest Litigation is one of the important principles that the court has given
to the country. PIL are one of the three contours of judicial activism that are
developed by the judiciary. The other two are the broader interpretation given to
fundamental rights and the accountability of the officials.[53] The basic concept of
PIL is that trough it the court along with social activists is looking into the matters
of government commitment for welfare of the poor and oppressed. It is not
concerned with the rights of one individual, but with the society at large. These
petitions have brought the judges more close to the common man. The
considerations prompting such relation are to enable the Court to reach the poor
and the disadvantaged sections of society, who are denied rights and to enable
individuals or groups to raise matters of common concern arising from inefficient
governance as also to increase the public participation in the process of
constitutional adjudication.[54]
Through PIL’s the Supreme Court has provided relief to the people to a great
extent. A person might not be able to admit his case just because of the fact that he
is not adequately affected. This means that in such a case the governmental agency
can keep on violating law, even if it is violating public interest. The increasing
number of cases on PIL has been seen as the sign of faith in the judiciary. Its
importance is that with one judgment a number of people are benefited from it.[55]
There are various areas in which the courts have entertained PIL’s. The area of
these petitions range from inhuman working conditions in the stone quarries[56] to
the death of persons in police custody[57].

These petitions have brought about quite a few changes in the administration of
justice. One of the important one is that the distinction between ratio
decidendi and obiter dictum has become inconsequential with respect to PIL.[58]
The legal principles that forms the basis of a decision and without which the
decision could not have been rendered is called the ratio. The legal principles
which are explained by the Court but are not necessary in the disposal of the case
is the obiter. The case of Golaknath is an instance of the erosion of this distinction.
The dicta that Parliament cannot amend the Constitution so as to take away or
abridge the fundamental rights was strictly speaking not the ratio as the actual
decision of the Court, which was that the impugned amendments were valid, had
no direct connection with the above said dicta. But in reality, the Courts as well as
Parliament treated it as the ratio.

One of the reasons that have been given for the increase in such petitions is the
failure of the other two organs of the government, the legislature and the
executive.[59] It is only sue to the failure of both the organs to provide people with
basic facilities or violating the fundamental rights of the citizens that, the courts are
being asked to do this job. After the corruption in the government and the
executive has increased it became necessary for the people to turn to the judiciary
for relief. The judiciary has started to act as the saviour of the common people.
Another reason that can be contributed to the increase in the role played by the
judiciary is the advancement of the society in all spheres. This continuous change
does not give sufficient time to the legislature to make the possible change in the
laws and as a consequence of such the people might have to face hardships due to
the old existing laws.[60]

The Activist approach adopted by the court that has been examined in the previous
parts has proved beneficial for many in the country. The people who have
benefited most are the common people who even when their right was violated
could not approach the court.

The Positivist Approach or the Practice of Judicial Self Restraint

In the earlier part of the research paper the concept of judicial activism was looked
into. Besides exercising activism, the judiciary has also exercised self-restraint in
certain matters. Judicial self-restraint can be defined as any limitation on the
judicial decision making, other than those expressly imposed by the Constitution or
statute, is the consequence of judicial restraint. There are three basic areas in which
the judicial self restraint can be noticed; (i) political questions (ii) legislative
powers and (iii) discretionary powers of the administration.

The reason for judicial restraint in cases of political questions has been due to the
doctrine of separation of powers. This doctrine defines separate functions for each
wing of the government and one is not to interfere with the other. In the early
period of Indian constitution the approach of the court was that of judicial restraint
only. We have seen that in the case of A.K. Gopalan v. State of Madras[61], the
court adopted a very restrictive approach towards interpretation of Art. 21. The
court during that time adopted a positivist approach. In matters of personal liberty
as well as regulation of the economy, the Court observed judicial restraint and
legitimated the actions of the government. One of the reasons for this approach
adopted by the court could be that at that time the state was suppose to be a welfare
state and the duty of the court was to expand the functions of the government at
that time.

One of the examples of judicial restraint is the case of State of Rajasthan v. Union
of India[62], the court rejected the petition on the basis that it involved political
question and therefore the court would not go into the matter.` The nature of
Presidential power in this case was hypothetical in nature. This was another reason
why the court refused to look into the matter. The court encountered the situation
of Presidential power in S.R. Bommai v. Union of India[63]. They judges in this
case said that there are certain situations where political element dominates and no
judicial review is possible in such cases. The exercise of power under Art.356 was
a political question and therefore no judge answered it. Ahmadi J. said that it is
difficult to evolve judicially manageable norms to scrutinize the political decisions.
And if the courts do it then it would be entering the political thicket and
questioning the political wisdom which the court must avoid.

The self restraint with legislative powers means the reading the statute in a
particular form. The method adopted by the court is one of reading down the
statute in order to sustain its validity.[64] The reason given for this attitude is a
legislature is presumed to be more understanding towards the need of the people,
because it is an elected body. The court in certain cases has held the law to be
valid, just because of the presumption that it is passed by a competent legislature
and it should be constitutional.[65] The concept of ‘reading down’ a statute means
that the courts should read the law in such a way that it makes the consistent with
the constitution. This concept is a bit ambiguous as two judges might read a
particular statute in two different manners.[66] Judicial self restraint with respect
to discretionary powers of administration is important because in such a case there
is no direct attack on the discretionary power. The only question that the court
needs to look into is that of legality of the action. Although this area is one in
which the court exercises restraint still the court should be active. This activism
should be shown in areas where the basic human right of the person is affected.[67]

Judicial Self-Restraint and the Right to Education

The constitution of India confers a duty on the state to provide education to

everyone w In this regard, the case of Unni Krishnan[68] has become famous.
Because it made the right to free and compulsory education up to the age of
fourteen a fundamental right. When the decision was given, it was hailed as a
landmark decision in the field of rights of the child. The making of the right to
education justifiable is indeed a commendable step. But coming from the Judiciary
and not from the Legislature, it needs to be examined whether it is as
commendable as it seems. This decision comes in the context of the Judiciary
converting many of the directive principles of state policy into fundamental rights.

It is interesting to trace the decisions with respect to the right to education. In 1992,
in Mohini Jain v. State of Karnataka[69], the Supreme Court while highlighting
the importance of education to make life meaningful held that the right to
education run directly from the right to life, which according to them was a
covering expression covering all those rights which are the basic human rights and
not provided at any other place. It also imposed an obligation on the State to
provide educational institutions at All levels to its citizens. The right is now limited
to primary education only.
Despite the positive response it has received, the decision
has much left to be answered. For instance, the elevation of elementary
education to the status of a justifiable fundamental right does not explain
how such a move would reverse the conditions that prohibited the
universalisation of elementary education in the last 51 years of operation
of the Indian Constitution. In the bureaucratic rush to educate anyhow, the
substantive debates around issues such as curriculum, pedagogy, and teacher
orientation and appropriate institutional arrangements are likely to be
rendered irrelevant. Neither the judgment nor the new amendment makes any
commitment as to the quality of education to be imparted. [70] The right to
education would become meaningless if the curriculum was used for the
propagation of communalism. Thus the court has to think at the implications
of making such a judgment. There is a contrary view on this issue. It can
be said that by a complementary and holistic reading of the provisions of
Part IV and Article 142(1), the Supreme Court has sought to achieve under
Article 21 its constitutional authorization. It is just a matter of
procedure and not of substance. In essence, the Court, it is pointed out,
has not go astray any constitutional limitation; neither has it indulged in
any act of constitutional dictatorship.[71] The researcher respectfully
disagrees with this view. What the Constitution mandated is the provision
of education ‘within the limits of the State’s economic capacity.’ the
Court by making the right to education a fundamental right, though now
supported by a Constitutional Amendment, has not taken that part of Article
41 into consideration because the enforcement of a fundamental right does
not depend upon the economic capacity of the State.

Today, in India there is a lot of tussle for

engineering and medical seats in colleges. It is due to this only that the
colleges are charging high capitation fees. The Court in Unni
Krishnan’s[72] case addressed this issue with its new found dynamism. It
visualized a scheme for the medical institutions, whereby, fifty percent of
the seats were to be ‘free’ seats and the rest could be ‘payment’ so that
the latter fifty percent seats would cross-subsidize the free seats. The
logic given was that, in the earlier set-up of things, when the colleges
were free to charge any amount they wanted, the opportunities for the poor
students was radically reduced and this resulted in inequality. It was in
order to reduce this variation that the Court devised this scheme. But in
the recently decided 11 Judge Bench decision in the T.M.A.Pai
Foundation[73] case, in which Unni Krishnan was again taken into
consideration, the Supreme Court termed this above-mentioned scheme as ‘not
a reasonable restriction.’ Further, it said that the scheme imposed by the
Court made it difficult for the educational institutions to run efficiently
and hence cannot be imposed on them.[74]

There is a danger of the Judiciary creating array of

rights without the possibility of adequate enforcement. This danger will in
the ultimate analysis be counter-productive and undermine the credibility
of the Judiciary as an institution. The Court cannot create rights where
none exist.[75] In such a context it would do well for the Judiciary to
observe some restraint. Independence of the Judiciary authorization that it
is the Judiciary itself that draws the line. It cannot be something that is
imposed from the outside.

Judicial Restraint and Basic Structure

We have already seen that the judiciary has exercise its activism in the cases
related to basic structure. However, there is a change in the course which the
judiciary after the Minerva Mills case. The court has started to exercise restraint in
using the basic structure doctrine with respect to constitutional amendments. It
upheld Articles 323-A and 323-B[76], the Supreme Court looked at these tribunals
from the angle that they would reduce the burden on the High Courts. After the
decision of Kesavananda Bharti, the Supreme Court was able to successfully
invoke the basic structure doctrine only five times. This shows the change in the
political scenario and also the decreasing activism of the judiciary in this area.

However, the most important case where we can see Supreme Court exercising the
judicial self-restraint is the case of Kihota Hollohon v. Zachilhu and others[77],
the question that came before in this case was the Constitutional validity of Fifty-
Second Amendment, 1985. This amendment inserted the tenth schedule.
According to Cl.2(1) (d) said that if a person changes his political party after
getting elected to the legislature then he would loose his seat. This was challenged
on the ground that it curbed the freedom of speech of a member.[78] It was also
argued that right o vote is collateral with the freedom of speech. A five judge
bench was constituted to look into this matter. The court did not express any
opinion with regards to the provisions that violated the freedom of the members of
the legislature. The court used the doctrine of severability to exercise restraint in
this case. They held one of the para of the Tenth Schedule as invalid, and the rest
was held to be constitutional[79]. The reason given by the court was that para 7
was severable from rest of the schedule and therefore only it could be held to be
invalid.
In addition to this problem there are various political limitations attached to the
basic structure doctrine. These limitations arise of the amendments passed by the
Parliament. In Indra Sawney v. Union of India[80], the rule laid down by the court
that the reservations in the jobs should not be more than fifty percent and also,
there can be no reservation in the case of promotions. This was struck down by the
Parliament by an amendment. The Court cannot just hold the amendment
unconstitutional every time, in case where the amendment has been passed by an
absolute majority. The reason being that the legislature is an elected body, if the
court will hold all its actions as invalid then the integrity will come under scrutiny.

Separation of Powers: Judiciary-Parliament Conflict

The doctrine of separation of powers has been recognized by the American

Constitution. This doctrine implies that all the three organs of the government have
separate functions and they should not interfere with each other to a large extent.
The English does not recognize this doctrine, and it is rejected in totality. The
Indian Constitution follows a middle path.

The framers of the Indian Constitution did not recognize the doctrine in its absolute
rigidity. However, the functions of the various State organs have been spelt out
sufficiently in the Constitution. So also the Constitution itself provides for certain
occasions when there might be postulation of the functions of another organ by
some other organ of the State.[81] But the Constitution does provide for a system
of checks and balances and all the organs are bound to function within this system.
Thus, it is commonplace that the Legislature enacts the law, the Executive
implements it and the Courts interprets it and also adjudicates on the validity of the
legislation itself.

The constitution provides sufficient judicial power to the judiciary to look into the
various matters. Similarly, the legislature as well has been provided with specific
functions which it has to carry out. However, there are certain residuary powers
which are not provided to any organ of the government. But, as India follows a
democratic form of government, these powers falls in the bag of the legislature and
not the judiciary. Therefore, the judiciary should not go into the matters which fall
under the Parliament’s domain. It if does so then it would be unconstitutional in
nature, hence the judiciary does not has the power to interfere with the functions of
the other organs of the government, which it has started under the cover of
PIL’s.[82]

The past decade had witnessed the erosion of the democratic values, the executive
apathy, red-tapism, corruption, malpractices and violations of human rights
reaching their peak.. The Judiciary started ordering not only the ‘what’ and ‘when’
of its directions to be complied with by the executive but also the ‘how’ of
them.[83] In A.K.Roy v. Union of India[84], the Supreme Court issued directions
as to how the people under detention are supposed to be treated, while they are
kept in detention. In another instance[85] the Supreme Court had laid down a
number of guidelines for the appointment, transfer, tenure, status, etc., of the chiefs
of the investigating agencies like the Central Bureau of Investigation, the Central
Vigilance Commission, the Enforcement Directorate, etc. The latest illustration of
the Judiciary overstepping itself and legislating in the guise of directions is found
in the directions issued to the Election Commission requiring candidates to provide
on the affidavits information about themselves such as whether they had any past
convictions, criminal cases pending against them, , their educational credentials,
etc, in a prescribed format, failing which their nomination should be rejected.[86]

The judiciary has not only made new laws, but it has also given wider
interpretations to the existing laws. All this proves the inefficiency of the
legislature. This is also clear violation of the doctrine of Separation of Powers. If
we look at this from the other way round, then the reaction of the judiciary would
be different. If the legislature starts interfering with the judicial functions, then it is
most likely that the court would declare it unconstitutional.

