Judicial Activism and Over Reach: Issues and Concerns

Introduction

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

phenomena, Harmonious existence is a theory.1 Montesquieu- a French Philosopher,
believed that concentration of power in one person or group results in disastrous
consequences. Therfore, governmental functions shall be vested in three different
organs the Legislature, the Executive and the Judiciary. He further felt that each organ
should be independent from others and they should not interfere with each other. His
principle of Separation of Powers can be encapsulated as follows:2
1. Each organ should be independent of another.
2. No one organ should perform functions that belong to the other.
For any of the two combined together could lead to disastrous consequences. For
instance if Judiciary combines with the Executive, it will result in judges becoming
violent and oppressive. If the Judiciary combines with the Legislature, there would be
no liberty. And if the Executive and the Legislature combine it would lead to
arbitrariness.Thus following Montesquieu’s theory of Separation of Powers, the
functions of the three organs of the Government can be categorised into Policy
Making [Legislative Function], Policy Implementation [Executive Function] and
Policy Adjudicating [Judicial Function].

This paper shall discuss Judicial Activism with Montesquieu’s theory of Separation of
Powers in the background.

What is Judicial Activism?

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

“The doctrine or policy of being active or doing things with decision”. Judicial
Activism would therefore mean taking recourse to judicial process leading to judicial
pronouncements on different intricate issues whereby new approach towards legal

1
Susant Chatterji , ‘“For Public Administration”: Is Judicial Activism Really Deterrent to Legislative
Anarchy and Executive Tyranny?’,The Administrator,Vol.XLII,April-June 1997,pp 9-24
2
Montesquieu,Charles de Secondat,The Spirit of Laws,translated by Thomas Nugent,p.346
3
Chambers 20th Dictionary
philosophy is made or to put it simply it is active role played on the part of the
Judiciary.

In the words of Justice J.S.Verma, Judicial Activism must necessarily mean “the
active process of implementation of the rule of law, essential for the preservation of
functional democracy”. According to Prof. Upendra Baxi, “Judicial Activism is an
ascriptive term. It means different things to different people. While some may exalt
the term by ascribing it as judicial creativity, dynamism of the judges, bringing a
revolution in the field of human rights and social welfare through enforcement of
public duties etc., others have criticised the term by ascribing it as judicial extremism,
judicial terrorism, transgression into the domains of the other organs of the State
negating the constitutional spirit etc.”

Constitutional Position

The Constitution provides for sufficient provisions to maintain the theory of

Separation of Powers. Article 504 prescribes separation of the Judiciary from the
Executive.Articles 1215 and 2116 forbid the legislature from discussing the conduct of
any judge in discharge of his duties. Articles 1227 and 2128 prohibit the courts from
sitting in judgement over the internal proceedings of the legislature. Article 105 (2)9
4
50. Separation of judiciary from executive -The State shall take steps to separate the judiciary from
the executive in the public services of the State
5
121. Restriction on discussion in Parliament - No discussions shall take place in Parliament with
respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his
duties expect upon a motion for presenting an address to the President praying for the removal of the
Judge as hereinafter provided
6
211. Restriction on discussion in the Legislature - No discussion shall take place in the Legislature
of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the
discharge of his duties
7
122. Courts not to inquire into proceedings of Parliament -(1) The validity of any proceedings in
Parliament shall not be called in question on the ground of any alleged irregularity of procedure
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for
regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject
to the jurisdiction of any court in respect of the exercise by him of those powers
8
212. Courts not to inquire into proceedings of the Legislature - (1) The validity of any
proceedings in the Legislature of a State shall not be called in question on the ground of any alleged
irregularity of procedure
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for maintaining order, in the
Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those
powers
9
105(2). Powers, privileges, etc of the Houses of Parliament and of the members and committees
thereof- No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no person shall be
and 194(2)10 on the other hand, protect the legislators from interference of the courts
with regards their freedom of speech and expression.
Thus the Constitution of India, tries its best to inculcate Montesquieu’s theory of
Separation of Powers, but what actually happens when the Judiciary actually over
steps? And what exactly is ‘overstepping by the judiciary’. These questions have
remained unanswered by the Constitution.
Judicial review is a significant source of Judicial Activism. One can say that the seeds
of Judicial Activism were sown in Judicial Review. Though in India, the Constitution
does not specifically mention the power of Judicial Review, but it does mention that
any act violative of Fundamental Rights can be declared unconstitutional. Thus the
Judiciary can override the powers of the Legislature through Judicial Review. In India
power of Judicial Review is now considered to be a basic feature of the Constitution11.
Initially the power of Judicial review was limited to checking the acts or decisions
affecting fundamental rights, but lately the Judiciary has also started expressing its
concern in matters relating to social, developmental and environmental issues.
It could be easily said that the Emergency of 1975 and the period immediately
thereafter constituted defining moments for Judicial Activism in India. The infamous
ADM Jabalpur v Shukla12, popularly known as the Habeas Corpus case was decided
and was a blow to the civil liberties in India. The suspension of Article 21 prohibited
the challenging of any detentions made during that time. The Constitution was also
amended to permit the excesses of the Emergency. The Decision was strongly
condemned and “Judicial Activism” had a strong moral basis after the Emergency.

