Title: Role of judges And Judicial

Activism in India

Name: Rishabh Iyer

Course: B.B.A., LL.B (HONS)

Roll no. A033

Academic Year: 2014-15

Faculty: Mrs Nanda pardhey,

Mrs Nadisha Vazirani,

Faculty for jurisprudence,

Nmims school of Law.

Date & time of submission: 11/08/2014

 Table of Contents

1) Research Methodology
2) Introduction: Jurisprudence and its various
theories
3) Opinion of various jurists & their viewpoints.
4) The Judiciary of India: Its powers and its
duties
5) Judicial Activism: A tool to get the better of
the democracy
6) Over Activism of the Indian Judiciary
7) Conclusion & Recommendations.
8) Bibliography
 Table of cases
1. Divisional Manager, Aravalli Golf Course v. Chander Haas

case

2. Golakh Nath v. State of Punjab, AIR 1967 SC 1643

3. Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461

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

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

6. Francis Coralie vs. Union Territory of Delhi AIR 1978 SC

597

7. R. Rajagopal vs. State of Tamil Nadu. (1994) 6 SCC 632

8. Oliga Tellis Vs. Bombay Municipal Corporation; AIR 1986

SC 180

9. Kapila Hingorani Vs. Union of India (2003) 6 SCC

10. Unni Krishnan Vs. State of A. P (1993) 1 SCC 645

11. M.C. Mehta vs. Union of India 1988 1 SCC 471

12. Vishakha Vs. State of Rajasthan AIR1997SC3011

13. Aruna Ramchandra Shanbaug vs. Union of India JT 2011

(3) SC 300

14. Lata Singh vs. State of U.P. 2006 (5) SCC 475

15. Bhagwan Dass Vs. State (NCT) of Delhi, 2011(5) Scale 498
16. S.P Gupta vs. Union of India AIR 1982 SC 149

17. Supreme Court Advocates on Record Vs. Union of India

(1993) 4 SCC 441

18. Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219,

(Paragraph 2)

19. Supreme Court Bar Association vs. Union of India, AIR 1998

S.C. 1895

20. M.C. Mehta vs. Union of India (1997) 8 S.C.C. 770


 Research Methodology
Whenever one faces a problematic situation when one is left
with no choice but to take the help of law, it is the judiciary of the country that would
decide as to what should be done with it. Whether the person will be awarded
compensation or whether he would instead be convicted. The rights that we have
surrendered with the state is upheld by the judiciary by its decisions. Therefore, i t is
certainly of utmost importance to not only know our judiciary, but also the role of
judges, the law and the limitations/ scope of the powers of the judiciary.

This project would aim at analysing the following:

 The Evolution of importance of Judiciary as a major force

 The American School of Legal Realism
 The Indian Judicial System
 The way the Judiciary/ judges have played a vital role in the making and shaping
of the law.
 The revolution in the ideology of judiciary and the results of it
 Whether the Judiciary has crossed the “Lakshman Rekha” drawn for it by the
constitution
 If so what is the solution for it?

In course of this project, one could come across the answer

to the following questions:
 Why did there arise such a drastic or rather revolutionary change in the ideology
of the judiciary?
 What are the powers that the judiciary exercises?
 Are the actions of the judiciary justified?
 If they are, then can the mentioned solutions resolve it?
 Introduction: Jurisprudence and its
Theories

A wall cannot be built by simply keeping bricks on top of another

brick. What gives the wall, its true strength and durability, is the cement that is
applied between those bricks. Similarly, various statutes, if simply enacted, would not
necessarily make any sense. They need something to bind them together. Something
that would connect them and would give them a meaning. This is the pivotal role
played by Jurisprudence. Various statues form the skeletal structure of rules and
regulations in a country. Jurisprudence is what will bind it with muscles.

Basically, the study of Jurisprudence helps us make sense of law. It

helps the law function and govern the society. It gives law the quality of evolution.
With a change in morals, ethics, statutes or society, law must change. Jurisprudence
acts as a catalyst for this change. Thus, we can sum up that jurisprudence is the factor
that helps us understand the anatomy of law. It helps us answer the fundamental
question that comes to the mind of any law student when he first enters the law
school: “WHAT IS LAW?” It is generally the philosophy of law. Since it consists of
several theories, it would not be inappropriate to call it as an investigation of theory of
law. We study the various theories/ schools/ ideologies of eminent jurists,
philosophers and thinkers regarding law.