The judiciary does not look into the methods by which the directions given by it
will be implemented. There is no proper guideline as to who will be looking after
the implementation part of the order. Does the judiciary has sufficient resources to
implement it? Or does it has to take the help of the executive? The answer to the
first question is an obvious no. Yes, seems to be the most obvious answer to the
second question. However, if the judiciary does so then, it would frustrate the
whole cause, as most of the PIL’s are against executive action only.

The Court has insisted that it undertook law-making through directions only to fill
in the vacuum left by the Legislature or the Executive, and that its directions can
be reinstate by legislation enacted by the Legislature and where no legislation was
required, by the Executive power, whose power is coterminous with the
Legislature. But this hardly seems to be happening. The people of India have
become politically more assertive in registering their protest, as a consequence of
this no party able to secure a majority since 1989. Coalition Governments have
become the order of the day and with that came the era of coalition politics with
the result that the Parliament of India has virtually stopped legislating.[87] Thus,
when any Bill is introduced in Parliament it is very rare that all the parties or at
least a majority of the political parties are ready to pass the Bill, with the exception
of course of Bills increasing the MPs’ salaries or other benefits! In such a situation,
it seems highly unlikely that the Government or the Legislature is going to
substitute the decisions of the Courts with legislation.

Conclusion

After dealing with both the doctrines of judicial activism and judicial self restraint,
the question that lies in front of us, which one should the Supreme Court follow.
We have seen the positive as well as the negative aspects of both. The positive
aspects of judicial activism will be negative for judicial self-restraint.

One of the positive aspects of judicial activism is the development of Public

Interest Litigation. This has helped the common man to a great extent. As earlier
the Supreme Court was an institution, which was considered to be only for the
elite, the Judges were looked at as someone living in ivory towers. But, now any
person can move the Court under PIL. With the plethora of cases that have reached
Supreme Court in last few years, have given a reformist look to the court.
However, this has certain negative points attached to it, the Judges just pass the
order which they think will help the society at large. Indeed it’s a noble cause, but
the researcher feels that the court should give the directions to the legislature and
ask it to pass a law in this area. The reason being legislature is the elected body and
it has the resources to implement the laws. Therefore, the judiciary should act as a
mediator between the common public and the Parliament.

There are areas where the courts initially showed its active nature, by striking
down various amendments made by the Parliament as unconstitutional. This was
an important role that was assumed by the court, as there should be someone who
has to monitor the working of the Parliament. As the working of the legislature is
highly politicized and therefore certain decisions are influenced by personal
interests. Thus, the role assumed by the court has helped to keep a check on this.
However, applying the doctrine of separation of powers, the judiciary should not
interfere with the working of the legislature, as then a question of integrity comes
on the legislature.

Looking at the example of education, where the Supreme Court has exercised self-
restraint, one can see that the courts should not take the role of a law maker and
started dealing with all the issues. It has to exercise restraint in certain cases
especially the one related to economic issues. It should be left to the discretion of
the legislature. However, the role that Supreme Court has played in the
interpretation of Art.21, needs to be appreciated. Many basic human rights which
were not looked at by the Constitution makers. However, in this case also the
Supreme Court has crossed certain limits and made certain rights as the
fundamental right, without even looking into the difficulties that might arise in
implementing these rights.

Thus, there are certain areas where the Supreme Court needs to practice restraint.
However, this restraint should not make the court passive. As an active court is
essential for the efficient working of the government.

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[1] Kallada Sukuram, “Indian Judiciary: Problems and

Perspectives” Cochin University Law Review 275(1997).

[2]Justice A.S. Anand, “Judicial Review-Judicial Activism-Need for

Caution”, JILI 42(1), 2000 at 151.

[3] Dr. A. Subrahmanyam, “ Judicial Activism: A Panacea For Achieving Socio-

Economic Goals” Vol.88(11) All India Reporter, 301(2001).

[4] A.H Ahmadi, former Chief Justice of India, c.f S.P. Sathe, “Judicial Activism:
The Indian Experiences”, Washington University Journal of Law and Policy.

[5] Geeta Shrivastava, “Judicial Activism in India & Abroad”, CILQ 2001

[6] 2L Ed 60 1 Cranch 137 (1803).

[7] A.S.Anand, Judicial Review – judicial activism – Need for caution, 42 J.I.L.I.
151(2000)

[8] Article 13(2), specifically mentions that the state shall not pass any law, which
affects the fundamental right of any citizen. Further, if any such law is passed
contravening this clause, and then it will be void to the extent it contravenes this
clause.

[9] Supra Note 2 at 151.

[10] Kameshwar Singh v. State of Bihar, AIR 1951 Pat. 51.

[11] (1987) 1 SCC 395.

[12] S.P.Sathe, Judicial Activism in India-Transgressing Borders and Enforcing

Limits, (Oxford University Press, New Delhi, 2002) at 28.

[13] (1868) L.R.3 H.L.330.

[14] (1932) A.C. 562.

[15] Supra Note 2 at 149.

[16] AIR 1978 SC 597.

[17] Kharak Singh v. State of U.P, AIR 1963 SC 1295.

[18] Municipal Council, Ratlam v. Vardichand AIR 1980 SC 1622.

[19] Mohini Jain v. Karnataka AIR 1992 SC 1858.

[20] Indira Gandhi v. Raj Narain AIR 1975 SC 1590.

[21] Thirty-Ninth Amendment. This amendment inserted Art. 329-A(4).

[22] The Supreme Court in this case upheld the election, but it struck down the
amendment as it was held to be opposed to the basic structure doctrine.

[23] S.P. Sathe, Judicial Activism in India-Transgressing Borders and Enforcing

Limits, (Oxford University Press, New Delhi, 2002) at 12.

[24] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

[25] Dr. Rambabu Dubey & Geeta Shrivastava, “ The Realist School and Judicial
Activism in India”, Vol.XIII (4), Central India Law Quarterly, 435 (2000).

[26] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360

[27] Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.

[28] Prem Shankar v. Delhi Administration, (1980) 3 SCR 855.

[29] Attorney General of India v. Lachmadevi, AIR 1986 Sc 467.

[30] Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.

[31] Art.368 of The Constitution of India.

[32] Indira Gandhi v. Raj Narain AIR 1975 SC 1590. Mrs. Gandhi amended the
constitution and got it passed in one day to validate her election to the Lok Sabha.

[33] AIR 1951 SC 458.

[34] AIR 1965 SC 845.

[35] AIR 1967 SC 1643.

[36] S.P. Sathe at 67.

[37] This amendment inserted Cl.4 to Art.13.

[38] AIR 1973 SC 1461.

[39] AIR 1967 SC 1643.

[40] This amendment inserted Cl. 4 and Cl. 5 to Art.368. it said that any
amendment made by the parliament could not be challenged in any court. This
included amendment of Fundamental Rights as well. It was also laid down that the
constituent power to amend the power was unlimited.

[41] (1980) 3 SCC 625.

[42] AIR 1950 SC 27.

[43] AIR 1978 SC 597.

[44] Charles Shobraj v. Superintendent, Central Jail AIR 1978 SC 1514.

[45] (1981) 1 SCC 608.

[46] Bachan Singh v. State of Punjab, SC 898.

[47] P. Rathinam v. Union of India (1994)3 SCC 394.

[48] Gian Kaur v. State of Punjab AIR 1996 SC 946.

[49] Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180.

[50] Kharak Singh v. State of U.P AIR 1963 SC 1295.

[51] M.C. Mehta v. Union of India AIR 1988 SC 1037.

[52] CERC v. Union of India (1995)3 SCC 42.

[53] Paramjit Jaswal & Nishtha Jaswal, “ Judicial Activism: The Genesis and
Progress.”, Vol.28( 2&3) Indian Bar Review, 224 (2001).

[54] S.P.Sathe, “Judicial Activism (III) Growth of Public Interest Litigation:

Access to and Democratization of the Judicial Process”, Vol. 11(1) Journal of
Indian School of Political Economy, , 6(1998).

[55] Supra Note 53 at 225.

[56] Bandhua Mukti Morcha v. Union of India AIR 1992 SC 38.

[57] D.K. Basu v. State of West Bengal (1997) 6 SCC 642.

[58] Supra Note 54 at 30.

[59] Justice Ahmadi in Zakin Hussain Memorial Lecture, New

Delhi, c.f S.Radhakrishnan, “Judicial Activism :Unbridled
Freedom”, Cochin UniversityLaw Review,. 472(1997).

[60] D. Rajeev. “Separation of powers and Judicial Activism: Tradition versus

Modernity”, Cochin University Law Review 334(1997).

[61] AIR 1950 SC 27.

[62] AIR 1977 SC 1361.

[63] (1994) 3 SCC 1.

[64] N.K.Jayakumar, Judicial Process in India, (APH Publishing Corporation,

New Delhi, 1997) at 265.

[65] Charanjit Lal v. Union of India AIR 1951 SC 41.

[66] All Saints High School v. State of Andhra Pradesh AIR 1980 SC 1042.

[67] As in the case of preventive detention. In such a case the fundamental right of
the person under detention will be violated.

[68] J.P.Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645.

[69] (1992) 3 SCC 666.

[70] Manisha Priyam and Sadhana Saxena, “new right for the
poor” Frontline, Volume 19 - Issue 11, May 25 - June 07, 2002 at (visited
on 2.11.2002) < http://www.frontlineonnet.com/fl1911/19110760.htm>

[71] Shubhankar Dam, From Past to the Future: Some reflections on judicial
activism in Human rights, Indian Bar Review, Volume 29(1) 2002, January –
March, p.176.

[72] Supra., note 88.

[73] Writ Petition (Civil) No. 317 of 1993

[74] Ibid., at paragraph 34.

[75] Supra Note 2 at 157.

[76] S.P. Sampath Kumar v. Union of India AIR 1987 SC 386.

[77] (1992)1 SCC 309.

[78] This right has been given to all the members of the legislature under
Art.194(1) of the constitution. Similarly Art. 105(1) guarantees freedom of speech
in the parliament.

[79] V.N.Shukla’s Constitution of India, Mahendra P.Singh (editor), 10th edn.,

Eastern Book Company, Lucknow, 2001

[80] AIR 1993 SC 477.

[81] The Legislature is empowered to exercise judicial function by Article 105 and
194. The Judiciary exercises legislative and executive functions under Article 145,
146, 227 and 229. Similarly, the Executive may exercise judicial functions under
Articles 103 and 192 or legislative functions under Articles 123, 213 and 356.

[82] Kallada Sukuram, “ Indian Judiciary: Problems and

Perspectives” Cochin University Law Review 282(1997).

[83] Supra Note 60 at 335-336.

[84] AIR 1982 SC 710.

[85] Vineet Narain v. Union of India, 1988 Cri.L.J. 1208.

[86] Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294.
[87] S.P.Sathe, “Judicial Activism(IV): Legitimacy” Journal of Indian School of
Political Economy, Volume 11, Number 2 (April-June), 1999, p.255.

This work is licensed under a Creative Commons Attribution-

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Table of Contents
S. No. Content Page No.
1.
Table of cases 3.
1.
Introduction 5.
1.
Research Methodology 6.
1.
Chapter 1: Finding Roots of Judicial Review 8.
1.
Chapter 2: An Overview of Judicial Activism 13.
1.
Chapter 3: Judicial Activism And Legitimacy 19.
1.
Conclusion 22.
1.
Bibliography 23.

Table of Cases

1. A.K. Gopalan v. State of Madras AIR 1950 SC 27.

2. Bachan Singh v. State of Punjab (1980) 2 SCC 684.
3. Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.
4. Bar Council of Maharashtra v. M V Dhabolkar AIR 1975 SC 2092.
5. Charles Sobrai v. Supt., Central Jail AIR 1978 SC 1514.
 6. Common Cause v. India (1996) 1 SCC 753.
7. D K Basu v. State of West Bengal AIR 1997 SC 610.
8. D. Satyanarayana v. N.T. Rama Rao (1988) 1 ALT 178.
9. Golak Nath v. State of Punjab AIR 1967 SC 1643.

10. Gourav Jain v. Union of India, (1997) 8 SCC 114.

11. Govinda v. State of M. P., AIR 1975 SC 1378.

12. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.

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

14. In Re Delhi Laws Act (1912), AIR 1951 SC 332.

15. Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281.

16. Indira Gandhi v. Raj Narain (1975) SCC (Supp) 1.

17. Kadra Khadia v. Sate of Bihar AIR 1981 SC 934.

18. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1460.