Judicial Activism vs. Judicial Over Reach

Having understood the meaning of the word Judicial Activism, it would be legitimate
to say that the line between the terms Judicial Activism and Judicial Over Reach is
difficult to draw. As the former Chief Justice of India, Justice Ahmadi has stated

so liable in respect of the publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings
10
194(2). Powers, privileges, etc, of the House of Legislatures and of the members and committees
thereof-No member of the Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any committee thereof, and no
person shall be so liable in respect of the publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings
11
Kesavanand Bharti v. State of Kerala ,AIR 1962 SC 933
12
AIR 1976 SC 1207
“Sometimes this Activism has the potential to transcend the borders of Judicial
Review and turn into populism and excessivism”. Activism according to him , is
“populism when doctrinal effervescence transcends the institutional capacity of the
judiciary to translate the doctrine into reality, and it is excessive when a court
undertakes responsibilities normally discharged by other coordinate organs of the
government”13

Thus to one judge it maybe Activism while to the other it may be Over Reach. Or to
ones who may agree with the Judgement it maybe Activism and to those who disagree
it maybe Over Reach. It is difficult to lay down strict guidelines as to when it would
be Activism and when the Judiciary might be over reaching. But if we have a look at
some of the provisions of our Constitution like Article 32(Right to Constitutional
Remedies in the Supreme Court directly for enforcement of all fundamental rights),
Article 226 ( power of high courts to issue certain writs) and Article 227 (power of
superintendence over all courts and tribunals by the high court), just goes to show that
the basic document of governance- our Constitution has provided for these
overreaching provisions. The Constitution has placed that responsibility of Judicial
Governance in the Judges of higher judiciary.

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

judiciary’s non elective character, due to which it can overcome counter majoritarian
– difficulties. Otherwise why neither the Executive nor the Legislature but only the
Judiciary alone should be the enforcing institution? It is because Judiciary is that
branch of the government with greatest institutional capacity to enforce the legal
norms in a disinterested way. The Legislature and the Executive because of their
vested interest of seeking re-election are prone to ignore constitutional limits to
pamper the electorate.

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

“ The true test of the legitimacy of any legislation was not weather it was made by
elected representatives but that was in conformity with the general will or the true

13
DR K.N Katju Memorial Lecture on ‘Separation of Powers and Judicial Activism in India’, New
Delhi,26 April 2007
common good, and the general will or the common good could only be discovered or
formed by a process of dialectical reasoning.”
He gave the following reasoning for justifying the law making of the Judiciary-
1. Judges are fit candidates to make law since the rational dialectic comes
naturally to common law judges
2. Judicial decisions stand and fall on the strength of their reasons, and the
judicial law making role is more interactive and broad based than is usually
assumed.
3. Further, benefit of such law making is that it provokes the legislature to act, in
which case legislature maybe persuaded to replace the ad hoc legislation with
more comprehensive and proper legislation.
4. A great strength of the Judiciary in law making was that it is not elected and so
not beholden to vote banks.
5. Finally he gives a constitutional justification, that judges in India are bound by
their oath as Judges to play an active role in law making.