There are various theories which form an inextricable part of the

subject matter of jurisprudence. They are:

a) Natural Law Theory: It claims that law is of divine origin. It emphasises on the fact
that since even the legislators are humans, laws of nature apply to them as well. They
base this theory on the premises of ‘ethics’ and ‘moral values’. The Ancient Hindu
Jurisprudence was based on this theory and gave the concepts of ‘dharma’ and ‘Rajya
dharma’
b) Positivism/ Analytical School: The supporters of this school draw a clear line
between law and morality. They believe law and morality to be separate and not
 overlapping. They consider the legislative as the supreme body, even above law.
Also, they emphasis on interpreting the law ‘as it is’ and not how is ‘ought to be’.
c) Pure Law Theory: It envisages law as in a hierarchical pattern. According to
supporters of this school, which was propounded by Hens Kelsen, law starts from the
basic norm/ ‘grundnorm’ and then proceeds down through delegation.
d) Sociological school: Instead of questioning the source of law, the sociological school
studies the repercussions of a law on the society. Whenever a law is made, it has
certain psychological effects. The supporters of sociological school, therefore, stress
not on the source of law but on the effects of law.

But is simply making laws enough? No it isn’t. Law have to be

interpreted for the purpose of delivering justice to those who have conflicting
interests. In the late 19th century, this what was happened in America. During that
time, it was the positive law which was at its peak. The judges found themselves
bound to deliver justice as it is. This was when the concept of legal realism came into
picture. It took into account certain concepts of Positivism, Natural law and
Sociological school. According to the School of Legal realism, since it is the judges
who are familiar with the facts and circumstances, they are in the best position to
interpret law for the benefit of the society. They emphasised that since the laws made
by the sovereign cannot possibly encompass all the possible problems that would
arise, it is best that the judges, who serve as a direct link between the society and law,
are in the best position to deliver judgements that are fit for that particular case.

That brings us to the question, what is law? Is law that what is

right? Or is law the will of the justice? This is the controversy that has been in
question for the past several years. The answer to this will help us find as to what part
the judges play in the delivery of justice and the interpretation of law. As far as the
current scenario is concerned, all one can infer is that what judges do is fill up the gap
in the existing laws. For an instance when there arises an issue for which, no law
existed, then the judge would consider the ethical perspective and deliver a set of
guidelines to fill up the non-existence of that law unless the legislature come up with
one. Here, the judges display the characteristics of Natural Law Theory. However, in
a situation where there already exists a law, the judge would simply interpret the law
and deliver the essential judgement. This judgement would be hereinafter referred as a
precedent. This precedent would be referred in similar situations until a legislation
regarding the same comes into picture. Thus, when we say that judges make law, we
are essentially referring to the fact that they fill up the loops in the law whenever they
come across one.

However, in the modern times, the judiciary has not remained

tranquil and simply wait for the loop hole to be presented to them. It has not restricted
itself to the fact that anything and everything done by the legislature or any argument
put forth by the advocates will be accepted. It has stopped accepting the means of the
advocates to constantly seek adjournments to extend the cases. No it no longer plans
to remain a spectator. It has recognized itself as one of the most important pillars of
democracy. It has woken up and become an active participant in the democratic
process. This active involvement of judiciary is what is termed as judicial activism.
 Opinion of Various Jurists and their
Viewpoints

Judicial activism, as mentioned before, has been derived from the

theory of Legal Realism. This concept first came into being in a period when
positivism was at its peak. The very fact that one of the founding fathers of the
Realism movement was one of the distinguished proponents of the positivist theory
makes it evident that the Analytical ideology of law was the prevailing during that era.

a) John Chipman Gray: Those were the days of formalism. However, since legal
formalism restricted the role of judiciary in a democracy, John Chipman Gray and
Justice Oliver Holmes came up with Legal realism. The former, despite being a
supporter of positivism, in his various essays, comments and definitions emphasised
on the ill-logical factors involved in the manner of delivery of justice. He also was
very sceptical about the fact whether formalism was the appropriate approach law and
justice must adopt towards the society.