19. Kharak Singh v. U P AIR 1963 SC 1295.

20. Laxmikant Pandey v. India AIR 1987 SC 232.

21. M.C. Mehta v. Union of India (2001) 3 SCC 763.

22. Maneka Gandhi v. Union of India AIR 1978 SC 597.

23. Marbury v. Madison 2 L Ed 60 (1803).

24. Ms. Veena Sethi v. State of Bihar AIR 1983 SC 339.

25. Murli Dhar Deora v.Union of India (2001) 8 SCC 765.

26. Parmanand Katara Advocate v. Union of India, (1995) 3 SCC 248.

27. Parmananda Katra v. Union of India, AIR 1989 SC 2039.

28. People’s Union for Democratic Rights v. Union of India AIR 1982 SC 1473.

29. Prem Shankar v. Delhi Administration, AIR 1980 SC 1535.

30. Ram Jawaya Kapoor v. State of Punjab AIR 1955 SC 549.

31. Ram Pyari v. Union of India AIR 1988 Raj 124.

32. Sachidanand Panday v. State of West Bengal, (1987) 2 SCC 295.

33. Santistar Builder v. N. K. Totame, AIR 1990 SC 630.

34. Satwant Singh v. A.P.O., New Delhi, AIR 1967 SC 1836.

35. Shankari Prasad v. Union of India AIR 1951 SC 458.

36. Sheela Barse v. State of Maharashtra AIR 1983 SC 378.

37. Sheela Barse v. Union of India AIR 1986 SC 1773.

38. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.

39. T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 (2).

40. The Authorised officer Thanjuvur v. S Naganatha Iyer AIR 1979 SC 1487.

41. Unni krishnan v. State of A P MANU/SC/0333/1993.

42. Vineet Narain v. Union of India 1998 Cri L J 1208.

43. Visakha v. State of Rajasthan AIR 1997 SC 3011.

Introduction

Oliver Wendell Holmes Jr. once said: “this is a court of law, young man, not a
court of justice.”[i] This conception of the courts has undergone a massive change
from his times. Today courts are not the ‘courts of law’ but they have become
‘courts of justice’. Now the judiciary is not a mere umpire, as some assume but an
active catalyst in the constitutional scheme.[ii] In such process of change the
question that arises is, whether a man standing next to you should smoke or not or
what fuel a person must put in his vehicle to drive or whether the rivers of the
country be linked up or whether a child should go to school or not…and various
such questions which have been answered by our esteemed courts, should actually
be concern of even so-called activist courts. Whether courts were actually
manifested to deal with such policy issues and what impact does it have or may
have in the longer run on the society if it is violative of so called ‘separation of
power rules’ is the primary concern of the present paper.

As it would have become evident by now that the topic with which present paper
deals is not a new one yet remains as controversial as it ever was. There are
apparently two confronting views on the issue of the role of the judiciary in a
democratic country. First being of merely deciding the disputes brought before the
courts without looking at the consequences of the judgements. Other being of
ascribing the courts a dynamic role to further socio-economic goals envisaged
either by the basic document i.e. constitution or prevailing morality of the society.

While exploring the debate between the subscribers of both the issues, the
researcher deviating from usual style of writing a paper i.e. of first giving account
of divergent views of various scholars on the issue and then to point out their
shortcomings and then in the last to give a well-crafted opinion of one’s own,
would like to make it clear at the very outset that the Courts having been
disappointed by the slow legislative process and often their being divided by
politics, and of inactive executive, in their zeal to provide quick remedy to people
though started off as active courts but now they seem more busy in establishing
their supremacy by making everything subservient to their supervision. What the
researcher through the course of the paper would argue is that so called ‘judicial
activism’ though was taken by the courts with much reluctance poses a danger for
democracy by usurping the powers of legislature and executive.

Research Methodology

Aims and objectives:

Present paper attempts to sketch the significance of ongoing debate of role of

judiciary in a democratic country.

Scope and Limitations:

Scope of the present paper is to conceptualise and to analyse the role of judiciary.
In the present paper while discussing the same philosophical account of power of
judicial review from which judicial activism emanates has also been given. While
writing paper, the researcher does not acknowledge any difference between judicial
activism and judicial hyper activism. Therefore during the course of the paper what
is being discussed is essentially the phenomenon of judicial activism.

Research Questions:

I have attempted to answer the following questions in the present paper:

 How does judicial review protect rule of law?

 Can the Indian Courts be called to be Active Courts at all?
 Can the activist nature of the judiciary be reconciled in the context of its
detrimental effects on the rule of law?

Chapterisation:
First chapter, as is evident by the title, aim to bring into light the historical
evolution of concept of judicial review from which the concept of judicial activism
stems.

Second chapter has dealt with the various cases through which the researcher has
brought into light the activist nature of Indian judiciary.

Third chapter focuses upon the issue legitimacy of judicial behaviour.

Style of Writing:

This paper has largely descriptive style of writing. Wherever necessary the
researcher has analysed and criticized the various aspects also.

Mode of Citation:

A uniform mode of citation is followed throughout the project.

Articles in the present paper have been cited in the following manner:

Name of the Author, “Name of the article”, Vol. No. (Issue No.-if
applicable) Name of the Journal Page no. (starting) (Year of Publication), Page
No. (May Not be applicable for certain articles taken from websites).

Books in the present paper have been cited in this manner:

Name of the author (or Editor), Title of the Book, (Place of Publication: Publishing
Co., Edition (if applicable), Year), Vol. No.(if applicable), Page No..

Sources of Data:

Mainly secondary sources of data such as articles, books and electronic resources
have been used to answer the various research questions.

Finding Roots of Judicial Review

In any democratic political framework what is necessary for the smooth

functioning of the state is that every organ of the state works in conjunction with
the other without actually interfering in the province of the other organ. However
one of the biggest problems that arise is of lack of any rigid formula that guides the
executive or legislature or judiciary their respective area of functioning. The
American Constitution, the first written constitution in the world, sought to address
this by providing for a framework declaring each branch of government, namely;
the Executive, Legislature and the Judiciary, as equally powerful institutions
working under the Constitution, would have the power to maintain a check on the
functioning of the other two branches.[iii] It is in this context that the term judicial
review connotes the check maintained by the judiciary upon the functioning of the
executive and the legislature within the normative framework of the Constitution.
It serves as an institutionalized substitute to the extraordinary political act of
citizens of a democracy to an unconstitutional act by either of the two branches. To
quote Harold J. Laski:

“Law’s claim to obedience depends upon what it does to the lives of the individual
citizens…the right to resist law is the reserve power in society…. the most
effective method of resistance to undesirable and unconstitutional law is through
the judicial organ of the state by judicial review.” [iv] Judicial Review is generally
defined as institutionalized process that provides for the strengthening and creative
evolution of democracy and democratic processes.[v]

To gain deeper insight, it would be useful to consider Locke when he emphasizes

the reasons for the transition from the ‘state of nature’ to a civil society governed
by a sovereign. He understands this as being due to the desire to secure certain
basic interests of the individual from harm or detriment from other individuals
seeking to pursue fulfillment of their interests in the state of nature.[vi] It runs as a
corollary to this theorization that there are obvious limitations to the law making
power and authority of the sovereign in that it under no circumstance can cause the
infringement of what could broadly be termed as ‘the political morality’ of the
community. This ‘political morality’ lays down certain fundamental limitations
upon the powers of the State to govern and legislate. As aptly put by Locke
himself, the supremacy of the political sovereign was that which existed within law
and did not constitute power outside of law. The law that is referred to here is of
the character of a higher law to human positive law and a government functioning
within such a normative framework is said to uphold the ‘rule of law’[vii].

In the modern world this rule of law is ensured by the basic document i.e.
constitution. However in the democratic form of government there is always
susceptibility of the government compromising with the rule of the law under the
pressure of majoritarian will. Trial of Socrates is one of the prominent examples of
this situation.[viii] Within this Constitutional framework, judicial review has
become the institutionalized process by way of which the rule of law is enforced. It
forms the bridge between law and morality.[ix]

The doctrine of ‘judicial review’, in the modern world is said to have born in 1804
when Chief Justice Marshall, decided Marbury v. Madison[x]. He held that a law
repugnant to the Constitution is void and that the instrument of constitution binds
the courts as well as other departments. It was also held that if there was conflict
between a law made by the Congress and the provisions in the Constitution, it was
the duty of the court to enforce the Constitution and ignore the law. The twin
concepts of judicial review and judicial activism were thus born.[xi]
There is also a view that the above-mentioned case only traced the source of
judicial review as being implied in a written constitution. But the concept of
judicial review existed in America even before the ruling in the Madison case.

This is generally divided into two periods. In period one the constitution, or
fundamental law, was understood to be a political instrument different in kind from
ordinary law. This fundamental law, which acted as a restraint on sovereign power,
was not the part of that law subject to authoritative judicial application and
interpretation. The judicial authority to enforce the Constitution in this period was
understood to be an extraordinary political act, a judicial substitute for
revolution.[xii]

Period two provided a coherent defense of judicial authority over unconstitutional

legislation that had been absent in period one. Judicial enforcement of them was a
political act, a peaceful substitute for revolution, and the legitimacy of revolution,
whether carried out popularly or judicially, was established by governmental
invasion of natural rights.[xiii]

The introduction of the concept of judicial review in U. S. A. had greatly been

influenced with the common law tradition in England. The common law,
established itself as ‘higher law’ as early as the fourteenth century.[xiv] The great
feature of the common law is that it builds the principle case by case and therefore
is not restricted by a premise outside itself.[xv] The Magna Carta, the royal
charter, which recognizes individual liberties also greatly, influenced the
development of common law principles. Judges, as the developers of common law
principles came to be associated solely with the exposition of this ‘higher law’.
This paved the way for judicial review by the courts in England. The power of
judicial review in England reached its peak in the 17th century and Chief Justice
Coke played an instrumental role in this regard.[xvi] To quote Chief Justice Coke:

“And it appears in our books, that in many cases, the common law will control acts
of parliament, and sometimes adjudge them to be utterly void: for when an act of
parliament is against common right and reason, or repugnant, or impossible to be
performed, the common law will control it and adjudge such act to be void.” [xvii]

This has been considered by American jurists as one of the most important sources
of the notion of judicial review. Therefore what is argued is that the concept of
Judicial Review was not given birth to by Chief Justice Marshal in the case
of Marbury v. Madison[xviii], it only traced the concept of judicial review through
written constitution. This case had just enlarged the scope of judicial control and
introduced judicial supremacy.[xix]

By asserting the fact that the Supreme Court has the power to invalidate acts of
Congress that are contrary to the Constitution, though this power is not expressly
mentioned in the constitution, Chief Justice Marshall, created a controversy. The
critics argued that it amounted to usurpation of power by an unelected court and
may serve to censor legislation enacted by an elected legislature.[xx]

This is sometimes referred to as Madisonian dilemma which implies that in a

nation that emphasizes the responsiveness of office-hlders to the wishes of people
as expressed through the ballot box, by what authority then, appointed judges
judge the validity of policies enacted by democratically elected officeholders?[xxi]

In India, Unlike the United States Constitution, the Indian Constitution expressly
provides for judicial review in Article 13, clause (1), that says that all laws that
were in force in the territory of India immediately before the adoption of the
Constitution, in so far as they are inconsistent with the provisions containing the
fundamental rights, shall, to the extent of such inconsistency, be void. Clause (2) of
that article further says that the states shall not make any law that takes away or
abridges any of the fundamental rights, and any law made in contravention of the
aforementioned mandate shall, to the extent of the contravention, be void.
Therefore phenomenon of judicial review as such doesn’t poses ay problems in the
India as it is envisaged by the constitution itself.

There are two models of judicial review. One is technocratic model in which
judges act merely as technocrats and hold it invalid if it is ultra vires the powers of
legislature. However the judges all over the world have mostly disregarded this
model.[xxii] In the second model a court interprets the provisions of a constitution
liberally and in the light of the spirit underlying it keeps the constitution alive
through dynamic interpretation. A Court giving new meaning to a provision so as
to suit the changing social or economic conditions is called as active court and the
phenomenon is known as judicial activism.[xxiii] Judicial Activism is inherent in
judicial review. According to S P Sathe judicial activism is a normal phenomenon
and judicial review is bound to mature in judicial activism.[xxiv]

The term ‘Judicial Activism’ defies any precise, universally accepted definition.
An Activist judge according to Upendra Baxi is a judge who is aware that she
weilds enormous executive and legislative power in her role as judge and that this
power has to be used militantly for the promotion of constitutional values.[xxv]
According to S P Sathe, “When judges interpret the law or a constitution by not
merely giving effect to the literal meaning of the words, but by trying to provide an
interpretation consistent with the spirit of that statute or constitution, they are said
to be activist judges.”[xxvi] It is also defined as the search for the spirit of law
when the letter of the law appears to be deficient for justice in the cause.[xxvii]

An Overview of Judicial Activism

In India, the judicial activism has been very little before the 1980’s and consistent
after the 1980’s. The initial years of the Supreme Court of India saw the adoption
of an approach, which was characterised by caution and circumspection. This is
evident from its rulings in cases such as A.K. Gopalan v. State of Madras[xxviii].
Some academicians also call the Court, in its initial years as merely a technocrat
court.

In the first decade the conflict between the judiciary and Parliament[xxix], if any,
was primarily concerned with the primacy between the goals as embodied in the
directive principles of the State policy and the fundamental rights. Being more
specific, this conflict was related to the provisions the zamindari abolition and
taking over of private property.