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

to curb legislative adventurism and executive tyranny by enforcing Constitutional
limits. Approach to Judicial Activism could be either negative or affirmative. It is
negative when the Judiciary declares the acts of the Legislature and Executive as
intra vires or ultra vires depending on its conformity with the Constitution. An
affirmative approach on the other hand is when the Judiciary sitting over to decide
the validity of a legislative measure or an executive action interprets the
constitution in such a way that it goes beyond the constituionalised value
judgements.

Issues and Concerns

The following are the main issues or areas of concern with an activist Judiciary-
1. Where the Judiciary interferes with the functions clearly of administrative
or legislative nature, in such cases, is the Judiciary responsible /
accountable to anyone for the discharge of such functions and what are
constitutional and legal sanctions behind such orders made and directions
given by courts, by way of Judicial Activism?
 2. The dilution of the theory of Separation of Powers is inadvertent when
there is an activist Judiciary. The critics believe that it goes against the
Constitution.
3. Judicial Activism could be used by the current day political establishments
to get their interests protected. And thus their could be misuse of the
Judicial Process.

I.Accountability of Judiciary

One of the main concerns for the critics of Judicial Activism is that the law making
done by judges is no good till it is brought into effect. The Law making organ of the
government -the Legislature has the means of making laws and bringing them into
effect, unfortunately the Judiciary does not. So what happens when the Judiciary
makes a law but fails to effectively implement it because of lack of means to do so?
S.P Sathe in his book Judicial Activism in India-Transgressing Borders and
Enforcing Limits 14makes a difference between Judicial Law making in the ‘Realist
Sense’ and ‘Non Realist Sense’. He says that Judicial Law making in the realist sense
is what the Court does when it expands the meanings of the words ‘personal liberty’
or due process of law’ or ‘freedom of speech and expression’. When the Court held
that a commercial speech (advertisement) was entitled to protection of freedom of
speech and expression15, it was Judicial Law making in the realist sense. When
however the Court lays down guidelines for inter-country adoption, against sexual
harassment of working women at the work-place, or abolition of child labour, it is not
judicial law making in the realist sense but amounts to legislating like a legislature.
Sathe terms this as judicial excessivism.

It is when such law making is undertaken by the Judiciary that the question of how to
implement the law arises. If the Legislature passes legislation to the effect, it would be
a picture perfect scenario. But when the Legislature refuses to take an action, there is
a vacuum that’s created between the law pronounced in the Judgement and its actual
implementation. A court is not equipped with the skills and competence to discharge
functions that essentially belong to the other co-ordinate organs of the government.
14
S.P Sathe, Judicial Activism in India –Transgressing Borders and enforcing Limits , 250 (Oxford
University Press, India, Second Edition,2010)
15
Tata Press Ltd. V. Mahanagar Telephone Nigam (1995) 5 SCC 139
The second question that arises is whether such legislation by the Court is desirable?
Of course this can be answered in context with Separation of Powers Doctrine, which
shall be dealt with shortly. But the desirability of such a legislation can be contested
vis a vis the fact that such law making by the court might not see all future
requirements and might have been made without taking into consideration various
viewpoints. For e.g. Vishakha’s case16 ,where guidelines agaimst sexual harassment at
work were laid down. It took the Legislature over a decade to contemplate Legislation
to the effect. The Court did lay down the guidelines, but only the Legislature had to
think through what would happen in case of breach of such guidelines, what would be
the penalties that would be imposed, what would mean by the term ‘sexual
harassment’, whether only women could be liable to be sexually harassed at
workplaces and many such concerns. As Justice Srikrishna recognized in one of his
lectures that “the answers to many socio-economic political problems lie with the
Parliament and in a polling booth and not in a courtroom and that such activism
strains the institutional resources of the court. It also diverts the time, talent and
energy of Judges into channels that they are neither required to navigate, nor
equipped to, for lack of competence, skill or resources.”