b) Oliver Wendell Holmes: On the premises laid down by Gray, Justice Holmes
expanded the theory of legal realism. In an essay published by him, he was quoted
defining law as,” One does not care two straws about the logic or deduction but as to
what the court is likely to do. The prophecies of what the courts will do in fact and
nothing more pretentious1 are what I mean by law2.” According to Justice Holmes, it
is not the law written in the statutes which matters for the society but the decision of
the court that matters. By stating this, he is referring to the fact that since it is not the
legislators but the judges who are the most appropriately stationed to examine the
need to mend the law the way in which it was necessary. In a way, Holmes can be
said to be the main preacher of this theory. His objective and evolutionary view
towards law became the literal gospel for the supporters of this school

1
G. W. Paton, A Textbook of Jurisprudence, p.87
2
http://www.gutenberg.org/files/2373/2373-h/2373-h.htm
The Path of Law – Justice Oliver Holmes, 1897.
c) Jerome Frank: After Holmes, the next big impact was made by Justice Jerome Frank.
Justice Jerome Frank not only succeeded Holmes, but also went on to further develop
the American Legal realism. The fundamentals of Jerome frank’s ideology is that he
considers legal certainty a sin of modern Jurisprudence. He calls it the “basic legal
myth of rule certainty3” Jerome’s famous quote that, “The life of law has never been
logic. It has been experience” had a massive effect on the philosophy of American
Jurisprudence.

It was these three major jurists who were the most prominent among
the perpetrators of the American Realism.

The American
Legal Realism

John Chipman Justice Oliver

Jerome Frank
Gray Wendell Holmes

The powers of making laws have been endowed on the

legislature. And needless to say, it has dominated the aspect as far as law “making” is
concerned. However, the fact cannot be looked over that the judiciary has played its
part by shaping and remodelling the law. Similarly, in India, the Judiciary has used

3
http://heinonline.org/HOL/LandingPage?handle=hein.journals/vanlr11&div=47&id=&page=
Jerome Frank’s contributions to the philosophy of American Legal Realism – Julius Paul
 the vast powers, which the constitution has bestowed upon it, to protect and interpret
the values of the constitution. In the forthcoming chapters, we would study the
manner in which it has performed its duty.

The Judiciary of India: Its powers and

Duties

The Judiciary is that section of the democracy which is primarily

tasked with upholding the law. It works in tandem with the legislative and the
executive to run the affairs of the country in a proper manner. To deliver justice to the
conflicting interests of the different parties. For this purpose, the judiciary
decentralised into the subordinate courts, high courts and at their apex, the Supreme
Court of India. The Supreme Court of India is the highest judicial body and the apex
appellate court of India. It is the highest constitutional Court of the country and also
acts as a guardian of the constitution of India. It is the head of the judicial
establishment of the country and together with the Legislative and the Executive,
makes up one of the three pillars of democracy. The idea of a separate judiciary was
first proposed by Montesquieu in his ‘Theory of Separation of Powers’. That feature
was imbibed in the democratic set up, that the then leaders of the constituent
assembly, envisioned India to become. Initially, the judiciary was tasked with only the
interpretation of law. However, our Courts have been empowered by the constitution
to be something more than that.

The Supreme Court has been given certain powers so as to make it

independent of the legislative and the executive. The Supreme Court and the high
court have been vested with some constitutional powers so that they can not just
deliver justice, but also have an equal say in the development of law and the
progressive functioning of a democratic society. This would be further taken up in the
latter part of the project. This chapter basically deals with the a) powers and b)
functions/ duties of the Supreme Court and the High Court

Powers of the Supreme Court:

 Sir Alladi Krishna Swami Ayyar thinks that,
“The Supreme Court of India is more powerful than any Supreme Court in any
part of the world4.” He also states the reason of our Supreme Court being regarded
so powerful. He believes that our Supreme Court is very powerful because besides its
role as a guardian of the Constitution Of India, the Supreme Court is also has
appellate and original Jurisdiction apart from having advisory powers as well.

These powers/ jurisdiction of the Supreme Court are categorised into three sections:

a) Original Jurisdiction
b)Appellate Jurisdiction
c) Writ Jurisdiction, and
d) Advisory Jurisdiction.