Second decade was faced with a situation where judgment after judgment rendered
by the Supreme Court especially in the area of land reforms was nullified by
Parliament by amending the Constitution. The Court in the case of Golak
Nath v. State of Punjab[xxx] by a thin majority of 6:5 held that Article 368 of the
Constitution only provided the procedure to amend the Constitution and was not to
be construed as any independent source of power. It held that Article 368 could not
override the specific provisions of Article 13(2) and that Parliament was not
competent to amend the chapter on fundamental rights in the Constitution to take
away or abridge those rights. This was probably based on the apprehension that the
government if left free, might even take away at any time all the fundamental
rights of its citizens for its political-apolitical purposes.[xxxi]

During this decade a shift was also noted in the activism of the Supreme Court of
India which was hitherto confined to a few right to property cases. It through the
case of Kharak Singh v. U P[xxxii] held that the right to personal liberty in Article
21 included the right to privacy and therefore unregulated domiciliary visits to an
ex-convict violated article 21. This was a case, which marked the shift of judicial
activism towards the rights of Civil liberties. Here Justice K Subba Rao had
preferred for a wider meaning to be given to the words ‘personal liberty’ and
‘procedure liberty’. He was against treating the rights under article 19 (1) (d) and
article 21 as mutually exclusive. Finally in the case of Maneka Gandhi v. Union of
India [xxxiii], this shift in the judicial policy was articulated.[xxxiv]

Later in the elections in 1971, after having secured a two-third majority, congress
got the Constitution (twenty fourth Amendment) Act passed, which amended the
Articles 13 and 368 to neutralize the effect of Golak Nath case. As expected, the
validity of the Constitution (twenty fourth Amendment) Act was challenged. Since
it entailed a review of Golak Nath case, a Bench of thirteen Judges was constituted.
The question of debate before the Court included fundamental issues relating to the
basic framework of the republic, the relationship between the fundamental rights
and the directive principles, the concept of sovereignty and whether it lay with
Parliament or the people, the scope of judicial review etc. Again by a thin majority
of 7:6 the Court in Kesavananda Bharati v. State of Kerala[xxxv] held that the
power to amend does not extend to destroying or abrogating the basic structure of
the Constitution. This was a revolutionary concept and perhaps without a parallel
anywhere in the world.[xxxvi]

So, these were the three cases, which could be cited as the troika of activist
judgements before the 1980. Barring these and other instances there were hardly
any instances of judicial activism before 1980.it is only after the 1980 that the
Supreme Court of India had started asserting itself regularly and consistently.

One of the articles in the constitution that has attracted the active judges most is
article 21 due to broad interpretation given to expressions ‘life’ and ‘personal
liberty’ by the Supreme Court; article 21 has become the basis for many
unenumerated rights.[xxxvii]

The judicial activism of the Supreme Court guaranteed that article 21 stands like
a sentinel over human misery, degradation and oppression.[xxxviii]

Study of Judicial Activism in India can never be completed unless Public Interest
Litigation[xxxix] is included in it. The Supreme Court has devised an instrument
through which it has been able to consider issues pertaining to poor, the
underprivileged and the deprived who would otherwise not have a platform to seek
redressal of their grievances. Upendra Baxi has named this instrument of PIL as
Social Action Litigation.[xl] PIL is concerned not with the rights of individual but
with the interests of a class or group of persons who are either victims of
exploitation or oppression or are denied the constitutional or legal right and in most
of the cases they are not able to approach to courts for redressal for their
grievances.

This concept of PIL was which has resulted through the expansion of rule of locus
standi with Dabholkar case[xli] in 1975 but it was in 1976 that the concept was
elaborated for the first time in unequivocal terms by justice Krishna Iyer of the
Supreme Court as ‘public interest is promoted by a spacious construction of locus
standi in our socio-economic circumstances.[xlii] Supreme Court has now been
treating letters addressed to it as writ petitions and granting relief in appropriate
cases, for instances to emanicipate bonded labours[xliii] and illegal detenues[xliv];
to ameliorate the conditions of under-trial prisoners[xlv], female[xlvi] and juvenile
prisoners[xlvii]; to prevent custodial torture and deaths[xlviii]. In its zeal to
extending justice to poor, Gujarat High Court through justice M P Thakkar went to
the extent of taking Suo moto cognizance of a pathetic letter by a widow to the
editor published in a newspaper and treated as writ petitions and granted
relief.[xlix]

Under PIL, the scope of the writ of mandamus has also increased to a great extent,
because it has been issued to compel the government to do what was within its
discretion, and not to do what was not.[l] It thus allowed for an infringement into
policy matters to a certain extent.[li]
In the case of Vineet Narain v. Union of India,[lii] (Jain Hawala Diaries
Case) where continuing mandamus was defined[liii], Verma CJ held that in
certain cases it was more advantageous to not hear the matter through and issue a
simple a mandamus, but to keep the matter pending while investigations were
being carried on and to ensure that the directions were complied with. In order for
the court to make use of the remedy of a continuing mandamus, the same judges,
or at least one of the judges would have to sit on the bench to monitor the case.
This would normally be done by holding the case as part-heard, but this was not
always necessary as the court could pass the matter on to another authority to deal
with too. At the same time, although the term has been evolved only in the case
of Vineet Narain, the Court has extended its own functions through the writ
of mandamus in a similar manner in several cases prior as well as subsequent to
this case.[liv]

In the same case the Supreme Court has laid down a number of guidelines for the
appointments of chiefs of investigating agencies like CBI, CVC, the Enforcement
Directorate; apart from the chiefs of the state police. These guidelines were not
only in relation to the appointment but to also with regard to their transfer, status
and tenure, etc.[lv]

In the case of Indian Council for Enviro-Legal Action v. Union of India,[lvi] the
Court passed several directions especially to the states asking them to submit
management plans to control the pollution to both, the Central Government as well
as the Courts. The Court would go through the plans and the enforcement of the
plans in another hearing, which was set up. In this case the judges also discussed
the merits of the judiciary performing an executive function, but it was held that
this was not the case here and that the court was not usurping the function of the
executive, but only discharging its judicial functions in ensuring that it rectified
errors of the executive.

In the case of M.C. Mehta v. Union of India,[lvii] where a writ was filed with
regard to the vehicular pollution in Delhi, the Supreme Court had passed directions
for the phasing out of diesel buses and for the conversion to CNG. When these
directions were not complied with due to shortage in supply of CNG, the Court
held that orders and directions of the Court could not be nullified or modified by
State or Central governments. This was a case where, despite several directions
being given by the Supreme Court, the government didn’t act speedily in
responding to the order.

The Supreme Court had also resorted to Judicial Legislation in many of the cases
by invoking Article 142 of the Constitution, which empowers the court to give any
direction for rendering complete justice implementing the same. In the case
of Visakha v. State of Rajasthan[lviii] number of guidelines were issued by the
Supreme Court to prevent ‘sexual harassment at work place’. Here Chief justice
Verma said, “the primary responsibility for ensuring such safety and dignity
through suitable legislation, and the creation of a mechanism for its enforcement is
of the legislature and the executive. When, however, instances of sexual
harassment resulting in violation of fundamental rights of women workers under
articles 14, 19 and 21 are brought before us for redressal requires that some
guidelines should be laid down for the protection of these rights to fill the
legislative vacuum.”[lix]

Similarly in the case of Common Cause v. India[lx] (blood bank case) Supreme
Court had issued guidelines as to how blood transfusion could be made free from
hazards. In Laxmikant Pandey v. India[lxi] the Supreme Court gave directions as
to what procedures should be followed and what precautions should be taken while
allowing Indian children to be adopted by foreign adoptive parents. There was no
law to regulate inter-country adoptions and such lack of regulation could cause
incalculable harm to Indian children. Here Justice Bhagwati laid down an entire
scheme for regulating inter-country adoptions and intra-country adoptions.

In the case of Murli Dhar Deora v.Union of India[lxii] the Supreme Court banned
smoking in public places as it adversely affected the right to life of passive
unwilling smokers and held that the various authorities should report to it in 6
weeks time to give a report of their progress. While there was strict
implementation in the initial phase, the administration soon became lax in
imposing fines and catching offenders. Since the remedy was a contempt of court
action, it was not used frequently.

Judicial Activism And Legitimacy

For any one who has to sit through what today passes for ‘proceedings’ in our
legislatures, the courts are heavens of rationality, of reasoned discourse. For
someone who had the misfortune of having got entangled even once in the
Kafkaesque world of our municipal authorities and the police, the courts are
sanctuaries – of safety, bastions against extortion. Someone who has to wade
through government files, and endure those interminable meetings, will be driven
into looking upon at least some of our courts as models of dispatch.

-Arun Shourie.[lxiii]

But does it mean that the decision-making power in every sphere of life be given to
the Courts. Are courts competent to decide or adjudicate upon issues other than
legal in nature, is the biggest question that arises from a mere reading of the
preceding chapter.

It is said that the judicial activism is triply offensive. It is undemocratic as judges

are unelected officials, it is inefficient because courts do not have the knowledge to
make god law and it undermines the ‘rule governance’ by introducing elements of
arbitrariness into the legal system.[lxiv] However what the researcher thinks is that
to eliminate the judicial creativity fully which is a part of judicial activism or vice-
versa is not possible neither is it feasible. However what Hart, a distinguished jurist
has propounded seems to be a correct domain in which judges must confine
themselves while deciding an issue. Hart who is essentially a positivist, propounds
the concept of ‘open texture of law’ where judges can not always adhere to or
apply the mechanical or deductive approach and they have to use their discretion
while deciding. In his view it is only in this area that the judges are allowed to
strike a balance between competing interests.[lxv] An example of open texture of
law in the constitution in the opinion of the researcher could be ‘state’ used in
article 12. Words ‘life and personal liberty’ can also be to a certain extent counted
to fall in the same category. However in the opinion of the researcher the way the
court has interpreted article 21 is an example of spurious interpretation not of
liberal interpretation.

The Supreme Court in the case of Delhi Laws case[lxvi], observed that the
separation of powers is the essence of the Constitution. Though it had also
accepted the fact there cannot be any absolute rigidity in their separation of
powers[lxvii], nonetheless it was raised to the status of basic structure of the
constitution in Indira Gandhi v. Raj Narain[lxviii]. The same was reiterated in the
case of Keshavanada Bharti v. Union of India[lxix]. The Court elevated this
feature of separation of powers to the basic structure of the Constitution.

However what the court as we have seen through the cases been doing is violating
the same basic structure in the name of interpreting the constitution liberally to suit
the changing economic and social circumstances.

In the opinion of the researcher even the way court has been using the concept of
PIL tends to narrow the divide between the roles of the various organs and has
invited controversy for mainly this reason.[lxx] For example, while solving a
problem against pollution, the Court must ensure that the public is not
inconvenienced greatly, and the matter is essentially the concern of executive to
carry out certain necessary measures and therefore the court has to moderate its
directions and play a balancing role.

Recently, the Court had berated the Gujarat government for failing to punish those
behind the communal riots that ravaged the state last year, and went as far as
telling the administration that it should resign if it could not do better.[lxxi] While
the Constitution recognizes the concept of checks and balances, in going as far as
stopping the government from implementing a policy decision, the Court may have
overstepped its limits.

Legitimacy of an action as a concept embraces three things within its fold. Firstly it
must be legally valid. Secondly there must be a widely shared feeling among the
people that they have a duty to obey the law. Thirdly there must be actual
obedience of the law by a large number of people.[lxxii]

In the opinion of the researcher the various decisions of the court actually follow
the last two above-mentioned conditions of legitimacy, however they fail to satisfy
the first condition because, and the judiciary by passing the decisions of this sort is
doing nothing but acting in violation of the constitutional mandate i.e. of
separation of powers.

As far as the cases of judicial legislation is concerned in the opinion of the

researcher, the court must refrain from adopting such measures as it had adopted in
the cases like Visakha. This is essentially because while deciding the cases what
the court has in front of it is only the adjudicative facts not the legislative facts.
According to M M Punchi J. (as he then was), “an activist court is not fully
equipped to cope with the details and intricacies of legislative subject and can at
best advise and focus attention on the state policy problem and shake it from
slumber, goading it to awaken, march and reach the goal. For, in whatever measure
be the concern of the court, it compulsively need to apply, somewhere and at
sometimes brakes to its self- motion, described in judicial parlance as ‘judicial self-
restraint’.”

In the matters of continuing mandamus, when courts take on an active role and
take-over functions of the executive, the traditional litigation would suffer and
would take a back seat as the judiciary would be too busy taking over the role of
the executive.[lxxiii]

Conclusions

The rationale behind the doctrine of separation of powers is that the merger of all
powers in a single body will result in autocracy and negation of individual
liberty.[lxxiv] To avoid this situation concept of judicial review took birth. There
are two models of this judicial review. First one is technocratic model in which
judges act merely as technocrats and hold the legislation or an action invalid if it
is ultra vires the constitution. In the second model a court interprets the provisions
of a constitution liberally and in the light of the spirit underlying it keeps the
constitution alive through dynamic interpretation. This second model of judicial
review gave birth to judicial creativity, which brought out the phenomenon of
judicial activism.