Thus the discussion boils down to the basic question of what laws, principles would
be applicable to the Judiciary in deciding matters which are essentially pertaining to
other organs of the states? And what is the method or procedure provided by the
Constitution or any law for the enforcement of such orders passed by the courts?

Thus the entire mechanism for implementing such laws and ensuring that they are
followed and in case of breach, imposition of penalties –is not available with the
Judiciary. The danger of Judiciary creating a multiplicity of rights without the
possibility of adequate enforcement will, in the ultimate analysis, be counter
productive and undermine the credibility of the institution. When laws that are
pronounced cannot be implemented, the entire process of making such laws becomes
a sham. To conclude this section, I quote Arun Shourie from his book ‘Courts and
their Judgements’17-

16
Vishakha v. State of Rajasthan ,AIR 1997 SC 3011
17
Arun Shourie, Courts and their Judgements,404 (Rupa & Co,New Delhi, First Edition,2008)
 ‘But to deliver a remedy requires the sorts of things that are beyond the
reach of Judges. It requires resources that the Courts do not have. It
requires time and energy that the mountain of cases which weighs down
each Judge will not allow him to spare. It requires whipping other
institutions into doing their job-whipping of a degree that Courts have
not shown the inclination to inflict.

II.Separation of Powers

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

one of the basic features18 of our Constitution. The dilution of the Doctrine is another
issue with the critics of Judicial Activism, so much so that it has been felt that Judicial
Activism is contrary to the Constitution. The critics while pointing out the dilution of
the Doctrine have conveniently failed to understand that the line which divides the
Judiciary from the Legislature and the Executive is bold sometimes, at times its faint
and completely invisible at other times. There could be five categories of Judicial
Action which could be further categorised into Activism and Excessivism-
1. Minimal Judicial action and literal interpretation (staying within
Montesquieu’s limits). Under this the Judiciary can traverse only territory
demarcated for them by the legislature and the executive, and as such there is
no controversy, neither there is any scope of any controversy.
2. Creative or purpose interpretation, for instance expanding the meaning of
certain terms.
3. The Oversight Function over the Executive: Executive action or
malfunction: Filling in gaps and exercising oversight over the executive
inaction.
4. The Oversight Function over the Legislature: Making common law, ad hoc
legislation where legislature fails to legislate, or there are lacunae in existing
legislation and passing orders and directions and reviewing functioning of the
legislature.
5. Creative interpretation which amounts to rewriting the Constitution.

18
Kesavanand Bharti v. State of Kerala ,AIR 1962 SC 933
In the first point above one could say that it is in such cases that the line between the
Judiciary and other organs of the state is bold and visible. In the second point the
controversy begins, as the dividing line between the Judiciary and the other organs
starts becoming fainter. This is the grey area which is neither black nor white.
Whether it is Activism or Excessivism on the part of the Judiciary, is difficult to
gauge in such a situation. In the third, fourth and fifth points the line becomes
invisible as the Judiciary takes over the functions of Policy Making and Policy
Executing.

There is no straight jacket formula which will help in arriving at a conclusion that
Judiciary has overstepped or it has been well within its limits. A case, how decided is
dependent on how a judge perceives it and integrates his wisdom with the law of the
land to arrive at a conclusion. So there is no objectivity but only subjectivity that
becomes a deciding factor to determine whether the Doctrine has been diluted or not.

Glaring examples of Judiciary overstepping its limits and stepping in to the area of the
executive has been orders passed by Honourable Delhi High Court on subjects
ranging from age and other criteria for nursery admissions, unauthorised schools ,
begging in public, auto rickshaw overcharging, size of speed breakers on the road.
These are clearly policy areas, where the Judiciary has interfered and legislated.