The Supreme Court is the Guardian of the Constitution. It thus has the
exclusive power to intervene in cases where: 1) Union vs. one or more states 2) Union and
one or more states vs. one or more states 3) One or more states vs. one or more states. This
exclusive power is what is referred to as the Original Jurisdiction of the Supreme Court.

The Supreme Court, being the apex court of the country, has a wide
appellate jurisdiction. From the National Commission for consumer dispute redressal to the
National Green tribunal or a High Court, any and every case, if deemed eligible by a High
Court, can appeal to the Supreme Court. This is what forms the appellate jurisdiction of the
Supreme Court

Since the Judiciary and the Supreme Court specifically, is regarded as

the guardian of the Constitution, it entertains writ petitions. By the medium of writ petitions,
any person, who believes his fundamental right has been violated, can file a writ petition
under Article 32. Of the Constitution of India, with the Supreme Court. The same can be filed
under a high court under Article 226. Of the Constitution of India. Thus, through the writ
petition, the Supreme Court and the High Court can check the violation of the fundamental
rights.

Besides these, the Supreme Court can also advise on various matters
of importance, to the president and to the Government of India. This is known as the

4
http://www.importantindia.com/2143/jurisdiction-and-powers-of-supreme-court-of-india/
By Vijay Jaiswal 29th August 2013
Advisory Jurisdiction of the Supreme Court. This is the work, power and duty of the
Judiciary.

Judicial Activism: A tool to get the

better of the democracy

When the facts are examined closely, it can be inferred that the
judiciary has been doing something more than its job profile. It has continued to
deliver justice and do its primary functions but it has become rather participative/
Active with respect to shaping the democracy. According to Lord Bryce, the
efficiency of the judiciary is the best available test of a government5. The judiciary not
only sees to it that it resolves the conflicts of the citizens, but also checks whether the
elected members are acting in the limits prescribes by the constitution of India. Thus,
for the purpose of regulating these processes, the constitution has given the power of
scrutinising the constitutional validity of any law that the legislative passes. Also, the
judiciary has also been burdened, by the founding fathers of our constitution, with the
responsibility of upholding the “Basic Structure6” of the constitution.

These powers help the judiciary keep a tab on the efficient

working of the other organs of the democracy. The main power among these is the
power of Judicial Review7. Under Judicial/ Constitutional review, the judiciary not
only checks the constitutionalism of the passed law but also interprets those rights and
constitutional provisions with respect to the changing ideology/ theory of the society.
The very nature of judiciary was considered such that it would enclose its functions to
only the interpretation of the statute for the purpose of justice and simply scrutinising
whether or not the statute passed by the legislative is violative of any provision laid
down in the Constitution of India.

5
Paraphrased from Judicial Activism: The Indian Version of American Realism.
Dr. Pankaj Kakde
Assistant Professor
S. P. College of Law, Chandrapur
A Paper Published in S. P. Law Review ISSN (P) 2278-7811 P.N. 58
6
This Doctrine of Basic Structure of the constitution was given by the Supreme Court Judgement on the
kesavananda bharti case.
7
 But when one looks at India in a realistic manner, it looks an
impossible task to deliver justice to 2 billion people in the country. But in a country
like India, this is just the beginning. What complicates the delivery of justice further is
the varied language, environment, culture and religions. It is similar to walking on a
rope. A wrong step will bring the country down to shambles. The study of the
ambit of the words “formulation” and “interpretation” might baffle even
the best in the business. Many are of the thought that the judiciary, in the name
of interpreting the law, goes a step beyond, and gives the country new binding law
which is mostly dissimilar to the existing one. This can be termed as judicial activism.

  The Fundamental Rights, Independent Judiciary, DPSP, Parliamentary

democracy etc. were modern principles and institutions were borrowed from the West
and then transplanted from above on a relatively backward, feudal society, the
intention of putting India in the modern age. The Indian judiciary, being an organ of
the State, has been more active than its U.S. counterpart to transform Indian society,
by enforcement of the modern principles and ideas imbibed in the Constitution
through verdicts of the courts.