In the opinion of the researcher judiciary by devising various strategies in the name
of doing justice has usurped the function of other organs.[lxxv] This view has been
shared by S P Sathe also, where he says that the Supreme Court has crossed the
limits of the judicial function and has undertaken functions that belong to other
organs of the State, thus violating the doctrine of separation of powers.
In the opinion of the researcher recent trend of the Court’s decisions reflect their
ambition of establishing supremacy of judicial organ over other branches. A five-
member Bench of the Andhra Pradesh High Court in D. Satyanarayana v. N.T.
Rama Rao[lxxvi] has gone to the extent of laying down the proposition that the
executive is accountable to the public through the instrumentality of the judiciary.

This is extremely alarming situation, the solution to which is none other than
judicial-self restraint.

Bibliography
Articles:

1. A Glass, “The Vice of Judicial Activism”, in T Campbell, et.

al., (ed.), Judicial Power, Democracy & Legal Positivism, (Dartmouth:
Ashgate, 2000).
2. A M Ahmadi, “Judicial Process: Social Legitimacy and Institutional
Viability”, (1996) 4 SCC (Jour) 1.
3. Ashok H. Desai, et.al., “Public Interest Litigation: Potential and Problems”,
in, B.N. Kirpal et al., Supreme but not Infallible: Essays in Honour of the
Supreme Court of India, (New Delhi: OUP, 2000).
4. D Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic
Justification for Judicial Review”, in, C Forsyth, Judicial Review and the
Constitution, (Portland: Hart Publishing, 2000).
5. D K Bhatt, “Judicial Activism Through Public Interest Litigation: Trends
And Prospects” 25 (1) Indian Bar Review 37 (1998).
6. E S. Corwin, “The ‘Higher Law’ Background of American Constitutional
Law” 42 Harvard Law Review 149 (1928).
7. G B Reddy, “Supreme Court And Judicial Activism- An overview of Its
Impact on Constitutionalism”, 3 Supreme Court Journal 18 (2001).
8. G Shrivastava, “Judicial Activism in India and Abroad”, 14 Central India
Law Quarterly 155 (2001).
9. H S Mattewal, “Judiciary and the Government in the Making of Modern
India”, 1 SCC (Jour) 19 (2002).

10. J Laws, “Judicial Review and the Meaning of Law”, in, C Forsyth, Judicial
Review and the Constitution, (Portland: Hart Publishing, 2000).

11. M.N. Rao, “Judicial Activism”, 8 SCC (Jour) 1 (1998).

12. P S Jaiswal, et.al, “Judicial Activism: The Genesis And Progress”, 28 Indian
Bar Review 221 (2001).

13. R P Bhatia, “Evolution of Judicial Activism in India”, 45 (2) Journal of Indian

Law Institute 262 (2003).
14. R Ramchandaran, “Supreme Court and the Basic Structure Doctrine” in B.N.
Kirpal, et. al. (ed.) Supreme But Not Infallible – Essays in Honour of The Supreme
Court of India, (New Delhi : OUP, 2000).

15. S Miglani, “Indian SC Asserts Judicial Activism”, available

at, www.dawn.com/2003/09/18/int17.htm, visited on 30th October 2003.

16. S P Sathe, “Judicial Activism: Indian experience”, 6 Washington University

Journal of Law and Policy 29 (2001).

17. U Baxi, “On The Shame Of Not Being An Activist: Thoughts On Judicial
Activism”, 11 (3) Indian Bar Review 259 (1984).

18. V Upadhyay, “Changing Judicial Power” 35(43 & 44) Economic and Political
Weekly 3789 (2000).

Books:

1. A Altman, Arguing About Law: An Introduction to Legal

Philosophy (Belmont: Wadsworth Publishing Company, 2001).
2. A Shourie, Courts And Their Judgements – Premises, Prerequisites,
Consequences, (New Delhi: Rupa & Co., 2001).
3. C Jha, Judicial Review of Legislative Acts (Bombay: N.M. Tripathi Pvt.
Ltd., 1974).
4. C R Ducait, Constitutional Interpretation-Powers of Government, (Balmont:
Wadsworth, 7th edition, 2000).
5. H.L.A. Hart, The Concept of Law, (London: OUP, 1961).
6. Lloyd, et. al., Lloyd’s Introduction to Jurisprudence (London: Stevens &
Sons, 1985).
7. M.P. Jain, Indian Constitutional Law (Nagpur: Wadhwa & Co., 5th edition.,
2003), Volume I.
8. S P Sathe, Judicial Activism in India, (New Delhi: OUP, 2002).
9. S Snowiss, Judicial Review and the Law of the Constitution, (Delhi:
Universal Law Publishing Co. Ltd., 1996).

Miscellaneous:

1. Lecture by M Kirby, Judge High Court of Australia, 15th Dec. 2003.

2. Constitution of India, 1950.

[i] P S Jaiswal, et.al, “Judicial Activism: The Genesis And Progress”, 28 Indian
Bar Review 221 (2001), p.221.

[ii] See, The Authorised officer Thanjuvur v. S Naganatha Iyer AIR 1979 SC 1487.
[iii] A Altman, Arguing About Law: An Introduction to Legal
Philosophy (Belmont: Wadsworth Publishing Company, 2001), p.81.

[iv] C Jha, Judicial Review of Legislative Acts (Bombay: N.M. Tripathi Pvt. Ltd.,
1974), p. xi.

[v] Id.

[vi] Lloyd, et. al., Lloyd’s Introduction to Jurisprudence (London: Stevens & Sons,
1985), p.117.

[vii] The concept of ‘rule of law’ can broadly be characterized by the three
principles. The government must operate under ‘the law’. Government must
regulate society through a system of general and authoritative rules. The rules
established by government should give individuals fair warning and chance to
defend themselves upon being formally charged for violation of the rules, be made
public, be reasonably clear in meaning and specific to the action it seeks to curtail,
be in force for a reasonable period of time, be applied prospectively, be applied
impartially, possible to comply with. See, A Altman, Arguing About Law: An
Introduction to Legal Philosophy, (Belmont: Wadsworth Publishing Company,
2001), p.7.

[viii] A Altman, Arguing About Law: An Introduction to Legal Philosophy,

(Belmont: Wadsworth Publishing Company, 2001), p.79.

[ix] D Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic

Justification for Judicial Review’, in, C Forsyth, Judicial Review and the
Constitution, (Portland: Hart Publishing, 2000), p. 141.

[x] 2 L Ed 60 (1803). In the present case, the U.S. Federal Government appointed
Marbury, Judge under the Judiciary Act of 1789. Though the warrant of
appointment was signed it could not be delivered due to some political tussle.
Marbury brought an action for issue of a writ of mandamus. Justice Marshall, here,
faced the imminent prospect of the Government not obeying the judicial fiat if the
claim of Marbury was to be upheld. In a rare display of judicial statesmanship
asserting the power of the Court to review the actions of the Congress and the
Executive, Chief Justice Marshall declined the relief on the ground that Section 13
of the Judiciary Act of 1789, which was the foundation for the claim made by
Marbury, was unconstitutional since it conferred in violation of the American
Constitution, original jurisdiction on the Supreme Court to issue writs of
mandamus. See generally, M.N. Rao, “Judicial Activism”, 8 SCC (Jour) 1 (1998).

[xi] See, M.N. Rao, “Judicial Activism”, 8 SCC (Jour) 1 (1998).

[xii] S Snowiss, Judicial Review and the Law of the Constitution, (Delhi: Universal
Law Publishing Co. Ltd., 1996), p.2.

[xiii] Id.

[xiv] E S. Corwin, “The ‘Higher Law’ Background of American Constitutional

Law” 42 Harvard Law Review 149 (1928), p. 171.

[xv] J Laws, “Judicial Review and the Meaning of Law”, in, C Forsyth, Judicial
Review and the Constitution, (Portland: Hart Publishing, 2000), p.170.

[xvi] C Jha, Judicial Review of Legislative Acts (Bombay: N.M. Tripathi Pvt. Ltd.,
1974), p.154.

[xvii] E S. Corwin, “The ‘Higher Law’ Background of American Constitutional

Law” 42 Harvard Law Review 149 (1928), p.368.

[xviii] 2 L Ed 60 (1803).

[xix] S Snowiss, Judicial Review and the Law of the Constitution (Delhi: Universal
Law Publishing Co. Ltd., 1996), p.4.

[xx] S P Sathe, “Judicial Activism: Indian experience”, 6 Washington University

Journal of Law and Policy 29 (2001).

[xxi] C R Ducait, Constitutional Interpretation-Powers of Government, (Balmont:

Wadsworth, 7th edition, 2000), pp.E1-E2.

[xxii] Lecture by M Kirby, Judge High Court of Australia, 15th Dec. 2003.
According to former Chief Justice of India, A M Ahmadi, judicial activism is a
necessary adjunct of the judicial function since the protection of public interest as
opposed to private interest happens to be its main concern. See, A M Ahmadi,
“Judicial Process: Social Legitimacy and Institutional Viability”, (1996) 4 SCC
(Jour) 1.

[xxiii] S P Sathe, Judicial Activism in India, (New Delhi: OUP, 2002), pp.5-6.

[xxiv] Ibid., p.5.

[xxv] U Baxi, “On The Shame Of Not Being An Activist: Thoughts On Judicial
Activism”, 11 (3) Indian Bar Review 259 (1984), p.259.

[xxvi] S P Sathe, “Judicial Activism: Indian experience”, 6 Washington University

Journal of Law and Policy 29 (2001).
[xxvii] G Shrivastava, “Judicial Activism in India and Abroad”, 14 Central India
Law Quarterly 155 (2001), p.162.

[xxviii] AIR 1950 SC 27.

[xxix] The Supreme Court had interpreted the word “compensation” in Article 31
to mean a fair equivalent value for the property taken. When the Government
intruded on these rights, the Courts prevented them. To level these situations, the
Government brought in the First Amendment. However the challenge to the First
Amendment was repelled in the case of Shankari Prasad v. Union of India AIR
1951 SC 458. The Court unanimously held that an amendment of the Constitution
was not law within the meaning of Article 13 of the Constitution and as such was
not prohibited by Article 13(2).

[xxx] AIR 1967 SC 1643.

[xxxi] Shri M.C. Setalvad, India’s first Attorney-General commenting on Golak

Nath wrote: “The majority decision clearly appears to be a political decision not
based on the true interpretation of the Constitution, but on the apprehension that
Parliament, left free to exercise its powers, would, in course of time, take away the
citizen’s fundamental rights, including his freedom.”, Quoted in R Ramchandaran,
“Supreme Court and the Basic Structure Doctrine” in B.N. Kirpal, et.
al. (ed.) Supreme But Not Infallible – Essays in Honour of The Supreme Court of
India, (New Delhi : OUP, 2000), p. 108.

[xxxii] AIR 1963 SC 1295.

[xxxiii] AIR 1978 SC 597. In Bachan Singh v. State of Punjab (1980) 2 SCC 684,
a Constitution Bench, speaking through Sarkaria, J. stated that after Maneka
Gandhi case Article 21 must read as: “No person shall be deprived of his life or
personal liberty except according to fair, just and reasonable procedure established
by valid law.”

[xxxiv] S P Sathe, Judicial Activism in India, (New Delhi: OUP, 2002), pp.52-53.

[xxxv] AIR 1973 SC 1460.

[xxxvi] H S Mattewal, “Judiciary and the Government in the Making of Modern

India”, 1 SCC (Jour) 19 (2002).

[xxxvii] Supreme Court in the case of Unni krishnan v. State of A P

MANU/SC/0333/1993 has held that several unenumerated rights fall within Art. 21
since personal liberty is of widest amplitude. The following rights are held to be
covered under Art. 21: The Right to go abroad — Satwant Singh v. A.P.O., New
Delhi, AIR 1967 SC 1836; The right to privacy — Govinda v. State of M. P., AIR
1975 SC 1378; The Right against solitary cofinement —Sunil Batra v. Delhi
Administration, AIR 1978 SC 1675 ; The Right against Bar fetters — Charles
Sobrai v. Supt., Central Jail. AIR 1978 SC 1514; The Right to legal aid –
Hoskot v. State of Maharashtra, AIR 1978 SC 1548; The Right to speedy trial —
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360; The Right against
Handcuffing — Prem Shankar v. Delhi Administration, AIR 1980 SC 1535; The
Right against delayed execution —T.V. Vatheeswaran v. State of Tamil Nadu, AIR
1983 SC 361 (2); The Right against custodial violence — Sheela Bhasre v. State of
Maharashtra AIR 1983SC 378; The Right against public hanging —A.G. of
India v. Lachmadevi, AIR 1986 SC 467; Doctor’s Assistance — Parmananda
Katra v. U.O.I., AIR 1989 SC 2039; Shelter — Santistar Builder v. N. K. Totame,
AIR 1990 SC 630.

[xxxviii] G B Reddy, “Supreme Court And Judicial Activism- An overview of Its

Impact on Constitutionalism”, 3 Supreme Court Journal 18 (2001), p.20.

[xxxix] Henceforth referred to as PIL.

[xl] See, R P Bhatia, “Evolution of Judicial Activism in India”, 45 (2) Journal of

Indian Law Institute 262 (2003), p.270.