The Jagadambika Pal case of 1998 involving the Uttar Pradesh Legislative Assembly
and the Jharkhand Assembly case of 2005 are again, two glaring examples of
deviations from the clearly provided constitutional scheme.

It is believed that the framers of our Constitution took care to provide for an
independent and impartial Judiciary as the interpreter of the Constitution and as the
custodian of the rights of the citizens through the process of Judicial Review, which
permits the Judiciary to interpret laws but not lay them down. Judicial review is much
stricter a concept, whereas Judicial Activism, as the name suggests is much wider in
scope. The framers, it is true, only permitted to enquire into any legislation or an
executive action. But Judicial Activism tends to hijack the functions of the other
organs and act upon it.
The question then arises is that why would Judiciary overstep? And the answer to this
is given by Sathe very clearly-
‘Those Indians who finding that the legislatures and the executive s are not
responding to their grievances turn to courts for protection against injustice from a
class-structured polity, and secure some relief, however paltry, have begun to look to
the Court as their own choice. Sathe further adds that ‘Judicial process is expensive
dilatory and technical and if it is preferred despite such inherent defects, it is only
because the other avenues of redressal have become ineffective and unreliable.’
This is how the entire concept of Public Interest Litigation came up and it sprouted
from nowhere but from an Activist Judiciary.

Fali Nariman in his autobiography- ‘Before Memory Fades’ 19states something similar
on the lines of what Sathe has mentioned above. According to Nariman, ‘judicial
over-reach’ is the direct consequence of legislative and executive ‘under-reach’: i.e.
poor performance in the making of laws and particularly in their execution. He also
states how judicial power keeps vacillating according to the need of the times. For
instance during the period of emergency of 1975 it had completely contracted.

Having stated the reasons for the Judiciary overstepping, the pertinent question here is
whether this overstepping is diluting the Doctrine and thus being contrary to the
Constitution? The question can be answered in the light of the following parameters-
1. True Constitution, although makes separate provisions for three organs of the
state, does not place them in watertight compartments.
2. The Constitution by virtue of Article 14220 gives extensive powers to the
Supreme Court in exercise of its jurisdiction to pass any decrees or make any

19
Fali.S.Nariman,Before Memory Fades-An Autobiography, ( Hay House Publishers (India) Pvt.
Ltd.,2010)
20
142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 )
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before it, and any decree so passed
or orders so made shall be enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in
such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and every power to make any order for the purpose
of securing the attendance of any person, the discovery or production of any documents, or the
investigation or punishment of any contempt of itself
 orders for carrying out justice. As Justice Vivian Bose has described this
power granted by Article 142 as the ‘flaming sword’ in an elegant prose21-

“We have upon us the whole armour of the Constitution and walk
henceforth in its enlightened ways, wearing the breast plate of its
protecting provisions and flashing the flaming sword of its
inspiration”

The Constitution instead of putting the organs into watertight compartments , gives
them a leeway to move around , especially the Judiciary by way of Article 142 and by
holding Judicial Review as the basic feature of the Constitution. The issue then is not
whether diluting the Doctrine is contrary to the Constitution, but how far can the
doctrine be diluted or what are the permissible limits of such dilution. The content of
Judicial Power is not defined in our Constitution. If cases where the Courts have laid
guidelines for say inter country adoption, or guidelines against sexual harassment at
work etc have been treated as not a legitimate judicial function, then does that mean
that the Judiciary is only there to interpret law as intended by the legislature? Would
there be any scope of interpretation? Would there be any conflict if all the law has to
be interpreted as per what the legislature had intended to? True the Judiciary cannot
cross the line of separation to the extent that it usurps the powers of the other organs.
But the above mentioned guidelines by the Courts are examples of instances where
the legislature did not legislate at all. And also the guidelines laid down by the
Judiciary become the law of the land only when, even after having given such
“GUIDELINES”, the legislature fails to take any step to fill in the gap. After all the
Courts have not enacted a law, they have merely given a framework for the
legislature as some food for thought. Failure of Legislature to act even after having
been given guidelines cannot be held against the Judiciary under the garb of diluting
the Doctrine of Separation of Powers