In 1967 the Supreme Court in “Golakh Nath Case”8  held that the
fundamental rights given in Part III of the Constitution of India cannot be amended,
despite the fact that Article 368 imposed no such restriction, which only required a
resolution of two third majorities in both Houses of Parliament. Subsequently,
in “Keshavanand Bharti case”9 the Supreme Court had overruled the Golakh
Nath judgement but held that an amendment to the ‘basic structure/ the fundamental
principles’ of the Constitution is not permissible.  However, there is not clear cut
definition of the concept/ principle/ doctrine of ‘basic structure’, though from the
judgements based on this doctrine, an effort to draw an outline has been made. The
main point here, however, is that Article 368 nowhere mentions that the basic
structure could not be amended10. Thus the decision can be said to have amended
Article 368. Similarly, in many of its decisions, the Supreme Court has played an
activist role in the democracy.

8
Golakh Nath v. State of Punjab, AIR 1967 SC 1643
9
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461
10
http://justicekatju.blogspot.in/2013/10/separation-of-powers-judicial-review.html
Separation of Powers, Judicial Review and Judicial Activism - by Justice Markandey Katju: 24/10/2013
 Article 21 states: “No person shall be deprived of his life or personal
liberty except according to procedure established by law.” 11 After advice from Justice
Frankfurter of America, the word “due” was not included in Article 21. Thus, in
accordance to this, the Supreme Court in the “A.K. Gopalan case”12 declared that the
process of depriving a person of his right to live and liberty must only be fair, just and
reasonable. Anything more would be like adding “due process” to the Article. This
was overruled in the “Maneka Gandhi case”13 where the court, through judicial
activism, introduced the clause of “due process” in its interpretation.

Another area where the Supreme Court practised judicial activism is

during the “Francis Coralie case”14 in Article 21 where it held that:

“… the right to life includes the right to live with human dignity and all that goes along
with it, namely, the bare necessaries of life such as adequate nutrition, clothing and
shelter and facilities for reading, writing and expressing one-self in diverse forms,
freely moving about and mixing and comingling with fellow human beings.”

The ‘right to privacy’ which is a new way in which Article 21 was

interpreted. In the “R. Rajagopal case”,15  the Court held that a citizen has a right to
safeguard his privacy and that of his family, procreation, marriage, education, child
bearing and procreation, among other matters. The Supreme Court has also interpreted
that the right to life i.e. Article 21 as inclusive of the right to livelihood too “Oliga
tellis case”16. The right to food as a part of right to life was also recognised in “Kapila
Hingorani case”17 whereby it was clearly stated that it is the duty of the State to
provide adequate means of livelihood in the situations where people are unable to
afford food.
From handcuffing in Sunil batra case to legal aid in the sheela barsee
case, Article 21 has been interpreted in a myriad of ways by the judges through
judicial activism.

11
http://indiankanoon.org/doc/237570/ The Indian Constitution.
12
A.K. Gopalan v. State of Madras, AIR 1950 SC  27
13
Maneka Gandhi v. Union of India, AIR 1978 SC 597
14
Francis Coralie vs. Union Territory of Delhi AIR 1978 SC 597
15
R. Rajagopal vs. State of  Tamil Nadu. (1994) 6 SCC 632
16
Oliga Tellis Vs. Bombay Municipal Corporation; AIR 1986 SC 180
17
Kapila Hingorani Vs. Union of India (2003) 6 SCC 1
 But Judicial Activism was not restricted to Article 21 alone. The
Supreme Court also held that the DPSP, which are unenforceable socio-economic
rights, were supposed to be interpreted with respect to the Fundamental rights. This
was held in the “Unni Krishnan vs. State of A. P” 18. In this case, Right to life was
included i.e. it directly flows from the right to life thus making it a fundamental right.
However, providing education is a DPSP under Article 41 of part 4 of the Constitution
of India. In the same way, in M.C Mehta case of 198819, the SC directed the
Municipality to check the pollution of Ganga River in the Kanpur area.

When we take a closer look, it would be evident that the court not only
expands the ambit of the statutes, whilst interpreting the said statute in light of the
constitution, but also lays down guidelines and fills up the lacunae in law, whenever it
comes across one. This can be substantiated from “Vishaka case”20 where the court
gave guidelines for sexual harassment at workplace for which no law was present.
Similarly, guidelines for passive euthanasia were laid down in the “Aruna Shanbaug
case”21 since there were no legislation regarding euthanasia passed.