[xli] Bar Council of Maharashtra v. M V Dhabolkar AIR 1975 SC 2092, where the
court held that ‘State Bar Council’ is a ‘person aggrieved’ to maintain appeal.

[xlii] D K Bhatt, “Judicial Activism Through Public Interest Litigation: Trends

And Prospects” 25 (1) Indian Bar Review 37 (1998), p.40.

[xliii] Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802; See
also People’s Union for Democratic Rights v. Union of India AIR 1982 SC 1473.

[xliv] Ms. Veena Sethi v. State of Bihar AIR 1983 SC 339.

[xlv] Kadra Khadia v. Sate of Bihar AIR 1981 SC 934.

[xlvi] Sheela Barse v. State of Maharashtra AIR 1983 SC 378.

[xlvii] Sheela Barse v. Union of India AIR 1986 SC 1773.

[xlviii] D K Basu v. State of West Bengal AIR 1997 SC 610. Here court laid down
detailed guideline cum requirements for arresting authority, memo of arrest.
Information to relative or friend regarding time and place of arrest and venue of
detention, etc.

[xlix] See, D K Bhatt, “Judicial Activism Through Public Interest Litigation:

Trends And Prospects” 25 (1) Indian Bar Review 37 (1998), p.41. In a similar
instance, a news item carried in a Rajasthan daily depicting miseries of a soldier’s
widow attracted the attention of the Rajasthan High Court and the court took suo
moto action on the news item and treated it as writ petition. See, Ram
Pyari v. Union of India AIR 1988 Raj 124.

[l] S.P. Sathe, Judicial Activism in India, (New Delhi: OUP, 2002), pp. 219-220.

[li] S P Sathe, “Judicial Activism: Indian experience”, 6 Washington University

Journal of Law and Policy 29 (2001). An example of this would be when the court
allowed a petition to ensure that the state provided education for the children of
prostitutes (Gourav Jain v. Union of India, (1997) 8 SCC 114) or when it allowed
a petition impugning a provision in the jail manual for allowing a person to be left
hanging for half an hour after death stating that this was against the basic human
dignity (Pt. Parmanand Katara Advocate v. Union of India, (1995) 3 SCC 248).

[lii] 1998 Cri L J 1208.

[liii] Here the Court observed: “…in the view of the nature of these proceeding
wherein innovations in procedure were required to be made from tome to time to
sub-serve the public interest, avoid any prejudice to the accused and to advance the
case of justice. The medium of ‘continuing mandamus’ was a new tool forged
because of the peculiar needs of the matter.” See, Ibid., p.1219.

[liv] The first case, where such a principle evolved was in the Bandhua Mukti
Morcha case, where a writ petition was filed to improve the conditions of several
workers who were working in inhumane conditions in certain mines. The Judge
held that this was against the worker’s right to life and the state was directed to
ensure the welfare of the workers. The Court then continued to monitor the actions
taken by the state. This was the first instance where the Court exercised its powers
to issue a continuing mandamus against the state although it wasn’t called so.

[lv] See, G B Reddy, “Supreme Court And Judicial Activism- An overview of Its
Impact on Constitutionalism”, 3 Supreme Court Journal 18 (2001), p.25.

[lvi] (1996) 5 SCC 281.

[lvii] (2001) 3 SCC 763.

[lviii] AIR 1997 SC 3011.

[lix] Ibid., pp.3011-3012.

[lx] (1996) 1 SCC 753.

[lxi] AIR 1987 SC 232.

[lxii] (2001) 8 SCC 765.

[lxiii] A Shourie, Courts And Their Judgements – Premises, Prerequisites,
Consequences, (New Delhi: Rupa & Co., 2001), p 399.

[lxiv] A Glass, “The Vice of Judicial Activism”, in T Campbell, et.

al., (ed.), Judicial Power, Democracy & Legal Positivism, (Dartmouth: Ashgate,
2000), p.355.

[lxv] H.L.A. Hart, The Concept of Law, (London: OUP, 1961), p. 125.

[lxvi] In Re Delhi Laws Act (1912), AIR 1951 SC 332.

[lxvii] Ram Jawaya Kapoor v. State of Punjab AIR 1955 SC 549.

[lxviii] (1975) SCC (Supp) 1.

[lxix] AIR 1973 SC 1460.

[lxx] Ashok H. Desai, et.al., “Public Interest Litigation: Potential and Problems”,
in, B.N. Kirpal et al., Supreme but not Infallible: Essays in Honour of the Supreme
Court of India, (New Delhi: OUP, 2000), p.177.

[lxxi]S Miglani, “Indian SC Asserts Judicial Activism”, available at,

www.dawn.com/2003/09/18/int17.htm, visited on 30th October 2003.

[lxxii] S.P. Sathe, Judicial Activism in India, (New Delhi: OUP, 2002), p. 254.

[lxxiii] Sachidanand Panday v. State of West Bengal, (1987) 2 SCC 295.

[lxxiv] M.P. Jain, Indian Constitutional Law (Nagpur: Wadhwa & Co., 5th edition.,
2003), Volume I , pp.217-218.

[lxxv] See also, V Upadhyay, “Changing Judicial Power” 35(43 & 44) Economic
and Political Weekly 3789 (2000), p. 3792.

[lxxvi] (1988) 1 ALT 178 cited from, M.N. Rao, “Judicial Activism”, 8 SCC
(Jour) 1 (1998).

This work is licensed under a Creative Commons Attribution-

NonCommercial-NoDerivs 2.5 India.

Print this

Social Action Litigation – Concepts, Grounds and

Approaches- Workings
0
6 years
by Contributed Papers in Judicial Activism

Print this

Table of Contents

Table of Cases.. 1

Table of Statutes.. 2

Introduction.. 3

Research Methodology.. 6

SAL in India – Locus Standi. 8

SAL in India – The Other Side.. 10

Attitude of Courts toward SAL.. 12

Conclusion.. 14

Table of Cases

Indian Cases:

 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, at 236.

 Bihar Legal Support Society v. Chief Justice of India ,(1986) 4 SCC 767.
 Centre for Legal Research v. State of Kerela, A 1986 SC 2195.
 Charanjit Lal v. Union of India, AIR 1951 SC 41.
 Dev Sebastian v. PR Kurup, A.I.R. 1997 Kerela 214.
 Dilip Karambelkar v. Rear Admiral Vishnu Bhagwat, AIR 1997 Bombay
131.
 Dr. Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106.
 Maharaj Singh v. Uttar Pradesh, A.I.R. 1976 Supreme Court 2602, at 2609.
 Rakesh Chand Narain v. State of Bihar, (1986) Supp. SCC 576.
 Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, (1986)
Supp. SCC 517.
 S.P. Gupta v. Union of India, (1982) 2 S.C.R 365, at 520.
 State of Himachal Pradesh v. A parent of A Student of Medical College,
Simla, (1985) 3 SCC 169.
Table of Statutes

 Constitution of India, 1950.

Introduction

Apart from laying down the law of the land, the Constitution of our country also
guarantees many rights to the citizens of India. But what possible use can this
guarantee be if the common man does not get the benefits that were envisaged by
the framers of the Constitution. The fact of the matter remains that even today in
India, after it has developed so much and is counted amongst the fastest growing
economies in the world, the poor man in India has no guarantee of two square
meals in a day, no guarantee of a job that pays him enough for him to feed his
family, in short, the poor and the illiterate are still denied the very basic human
rights in India. Even more importantly, even the basic fundamental rights that are
‘guaranteed’ to him by the Constitution are denied to him again and again. And
one of the chief reasons why this happens is that often the person is not even aware
that his fundamental right is being violated. In the past, even if he did realize that
something of the sort was happening, he often did not have the knowledge about
what actions he must take to counter it, or he just did not have enough money and
could not afford to go to court of law. In order to counter this situation and to make
sure that the ignorant and the poor are not exploited by those who are in a position
to do so, the concept of Social Action Litigation (SAL) came in.

“The majority of the people of our country are subjected to denial of access to
justice and, overtaken by despair and helplessness, they continue to remain victims
of an exploitative society where economic power is concentrated in the hands of a
few and is used for perpetration of domination over large masses of human
beings.”[1]

Social Action Litigation, which is also known as PIL and can be defined simply as
the litigation in the interest of the general public. Before the 1980s only the directly
affected party had the locus standi to approach the court of law in order to seek
justice,[2] and a person who was not being affected directly had no standing at all
to go to the court on behalf of someone else even if someone who was not able or
aware enough to approach the court of law was being denied his or her rights.

As a result the rights of the uneducated part of the population were often abused or
violated as the illiterate did not actually know about the remedies that can be
sought in the court of law if and when there fundamental rights were denied or
violated by anyone in any way.
Although SAL is not defined in any statute or act, it has been interpreted by judges
as to be the intent of the public at large. SAL is in fact read into Article 32 if the
Indian constitution. So where the subject is the breach of a fundamental right, the
court can be approached with a PIL under Article 32, and when the subject is a
‘legal wrong’, the High Court can be approached under Article 226 of the Indian
Constitution. There are various areas where a Public Interest Litigation can be
filed, such as:

 violation of fundamental or religious rights

 content or conduct of government policy
 compel municipal authorities to perform their duties
 violation of the human rights of the poor.[3]

All the above are the general scenarios which have been laid down so as to make
sure that they cover the most frequent situations in which the common poor man
faces exploitation. And if any one of them is applicable to a given situation then a
PIL can be filed in the court of law.

It must be noticed that although the concept of SAL has actually been taken from
the judicial system of USA, the scope of SAL is severely limited in India as
compared to USA. In India, the courts have taken a social problem, of no justice
being done to the poor and the needy, and facilitate the old Indian tradition of
voluntary social service and make sure that people can approach the court on
behalf of the poor[4], while in the USA the concept is very different. Most of the
litigation in the field of PIL is not merely in the realm of human rights, a
considerable portion of it is also initiated by private organizations seeking their
own interests, which also happen to collide with the general interests of the public.
However, in India the concept of SAL itself suggests its main purpose and the
intent of the judges in introducing it. While in the USA, the term used is Public
Interest Litigation, in India the more fitting term for such litigation is Social Action
Litigation, and it is so because as the name suggests, the courts are very reluctant
to allow PILs to be used for furthering the interests of certain parties, and the focus
is mainly on furthering litigation which will improve the social conditions in India.

The researcher at this point itself would like to make sure that the scope of the
project is clear. Since the topic on which the research paper is based is Social
Action Litigation, the researcher has focused on this phenomenon in the context of
India itself, and not as it is understood in its wider meaning. This is so because
although Social Action Litigation is a term used interchangeably with Public
Interest Litigation as it is understood in other countries, however in the context of
our country it acquires a different meaning, as explained in the above paragraph.
The concept in India is one for achieving social justice for the poor and the
disadvantaged, with the courts being downright hostile to those who approach the
court with their own interests garbed as public interest.
Research Methodology

A. Aims and Objectives

The aim of this project is to understand the concept of Social Action Litigation.
The focus being India, for reasons given under the heading below, the objectives
are to identify and analyze the motives behind SAL in India, its implementation,
and its current status.

B. Scope and Limitations

Since Social Action Litigation is what may be called as the Indian counterpart of
Public Interest Litigation as it is understood in western countries, the researcher
has limited the scope of the project to study this phenomenon within India itself
and has limited references to its practice in other countries only when it is
necessary in order to properly understand or elucidate a point. In this project, for
purposes of simplicity, so that the concepts are clearer, SAL and PIL have been
used more or less interchangeably unless the researcher is drawing a distinction
between the two.

C. Research Questions
The main research questions are:

 What exactly is Social Action Litigation?

 What was the need for Social Action Litigation in India?
 How did this concept come into India?
 Has it been correctly and completely implemented in the country, and where
do the Indian courts stand with respect to Social Action Litigation?

D. Chapterization
The project is divided into several chapters, each dealing with different aspects of
Social Action Litigation in India. The first chapter deals with the issue of locus
standi and its solution. The next two chapters deal with the misuse of social action
litigation, and the attitude of the Indian courts towards social action litigation
respectively. This is followed by the conclusion.

E. Methodology
The method of writing adopted is both descriptive and analytical.
F. Sources of Data
For this paper, the researcher has relied upon secondary sources of data- i.e., books
and internet websites and articles.

G. Mode of Citation
A uniform mode of citation has been followed throughout the paper.

SAL in India – Locus Standi

Despite the Constitution guaranteeing many rights to the people of India, due to the
abject poverty and illiteracy of many, these rights are often violated with impunity
because the people who violate them are sure that they will not be punished for the
same. The usual manner of claiming one’s rights by initiating litigation against
those who violate them are not available to the poor and the uneducated because
often they are not aware of how to approach these matters.

Even of someone was concerned enough to inform these people of their rights and
their violation, nothing could come out of it as the poor were either lacking funds
to initiate and then sustain litigation, or were just lacking faith in the judicial
system. To resolve this issue, and to make the courts more accessible to the
deprived and the illiterate[5], the Supreme Court had to relax the long standing
rule of locus standi. Two people who were instrumental in introducing the concept
of Social Action Litigation were P.N. Bhagwati and V R Krishna Iyer, JJ. As a
result of their efforts now any individual or organization can freely approach the
court with any case which involves the general social good, and is in the interest of
the public, and do so without the fear of incurring heavy costs which are involved
in private litigation.