III. Influence by political establishments

21
Fali.S.Nariman,Before Memory Fades-An Autobiography,369 ( Hay House Publishers (India) Pvt.
Ltd.,2010)
 A judicial decision either stigmatises or legitimises a decision of the legislature or the
executive. Benjamin Cardozo22 has said –
‘The restraining power of the judiciary does not manifest its chief worth in the few
cases in which the legislature has gone beyond the lines that mark the limits of
discretion. Rather shall we find its chief worth in making vocal and audible the ideals
that might be otherwise silenced, in giving them continuity of life and expression, in
guiding and directing choice within the limits where choice ranges’

That is the power of Judiciary that Cardozo envisages. Thus a judicial decision needs
to be neither politically motivated, nor politically inclined, since it is through its
decisions that the court changes the existing power relations, judicial activism is
bound to be political in nature. Through its decisions the constitutional court becomes
an important power centre of democracy. Thus a politicised judicial pronouncement
not only strikes at the roots of the democracy but a tainted judiciary can never do
justice.
It is natural for the critics of Judicial Activism to fear an influence of the current
political establishment on the Judiciary.

A very glaring example has been the entire period of emergency of 1975 when the
Judiciary was almost controlled by the Legislature. The emergency brought in severe
restrictions on an individual liberty and judicial review.

Another example which explains how the political establishment influences the
Judiciary is the Rent Control legislation, which was enacted in the Second World War
when housing became scarce. Over the years the legislation became counter
productive to the interests of the landlords, as they could not cover basic expenses
through the rent. They thus preferred keeping their houses vacant. Their was a need to
update the law, since the legislature did not act the case came up to the Supreme
Court. The case was that of Malpe Vishwanath Acharya v Maharashtra23 and the
court held that the Bombay Rent Control Act enacted in 1947, which froze the rents
payable by tenants to the amount payable in that year, imposed an unreasonable
restriction on the right to carry on any trade or business guaranteed by article 19(1)
22
S.P Sathe, Judicial Activism in India –Transgressing Borders and enforcing Limits , 271 (Oxford
University Press, India, Second Edition,2010)
23
(1998) 2 SCC 1
(g) of the Constitution. The Court thus asked the government not to extend that law
and enact a law that would give adequate returns to the landlords. Since it is the
function of the legislature and not the judiciary to make laws an embarrassing
situation had emerged by such pronouncement of the Court. A fierce agitation was
launched on behalf of the tenants against the government’s intention to revise the law
in favour of the landlords. The following were the major issues with the judgement-
1. It was a question of Policy.
2. The matter belonged to the Legislature and it suited them to get the matter
sorted out through the judicial process.
3. The Court had merely obliged the political establishment of the day, then.

The purpose of setting forth this case was to depict lucidly how the judiciary, if does
not practise self-restraint can be a puppet in the hands of the Legislature. Though the
irony is that on the face of it, it seemed, in the above case, that the Judiciary directed
the Legislature, but analysing it one realises that the Legislature actually, through the
judicial process, sorted the matter in its own interests.

Conclusion

As we can see the Doctrine of Separation of Powers runs as a thread in all the major
areas of concern discussed above. In a way it is actually the Doctrine which raises a
major concern and the other concerns flow out from it. Be it the infrastructure
missing for the Judiciary to implement the laws or whether the Judiciary is influenced
by the political establishment of the day, Separation of Powers is at the root. And
when exactly does the Judiciary dilutes the doctrine and crosses the limits is not
defined.