It can be clearly inferred that whenever the legislative is unable to

appropriate justice to the people, the judiciary comes to their rescue. Another one of such an
example is the “Lata singh vs. state of U.P.”22 Where the Supreme Court upheld the fact that
there can be no restrictions to marriage on the basis of the caste system. In the “Bhagwan
dass vs. State of Delhi”23 the court criticised the executive for not appropriately implementing
Article 29 of the Indian Contract Act, 1872, Articles 14, 15 (1) & (3), 17, 18, 19 and 21 of the
Constitution of India and Article 301 of the Indian Penal Code.

The concept of judicial activism was derived originally from the concept
of American School of Legal Realism since it the law was clearly, when interpreted ‘as it is,’
did not do the justice that it should have done. Lately, judiciary has actively been interpreting
the law to suit the changes in the society and in the same process has observed that the
society has changes faster than the law changes. Thus, the judiciary has been trying to keep
pace with it. But then a question arises that has the judiciary crossed the line?

18
Unni Krishnan Vs. State of A. P (1993) 1 SCC 645
19
M.C. Mehta vs. Union of India 1988 1 SCC 471
20
Vishakha Vs. State of Rajasthan AIR1997SC3011
21
Aruna Ramchandra Shanbaug vs. Union of India JT 2011 (3) SC 300
22
Lata Singh vs. State of U.P. 2006 (5) SCC 475
23
Bhagwan Dass Vs. State (NCT) of Delhi, 2011(5) Scale 498
Over Activism of the Indian Judiciary

            Of late the Indian judiciary was criticized to have become

overactive, and is often accused of over action.  This accusation was usually levelled
by politicians or non-judicial system, until in 2008 when Justice A.K. Mathur
in “Divisional Manager, Aravalli Golf Course v. Chander Haas case.” He also stated
that the constitution has provided a broad space for all the three organs of the
democracy i.e. the executive, the legislative and the judiciary and that all the three are
supposed to be working within the specified ambit prescribed by the constitution.
From refusing to broaden the narrow point of view that was persistent in the A.K.
Gopalan, to over ruling it with the 7 bench Maneka Gandhi Case, the ideology of the
Apex Court has been shifting from one to another like a pendulum. In the “S.P Gupta
case”24 the court pronounced the following:

“He [the judge] has to inject flesh and blood in the dry skeleton provided by the
legislature and by a process of dynamic interpretation, invest it with a meaning
which will harmonize the law with the prevailing concepts and values and make it
an effective, instrument for delivery of justice.”25

Also, in the “ Supreme Court Advocates on Record case,”26

the court held the following:
“It belongs to the Judiciary to ascertain the meaning of the constitutional provisions
and the laws enacted by the Legislature.”

With due respect to the decisions of not just the Supreme

Court but all the other courts, it must be emphasised that judges sometimes tend to
forget that the judiciary is incapable of solving all the problems in the country.
Supposing that Court passes an order that from tomorrow poverty, or unemployment,

24
S.P Gupta vs. Union of India AIR 1982 SC 149
25
http://justicekatju.blogspot.in/2013/10/separation-of-powers-judicial-review.html
Separation of Powers, Judicial Review and Judicial Activism - by Justice Markandey Katju: 24/10/2013
26
Supreme Court Advocates on Record Vs. Union of India (1993) 4 SCC 441
 or malnutrition etc. in India are supposed to be abolished. Would these orders be
possible? Is it possible to implement an order like this? India is not a country with
huge financial strength. Moreover, many orders have the possibility of raising great
technical and administrative issues, and are rather in the domain of the legislature or
executive that that of the Judiciary
The realist ideology, from which the concept of Judicial
Activism originally stems, is correct to some extent when it says that judge made law
is essential. The Supreme Court in “Sarojini Ramaswami case”, observed:
          
"It used to be disputed that judges make law. Today, it is no longer a matter of
doubt that a substantial volume of the law governing the lives of citizens and
regulating the functions of the State flows from the decisions of the superior courts.
‘There was a time’ observed Lord Reid, ‘when it was thought almost indecent to
suggest that judges make law – they only declare it……….But we do not believe in
fairy tales any more’.”27