As Bhagwati C.J. said in the case S.P. Gupta v. Union of India[6]

“Where a legal wrong or a legal injury is caused to a person or to a determinate

class of persons…and such a person or determinate class of persons is by reasons
of poverty, helplessness or disability or socially or economically disadvantaged
position, unable to approach the court for relief, any member of the public can
maintain an application for appropriate direction…”

Yet another decision of the Supreme Court, from which the following excerpt is
taken clearly shows the intent of the Supreme Court of India, “Where a wrong
against community interest is done, ‘no locus standi’ will not always be a plea to
non-suit an interested public body chasing the wrong doer in court…Locus standi
has a larger ambit in current legal semantics than the accepted, individualistic
jurisprudence of old.”[7]

The fact that locus standi if interpreted in the manner in which it was interpreted
earlier, being a product of Anglo Saxon Jurisprudence, would merely create
hurdles in achieving the purpose of social good, and ensuring that the poor and the
needy were not deprived of their rights, .

For example in a case[8] where an organization brought a petition to the court on

the behalf of workers working in a stone quarry in appalling conditions, the court
did not dismiss the petition on the grounds that since the rights of the organization
as such were not directly affected, they could not bring an action in the court,
rather it accepted and decided on the case after holding that the very conditions
which had necessitated the filing of the litigation were enough for the suit not to be
dismissed because the party bringing the matter to the attention of the court did not
have locus standi.

SAL in India – The Other Side

While it cannot possibly be doubted that Social Action Litigation in India has gone
a long way in ensuring that the fundamental rights granted by the Constitution to
the people of India are not violated, at the same time one must also consider the
fact that in actuality, SAL is not the pure form of delivering justice to the poor that
it was once thought to be. While it is no doubt helping the people in making sure
that no violation of fundamental rights goes unnoticed simply because no one
could bring it in front of the court and ask for justice, at the same time the PILs
being filed are becoming a mere vehicle in the hands of people who know how to
use it to further their private interests under the garb of seeking social justice. Time
and again the court has expressed its disapproval of this practice, and yet the
parasites in the legal system keep on attempting to exploit the new found freedom
which has been inadvertently granted to them by the courts due to the relaxing of
the standards of locus standi needed to bring a suit in the court. Numerous cases
are filed simply with the motive of harassing and creating bargaining situations, the
same being filed in order to gain private ends using the garb of public interest.[9]
The courts have expressed disapproval of this practice which is becoming rampant
in India by raising the issue of the wastage of the precious time of the court in
frivolous and false Public Interest Litigations file in the courts by such bogus
parties, this same time being denied to the genuine litigant. The flipside of this
whole scenario is that the courts now being reluctant to look into each and every
PIL filed with genuine interest and zeal due to the diminishing faith in this system,
might end up acquiring a hostile attitude towards Social action litigation as a
whole, and this would severely hamper the efficiency of social action litigation in
achieving social justice.
In order to substantiate this assertion, the researcher would like to discuss some
such cases, and analyze the Supreme Courts reaction. In Dev Sebastian v. P.R.
Kurup and Orissa[10], for example, a PIL was filed in the court asking it to look
into the credentials of a person who was being appointed to a public office, the
petitioner claiming that the person is a corrupt man and hence is totally unfit for
the post to which he is being appointed. However, these allegations were based
completely on newspaper reports, and the petitioner had made absolutely no effort
to ascertain the truth or to substantiate his claims. The court expressing its
disapproval dismissed the PIL, holding that such attempts to divert the time and
attention of the court from the thousands of cases that were pending in order to
look into such matters which are constituted of private motives hidden in the
mantel of public interest, should be discouraged at every level. Dilip
Karambelkar v. Rear Admiral Vishnu Bhagwat[11] is another such case. The
reputation of some of the candidates for the top post in the Indian navy was
challenged on grounds that these candidates were not qualified to do so. However
the petition itself was filed about 5 years after some vital facts had ceased to exist
and it was contended on the part of the respondents that this was merely an attempt
to delay the proceedings and tarnish the reputation of the said candidates. The
Supreme Court held:

“In the present case also we feel that the public interest litigation is misused by the
petitioner for some extraneous purpose. Unfortunately, these so-called public
interest petitions are fought with more vehemence than the litigations where some
personal stakes are involved; reason may be that petitioner has not to lose
anything in such petitions. It is forgotten that in a public interest litigation the
party has only to draw attention of the Court where some directions are required
to be issued for doing justice in accordance with law… Further, legal process
cannot be permitted to be misused for tarnishing someone’s reputation.”[12]

The first part of this extract clearly identifies the petition as an attempt by the
petitioner to achieve ulterior motives using public interest litigation as a mask for
his true intentions. The same is true for other cases where in the name of social
justice, individual seek to attain their private goals, minimizing the cost of
litigation and the time taken for deciding the court by filing frivolous public
interest litigations.

Attitude of Courts toward SAL

As shown in the last chapter, while the courts in India have taken a very strict
stance as far as such petitions which are filed as PILs with the fraudulent intention
of using this system of social action litigation to circumvent the cost and the time
factor of normal litigation, when the courts do deal extensively with PILs, they
have been exhibiting what may be called as double standards.
On the one hand are cases where the Supreme Court has refused to act on a PIL on
the ground that the PIL relates to matters which are related to policy formation, and
as such fall outside the ambit of the Supreme Court. This phenomenon can be seen
in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh[13], where
the court decided that it could not entertain the PIL filed by the petitioner
contesting the fast exploitation and depletion of natural resources by the
government, on the grounds that the using or not using of the resources which fall
in the territory of the concerned government, is an issue of policy, and so the
government can by itself decide where the correct balance between the
preservation of the environment and using of natural resources lies. Another
similar case which can be taken as an example of this attitude of the courts is
where a petition by an ex Director General of India, questioning the security to be
provided by the government to certain protected people was rejected as it was held
that this was a question to be deliberated over and decided by experts and did not
want a judicial determination, being a matter of policy to be determined by the
government.

On the other hand however, we have cases where the courts have not hesitated in
interfering to a very large extent in the so called policy matters. Where a PIL was
filed claiming negligence on the part of the government which was leading to a
large number of train accidents, the court laid down definite guidelines on which
the policy of the state should be based, announcing that the railways should be run
as an organization for public service and not merely as a profit gaining
venture.[14] Similarly, in a case where a PIL was filed questioning the standard of
patients in a government mental hospital, the court freely dictated in the realm of
administrative matters, making many provisions such as the providing of blankets
to all patients, increasing the daily food allowance etc., which on their face are
purely administrative in nature, mandatory and imposed the same on the
institution.[15] The court showed a similar enthusiasm in deciding on
administrative matters in a case where the bad conditions prevailing in a protective
home for girls being run by the Uttar Pradesh government.[16]

As is apparent from the two sets of decisions given by the Indian courts, there is in
fact a double standard where the treatment of PILs by the Indian courts is
concerned. While in some cases the courts have outright refused to intervene in the
matter claiming that it is a policy issue, and hence it would not be proper for the
court to interfere in the same, in some other cases the court has taken the
opportunity given to it and has tried to reform the existing administration and
policies for the better.

This has given rise to considerable concern as now the growing fear is that carried
by the momentum of the wave of social action litigation that the courts in India are
currently riding, the courts will overshoot the limit which has been draw for them,
and this will result in the enforcing of non enforceable rights, namely the directive
principles of state policy. In order to circumvent the obstacle of the non
enforceability of what might be called extended human rights, the courts have
drawn from their power to issue directives,[17] in some cases conveniently
ignoring that this power is also confined to the enforcing of fundamental rights
alone.[18]

Conclusion

In order to conclude this paper, one must analyze the concept of Social Action
Litigation once again, this time in light of the entire phenomena which are related
to it. Firstly, SAL is to be understood as the Indian counterpart of the PIL system
prevalent in countries like USA and other western nations. However, the two
although interchangeable in most circumstances are not always in the same
context. As explained earlier in the paper, the concept in India is limited to the
achieving of Social Justice for the poor, and such litigation which is prevalent in
western countries and falls under Public Interest Litigation as understood in those
countries, involving the interests of private organizations, is excluded in India.

In India the motive behind introducing PIL is simply to ensure that justice is done,
and the many underprivileged people of our country, who for any reason can not
get their fundamental rights enforced, are not deprived of the same. In as much as
this is the objective of such litigation in India, the name, Social Action Litigation,
given to it in specific context of India is very apt.

Secondly, while it was necessary for the courts to lower the standards of locus
standi prevailing in the courts before this concept was introduced in order to ensure
that this very same concept and its main aim and objective was not defeated at the
very outset due to the cases not coming to the notice of the courts at all due to the
inability of the directly affected to do so, this relaxation has led to the flooding of
the already burdened and lagging Indian judicial system with frivolous suits filed
with fraudulent intentions, creating an even greater burden on the Indian courts,
which are already bowed down by the weight of years of pending cases.

Thirdly, the courts seem to exhibit double standards as far as social action
litigation is concerned. Sometimes the courts refuse to decide in a case on grounds
that the issue involved is one of policy and so precludes the intervention of the
courts, while in other cases the courts seem to welcome the opportunity to
introduce reforms in the administrative system, making sure that the policy of the
government is on the right track. This has led to the claim that the Indian courts,
are heavily indulging in judicial activism, and are thereby circumventing the
provisions of the Constitution themselves, deciding on matters that they should not
interfere in , and trying to enforce directive principles of state policy, which should
not be enforceable by any courts. In the researchers opinion however, this claim
should not be the source of too much worry, due to the fact that as far as such
matters are concerned, the courts do seem to draw a firm line as to the extent to
which, if at all, they can interfere. This is apparent from such cases where the
Supreme Court of India has warned the high courts form indulging in extensive
judicial activism, and in their zeal forgetting their own limitations set by the
Constitution of India.[19]

Finally, returning to the vital point of the growing misuse of the system of social
action litigation in India in order to achieve private motives hidden in the mantel of
public interest, it is important to note that there should not be a situation where the
people and the courts alike loose faith in the whole concept of SAL, thereby
discarding this excellent measure which is granting relief to the many poor and
uneducated of our country, and is ensuring that their ignorance is not used to deny
them their fundamental rights.

On this note the researcher would like to end the paper with this quote by Dr.
Upendra Baxi: “The Supreme Court of India is at long last becoming, after thirty-
two years of the Republic, the Supreme Court for Indians. For too long, the apex
constitutional court had become ‘an arena of legal quibbling for men with long
purses’. Now increasingly, the court is being identified by Justices as well as
people as the ‘last resort for the oppressed and the bewildered’. The transition fro
a traditional captive agency with a low social visibility into a liberated agency
with a high socio-political visibility is a remarkable development in the career of
the Indian appellate judiciary.”[20]
Bibliography

Books:

 D.D. Basu, Human Rights in Constitutional Law (Second Edition (First

Reprint), Justice B.P. Bannerjee and Dr. A.K. Massey, eds., New Delhi:
Wadhwa, 2005) (1994).
 H.M. Seervai, Constitutional Law of India Volume 1 (Fourth Edition (Fifth
Reprint), Delhi: Universal, 2005) (1967).
 Justice R.C. Lahoti, Preamble: The Spirit and Backbone of the Constitution
of India (First Edition, Lucknow: Eastern Book Company, 2004).
 M.P. Jain, Indian Constitutional Law (Fifth Edition (Second Reprint), New
Delhi: Wadhwa, 2005) (2003).
 V.N. Shukla, Constitution of India (Tenth Edition (Second Reprint), M.P.
Singh, ed., Lucknow: Eastern Book Company, 2004) (1950).

Articles

 G. L. Peiris, Public Interest Litigation in the Indian Subcontinent: Current

Dimension, The International and Comparative Law Quarterly 40(1),
(1991).
  S. S. Deshpande, Rights, Autonomy and Process: Public Interest Litigation
in India, Oxford Journal of Legal Studies 9(3), 1989.
 Jamie Cassels, Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?, The American Journal of Comparative Law
37(3), 1989.
 Mrs. K. Uma Devi, Social Justice to Women through Public Interest
Litigation, Indian Bar Review 19(4), (1992).
 R.K. Mahajan, Public Interest Litigation: Courts Role as Administrator and
Social Dimensions, Indian Bar Review 23(1), (1996).

Websites

 www.jstor.org

[1] Bihar Legal Support Society v. Chief Justice of India ,(1986) 4 SCC 767.

[2] Charanjit Lal v. Union of India, AIR 1951 SC 41.

[3] www.helplinelaw.com/docs/pub-i-litigation/index.php visited at 2 August

2006.

[4] Mrs. K. Uma Devi, “Social Justice to Women through Public Interest
Litigation”, 19(4) Indian Bar Review at 3 (1992).

[5] R.K. Mahajan, “Public Interest Litigation: Courts Role as Administrator and
Social Dimensions”, 23(1) Indian Bar Review at 53 (1996).

[6] S.P. Gupta v. Union of India, (1982) 2 S.C.R 365, at 520.

[7] Maharaj Singh v. Uttar Pradesh, A.I.R. 1976 Supreme Court 2602, at 2609.

[8] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, at 236.