If the intention of the framers of the Constitution was to not let the Judiciary legislate,
it could have placed all three organs in separate water tight compartments, which it
has very clearly not. Even the framers of the Constitution intended to give space to
the Judiciary to move around and about the line of separation. Though there are
examples of the Legislature exercising the Judicial Power- for instance in the disputes
arising out of the 10th Schedule of the Constitution. And similarly the Executive while
exercising statutory and discretionary powers takes up adjudicatory role and also
makes laws by way of subordinate legislation or by promulgation of Ordinances in
terms of Article 123 and 213 of the Constitution. But it is only the Judiciary which is
by way of Article 142 given wide powers to pass orders or decrees in furtherance of
Justice. That’s the trust that the framers have placed in the higher Judiciary. And such
a trust has to come with responsibility. Because without responsibility such trust can
become tyrannical and the consequences a havoc for a democracy.

The legitimacy of the Court and Judicial Activism is derived from the faith that
people repose in the Judiciary and thus Courts have to continuously strive to maintain
their legitimacy. Also one has to understand that Judges after all are human beings
and to err is only human. An activist Judge has to be prepared to take criticism of his
judgements. This is done by jurists and lawyers and, at a more mass level by media
etc. This is an important tool to keep a check on the fact that the trust that the framers
of the Constitution have put in the Judiciary of the country, is respected and is
maintained with responsibility. While answering a question about corruption and
accountability and refuting the charges that judiciary does not represent the will of the
people, Justice Y.K Sabharwal said in an interview24
“When the Supreme Court declares that executive and the legislature has exceeded
its limits and crossed province the judgement is a decision on behalf of “We the
people of India,” to whom the legislature and the executive are accountable”

It is not denied that the Separation of Powers is a basic feature of the Constitution of
our country and it should be respected. But at the same time Judicial Activism cannot
be curbed. Judicial Activism provides a safety valve in a democracy. Just a few
concerns need to be addressed so as to prevent Judiciary from usurping the powers of
the other organs. For instance more transparency in the appointments in the Judiciary
will generate more faith in the Judicial System of the country. The Guidelines that are
provided for in the judgements, where no legislation exists, could be treated as an
interim arrangement. And instead of accusing Judiciary of Over reach, a mechanism
to concretise such guidelines into legislations actively, should be devised. Areas
where the Judiciary is required to decide in favour of the political establishment of the
day, the best mechanism would be ‘self-restraint’ on the part of Judiciary. The

24
Dr P.S.Lathwal ,”Good Governance VIS-VIS Judicial Activism”,M.D.U Law Journal,Vol X,Part-
I,2005
panacea for the so called evil ‘over-reach’ is with the Judiciary itself and ‘self –
restraint’ is the best form of keeping a check on itself.

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

“That plants slowly nurtured by judicial craftsmanship have grown into sturdy trees
and have blossomed with colourful and fragrant flowers. Judicial Activism has added
much needed oxygen to a gigantic democratic experiment in India by the alchemy of
judico-photosynthesis”

BIBLIOGRAPHY
Books
1. S.P.Sathe , Judicial Activism in India-Transgressing Borders and
Enforcing Limits ( Oxford University Press, India, Second Edition 2010)
2. Fali.S.Nariman, Before Memory Fades-An Autobiography (Hay House
Publishers (India) Pvt. Ltd.,2010)
3. Arun Shourie, Courts and their Judgements (Rupa & Co,New Delhi, First
Edition,2008)
Articles
1. Susanta Chatterji , “For Public Administration”: Is Judicial Activism
Really Deterrent to Legsltaive Anarchy and executive Tyranny?,The
Administrator,Vol. XLII April-June 1997.pp9-24
2. Dr P.S.Lathwal,Good Governance VIS-À-VIS Judicial Activism,M.D.U
Law Journal,Vol.X,Part-I,2005
3. Satyabrata Sinha, “Judicial Activism:Its Evolution and Growth”, in Prof
D Banerjia , Judicial Activism-Dimensions and Directions (Vikas Publishing
House Pvt. Ltd,New Delhi,First edition 2002)
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