The argument of filling a gap of an existing law would have

worked had there been a law in the first place. But what to do in absence of a law?
And hence there is rises no question of filling the gap? In Vishaka vs. State of
Rajasthan, AIR 1997 S.C. 3011 there was no law for protection of women from sexual
harassment at work places, and hence no gap in an existing law. Yet the guidelines in
this connection were laid down by the Supreme Court, and said that this will be the
law until Parliament makes a law on the subject. Here the court practically acted as an
interim Parliament. Is this approach valid?

Does the Court have the power to perform the functions

that are the functions of a statutory authority?  In several decisions the Supreme Court
held that it cannot. Thus in “Supreme Court Bar Association vs. Union of India, AIR
1998 S.C. 1895”, a Constitution Bench of the Court held that under the Advocates
Act, 1961 only the Bar Council can debar a lawyer, and hence it reversed the earlier
decision of a 3 Judge bench debarring a lawyer.

27
Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219, (Paragraph 2)
            In “M.C. Mehta vs. Union of India (1997) 8 S.C.C. 770” the Supreme Court
directed that the maximum speed limit of the heavy vehicles driven in Delhi can be no
more than 40 Kmph. But is fixing speed limits not the task of the State Government or
the authority authorised by the state government under Section 112 Motor Vehicles
Act, 1988. Was that direction thus valid?

Can the Court side-line a statutory or a Constitutional

provision, and substitute it by its own direction or decision? It is evident that such a
thing cannot be done in a valid manner, but in fact it was done by the Supreme Court
in the second Judges case (Supreme Court Advocate Record Association v. Union of
India) in which the court in effect had ignored the provisions of Article 124 of the
Indian Constitution for appointing Judges to the Supreme Court, and had it substituted
it with its own procedure (The Collegium System).

The judiciary has often been criticised for taking things in

its own hands and over stepping the limits of the powers conferred upon it by the
constitution of India. However, the judiciary claims to be only discharging its judicial
functions in ensuring that it remedies the errors of the executive.
Conclusion and Recommendations

After doing all the research necessary for the

preparation of this project, it can be concluded that the Judiciary of India is, over all, a
very effective institution when it comes to providing legal solutions. However, with
recent trends of activism, a chance for deterrence from justice to dominance can be
hinted. Also while exercising its powers it must remember the following.
 The Constitution of India, in no manner suggests the judiciary
to be the substitute of the other two institutions. Therefore, the need arises for
the judiciary to set some limits
 If the Judiciary is justified in interfering in the domain of the
other two organs if it’s not functioning properly, then does the same logic
apply to the other side as well?
 The legislatives or politicians will strongly object to such
actions of the judiciary and might lead to internal conflict which would
threaten the integrity of the country
 The judiciary must, not stop judicial activism, but keep in check
the over activism that happens many times.
 Although the judge can interpret the law in light of the facts and
circumstances, the importance of the written legislation must be considered.
 The judgement should be in accordance with the law and the
facts and circumstances, not on the whims and fancies of the Judge or the
bench.

            In a democratic country like India, which is extremely diverse, it is

imperative that the power balance between the three pillars of the democracy be
maintained. At the same time, doing one’s job in an appropriate and do justice
towards it. The same goes for the judges as well. I would, therefore, like to conclude
this project by stating that “With Power Comes Responsibility.” We have handed over
the task of doing justice with every one of us, to the courts. They have the power, now
all that matters is how well will they fulfil their responsibility.
 Bibliography

 “Separation of Powers and Judicial review” by Justice Katju.

 Indiankanoon.com
 Manupatra
 “Judicial Activism: The Indian Version of American Realism” by Dr.
Pankaj Kakde, Assistant Professor, S. P. College of Law, Chandrapur

 “Jurisdiction and powers of the Supreme court of India” by Vijay

Jaiswal

 Jerome Frank’s contributions to the philosophy of American Legal

Realism – Julius Paul

 G. W. Paton, A Textbook of Jurisprudence, p.87

 The Path of Law – Justice Oliver Holmes, 1897