[9] See G.L. Peiris, “Public Interest Litigation in the Indian Subcontinent: Current
Dimension”, The International and Comparative Law Quarterly, 40(1), (1991).

[10] Dev Sebastian v. PR Kurup, A.I.R. 1997 Kerela 214.

[11] Dilip Karambelkar v. Rear Admiral Vishnu Bhagwat, A.I.R. 1997 Bombay
131.

[12] Id.

[13] Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, (1986)
Supp. SCC 517.
[14] Id.

[15] Rakesh Chand Narain v. State of Bihar, (1986) Supp. SCC 576.

[16] Dr. Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106.

[17] Centre for Legal Research v. State of Kerela, A 1986 SC 2195.

[18] D.D. Basu, Human Rights in Constitutional Law (Second Edition (First
Reprint), Justice B.P. Bannerjee and Dr. A.K. Massey, eds., New Delhi: Wadhwa,
2005) (1994) at 35.

[19] State of Himachal Pradesh v. A parent of A Student of Medical College,

Simla, (1985) 3 SCC 169.

[20] Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the
Indian Supreme Court of India, Judges and Judicial Power, 1985.

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Judicial Activism a Problem? Why?

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Introduction – The Role of the Judiciary

The concept of Judicial Activism has long been the centre of a raging debate. The
debate has revolved around the actual nature of judiciary, and what role it must
play in bringing about social change.[1] For it has been noted that no matter how
much the Judiciary may try to distance itself, it inevitably has to take stands which
are political in nature, or has to make decisions that affect matters of policy
directly.

The first question which must be answered is what the role of the judiciary is. An
answer to this question may be found in the case Indira Gandhi v. Raj
Narain[2] where the judges discussed in detail what the nature of judicial power is
and what role the judiciary must play in a democracy. The overall opinion of the 5
judge bench in the abovementioned case was that the main role of the judiciary is
to: make sure that the legislature and the executive stay within the limits prescribed
by the Constitution, interpret the Constitution, and apply the law as interpreted to
fact situations which might arise. It was repeatedly pointed out that as far as the
judiciary is concerned, their involvement must rightly end with deciding whether
the legislature has acted within its constitutional authority or not, and that
questions of policy, its merits and demerits, should never be gone into. Hence, the
role of the judiciary in India going by this decision is to interpret the Constitution
and to apply the interpretations to the fact situations and nothing more.

This brings us to judicial activism itself. This is so because the role of the judiciary
as given in the above case can not be reconciled with the decisions of the Supreme
Court in several cases where the judiciary has very clearly done more than what is
opined as its role in the Indira Gandhi case.[3] In a broad sense, judicial activism
can be defined as the courts acting outside the limitations placed on their
involvement and adjudicating on matters that are not strictly within their
jurisdiction and in ways that are considered unconventional.

Some examples based on decisions of the Supreme Court may clarify this further.
In the Bandhua Mukti Morcha[4] case, the court discussed in detail Article 32, and
what the word ‘appropriate’ in it meant. While doing so the court made it clear that
what mattered was the spirit of the text and not just the literal interpretation of the
text. A similar trend can be seen in another case[5] where the Supreme Court
imposed a fine on a motel for polluting a river basin and justified the imposition of
the fine by stating that it was within the power of the Supreme Court under Article
32 to do the same as pollution of any element such as water which constituted ‘life’
violated the fundamental right under Article 21. In another case,[6] while holding
the state responsible for acts done by police officers outside the scope of their duty
the Supreme Court once again gave a very liberal interpretation to the powers of
the Court under Article 32. It is interesting to note however, that although in these
case the judiciary was not acting strictly within the limits placed in earlier cases,
they took care to make it clear that they were merely pursuing the ‘realization of
the constitutional objectives’[7], which in my opinion clearly shows that to this day
the courts are only too keen to uphold the myth of their non interference in matters
political.

In light of the above cases defining the role of the judiciary becomes slightly more
problematic. As a normal trend, all the cases concur, or at least try to, with the role
of the judiciary as opined by the judges in the Indira Gandhi case.[8] However,
even if one may reconcile the judgments in the abovementioned cases with the
‘role of the judiciary’, one can simply not reconcile the decisions of the Supreme
Court in cases such as the Lakshmi Kant Pandey[9] case where the court virtually
legislates upon matters and lays down detailed guidelines to be followed, a job
which according to the opinion in the Indira Gandhi case[10], as well as the
doctrine of separation of powers, should be left to the legislature. It is decisions
such as these which are termed as judicial activism – activism indulged by the
judges in order to bring about social change.

Arguments against Judicial Activism

As explained earlier, judicial activism is the deviation of the courts and the judges
from their supposed role, which considers of interpreting the Constitution
impartially and without any bias affecting their interpretation and its application to
facts. The range of judicial activism may extend from placing a wide interpretation
on a certain article on the one end,[11] to virtually legislating on matters which
should, according to the doctrine of separation of powers, be left to the legislature
on the other.[12]

After analyzing the role of the judiciary in India as it is believed to be, and having
evolved a working understanding of what one may define as judicial activism, we
can now move on to analyzing why judicial activism is considered a problem. For
sake of clarity the researcher has given counters to the arguments here itself rather
than in a later part of the paper.

The chief argument against judicial activism is that the legislation signifies the will
of the majority, and any interference in the working of the legislature amounts to
thwarting the will of the majority, which is the cornerstone of a democracy and the
legitimacy of which is above the scope of judicial action.[13] In answer to this
argument, one may point out that the tacit consent of the minorities must not be
used to deprive them of the kind of welfare society that was envisioned by our
forefathers. The judges conceded this much even in the Indira Gandhi case[14] in
spite of overall attitude adopted being one of judicial restraint. Further, if we agree
that the purpose of the doctrine of separation of powers is to strengthen freedom
and prevent concentration of power in the hands of one governmental actor in a
manner likely to harm the freedom of the individual[15], even then in order to
argue that by these standards judicial activism is problematic, one has to take
recourse to the extreme case of the judiciary assuming all power, and that judicial
activism leads to compromising the freedom of the individual, which it is
submitted is not very probable.

The root of all arguments against judicial activism lies in the doctrine of separation
of powers. Another argument raises the fear that since there is legislation on most
matters in any country, if the court decides to start adjudicating on matters of
policy and starts directing the administration to take certain specific actions, then
this will eventually lead to the judiciary completely usurping the roles of the
legislation and the executive.[16] In my opinion this argument is also based on
envisaging a situation which might at best be called far fetched and extreme. This
is so because the court has in many cases also shown restraint where it is directly
infringing in the field of another branch of government.[17] As long as the
judiciary practices such restraint, the state of affairs envisioned in this argument
will never be reached. Further, the doctrine of separation of powers seems in this
case to take away the power to bring about social change from the judiciary, but at
the same time does not transfer the responsibility to do so to another branch of the
government.[18] Also, it can be argued that the very fact that the judiciary is faced
with the task of trying to protect the rights of certain groups by deciding on matters
which should ideally be the concern of the administration implies that somewhere
the administration has failed in granting to the citizens a welfare state, and this
justifies the judges to indulge in judicial activism to make sure that the failure on
the part of the administration does not lead to permanently depriving the citizens of
their rights.

One other point must be discussed in order to complete the analysis of why judicial
activism is seen as undesirable. And this argument stems from the role of the
judiciary as it is conventionally understood. The researcher has already discussed
the Indira Gandhi case[19]. It is true that one can not reconcile the decisions of the
court in matters of judicial activism with the role of the judiciary as given in the
case. The problem is exemplified because of the fact that there are no statutes
which lay down very clearly what the role of the judiciary is. This means that the
role of the judiciary is itself based on interpretation of the Constitution and the
conventions prevailing in the legal systems of the world. In order to deal with this
hurdle, one may refer to the decision of the court in the Vishaka case,[20] where
the court while discussing the function of the judiciary opines that on of them is,
“to promote, within the proper limits of the judicial function, the observance and
the attainment of human rights.”[21] The question now becomes who decides these
limits. And how is one interpretation of what these limits are to be judged against
another? For as we know there is no one true interpretation[22] and both of them
may be right in their own context.

Conclusion

The paper has been structured to answer three questions. What is the role of the
judiciary? What then is judicial activism? Why is judicial activism considered
undesirable and as something to be avoided? Having answered these three
question, we may now try and arrive at a conclusion as to whether judicial activism
really is something avoidable, and why or why not.

The researcher has already attempted to present counters to the arguments which
are made against judicial activism. As a final conclusion, I believe that in a
democracy, judicial activism is not just desirable, but also unavoidable. It is known
that democracies carry with them the risk of the imposition of the general will of
the majority on those who are in minority. This situation has the potential of
developing into a state of affairs where the minorities find themselves permanently
deprived of their rights. If we were to accept the arguments against judicial
activism then we would have to concede that the courts should merely look away
even in cases of gross injustice as long as the same is being done in pursuance of
the will of the majority. Needless to say this idea is not acceptable in a welfare
state.[23]

As a further argument in favor of judicial activism, one may ask why is it that
while the impartiality, integrity and wisdom of the judges are trusted to formulate
common law, when it comes to civil law, we lose faith in the judiciary and start
claiming that the court is indulging in undesirable judicial activism as soon as it
takes some initiative on its own?[24]

As far as the unavoidability of judicial activism is concerned, one must realize that
it is impossible to draft a Constitution that takes care of each and every future
possibility thereby negating the need to interpret the Constitution. This is where
the interpretation of the Constitution by the judges and the different ways in which
this might be done assumes significance. The question of interpretation of the
Constitution inevitably arises in a democracy. When it does, the judges are faced
with a choice. Either they can interpret the statute based solely on the literal
meaning of the words, or they can try and identify what the intent of the framers
was and then attempt to further the goal that they wanted to achieve. All
interpretive systems must resolve the relationship between text and context;
between the “word” (verba) of the text and its “spirit” (voluntas).[25] The
interpretation of the Constitution based on its spirittaking into account the
changing circumstances is termed as creative interpretation of the
Constitution.[26]

In my opinion the creative interpretation of the Constitution from time to time is

necessary in a democracy. It is often this creative interpretation of the text by the
judges which comes under criticism by those who advocate judicial restraint.
Surely it is not reasonable to expect the judiciary to act as soulless machines
without a mind of their own and to merely follow instructions to place a literal
interpretation on statutes and the Constitution and to ignore all other matters.[27]
And so, when they see an obvious injustice taking place, issues as to the
interference of the judiciary in matters of policy must become irrelevant, and
secondary to ensuring that justice is done.

However, it must be noted that, “judicial activism can not be a substitute for the
executive’s efficiency”.[28] And hence, ultimately there is only so much that the
judiciary can achieve in the nature of social change. The burden to bring about the
welfare state that was imagined by our forefathers rests squarely on the shoulders
of those who were supposed to do so, and the judiciary must at best be merely
facilitators, interfering only where the powers that be have failed to deliver, lest
the fear that the extreme stage of judicial activism will be reached with the
judiciary usurping all the powers of the legislature and the executive comes true.

Bibliography

Books:

1. M. P. Jain, Indian Constitutional Law (Fifth Edition (Second Reprint),

Nagpur: Wadhwa and Company, 2005) (1962).
Articles:

1. Alpheus Mason, “Judicial Activism: Old and New” 55(3) Virginia Law
Review 385 (1969).
2. Jamie Cassels, “Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?” 37 (3) American Journal of Comparative
Law 495 (1989).
3. Robert M Cover, “The Origins of Judicial Activism in the Protection of
Minorities” 91 (7) The Yale Law Journal 1287 (1982).
4. Gregory Caldeira, “Dynamics of Public Confidence in the Supreme Court”
80(4) The American Political Science Review 1209 (1986).
5. Aharon Barak, “The Role of a Supreme Court in a Democracy”
116 Harvard Law Review 16 (2002).

Websites:

1. www.jstor.org
2. www.repositories.cdlib.org
3. www.westlaw.international.org

[1] Alpheus Mason, “Judicial Activism: Old and New” 55(3) Virginia Law
Review 385 (1969).

[2] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[3] Id.

[4] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

[5] M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213.

[6] Khatri v. State of Bihar, (1981) 2 SCC 493.

[7] Id.

[8] Supra note 2.

[9] L.K. Pandey v. Union of India, (1984) 2 SCC 244.

[10] Supra note 2.

[11] Supra note 4.

[12] Dr. Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106.
[13] Robert M Cover, “The Origins of Judicial Activism in the Protection of
Minorities” 91 (7) The Yale Law Journal 1287 (1982).

[14] Supra note 2.

[15] Aharon Barak, “The Role of a Supreme Court in a Democracy” 116 Harvard
Law Review 16 (2002).

[16] Jamie Cassels, “Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?” 37 (3) American Journal of Comparative Law495
(1989).

[17] State of Himachal Pradesh v. A parent of A Student of Medical College,

Simla, (1985) 3 SCC 169.

[18] Supra note 1.

[19] Supra note 2.

[20] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[21] Id.

[22] Supra note 15.

[23] Supra note 2.

[24] Supra note 15.

[25] Id.

[26] Walter Murphy, “Creative Interpretation of the Constitution” sourced from

<http://repositories.cdlib.org/csd/00-05 > (accessed on 11th November, 2006).

[27] Supra note 2.

[28] Supra note 16.

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