INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

Index

1. Acknowledgement………………………………………………….1

2. Introduction…………………………………………………………2

3. Conventional role v. Improvised role……………………………..5

4. Judicial Activism: Adding To The Dynamicity Of The Society….7

5. Objective of judicial activism and restraint………………………..8

6. The mandate of the constitution……………………………………8

7. Public interest litigation…………………………………………….10

8. Judicial restraint: judges should apply the law, not make it……...11

9. Judicial activism: a paper tiger? ....................................................12

10. Conclusion…………………………………………………..,……..14

11. Sources……………………………………………………………….15

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

1. INTRODUCTION

In this paper, we have taken an endeavour to discuss judicial activism vis-à-vis judicial restraint
as how one poses problems for another and keeps a corresponding relationship through out.
Judicial activism has always been a source of heated debate, especially in the light of
recent developments in this regard. Over the last few years with various controversial decisions,
judges of the Supreme Court as well as various High Courts have once again triggered off the
debate that has always generated a lot of heat. But still, what the term “judicial activism” actually
connotes is still a mystery. From the inception of legal history till date, various critics have given
various definitions of judicial activism, which are not only different but also contradictory. This
is an attempt to bring out the exact connotation of “judicial activism” and to find out its
effects on today’s changing society.

The Indian constitution which was drafted in 1950 is one of the well compiled and well planned
constitutions. It is a constitution which defined powers and functions of the organs of the
government, which are meant for a safe and fair indirect parliamentary democracy in India.
Hence supremacy of parliament is the essential feature of our political system. The Supreme
Court acts as the guardian and the protector of the constitution. It prevents parliament from
enacting any legislation against the spirit and letter of the constitution. Courts in India respected
reputation for creatively and genuinely discharging their assigned duty conscientiously.

The Indian constitution consists of all essential requisites for the exercise of judicial review – as
a written and rigid constitution, federation having division of powers and fundamental rights.
Judicial review is the power conferred upon the apex court by constitution, the power to hold any
law, official action based on a law, any other action by a public official that deems to be in
conflict with constitution. The power of judicial review enables the Supreme Court to review the
acts and the orders of the legislative and executive wings of the government. They are directed to
act within their ambit for fair and smooth administration. A complete harmony between judicial
review and parliamentary supremacy is an outstanding achievement of the architects of the
Indian constitution.
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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

Both U.S and U.K adopted the extremes of supremacy of American judiciary and supremacy of
British parliament, whereas Indian constitution has adopted a golden mean between the two. No
supreme court can stand in judgement of sole will of the parliament, representing the will of the
entire community. But when there is a question regarding the future of the community, judiciary
can pull up that sovereign power.

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

2. CONVENTIONAL ROLE V. IMPROVISED ROLE

After the end of British Raj, the executive the executive has always looked upon the judiciary as
a hostile branch of the State as executive started to rot itself into a system for personal and not
public gains. Another reason can be traced into the Theory of Social Wants1. Masses were
oppressed beyond imagination by the unbridled actions by Money power, Muscle power,
Media power and Ministerial power, which compelled judiciary to provide relief. Judiciary
couldn’t wait for the parliament to take some action as it takes far too long for social patience to
suffer.

With the framing of the Constitution of India, the three wings of effective governance came
into being, namely the legislature, the executive and the judiciary. The Constitution
provides for separation of powers and hence demarcates the powers and areas of all these
three machineries. However sometimes with the failure of the legislature and the executive,
the separation of power remains a theory only in the text book and the third wing of
governance, the judiciary assumes powers unprecedented for under the name and guise of
judicial review, which is a very basic feature of the Constitution of India. The line that
demarcates the power of all three organs in an indirect democracy like India is very thin. One
question that arises before the judiciary after every judgement is to whether to put any new
guidelines and norms for the executive and legislature for further protection and up to what
extend. When judiciary lays down the guidelines, they move a step closer in getting involved in
the public administration. It has over the period of time changed from a mere spectator to a pro-
active player. This is what one calls as judicial separation in general terms.

The Indian judiciary has taken upon itself the task of ensuring maximum freedom to the masses
and in the process, to galvanize the executive and the legislature to work for public good.
However, this changing stance of the judiciary from moderate to active role has invited wrath

1
B. S. Tyagi, Judicial Activism in India, Srishti Publishers & Distributors, New Delhi, 2000, pp 80

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

from some sections of the society, criticism from some others and support and cheers from still
other sections. Some political scholars feel that the judiciary is usurping powers in the name of
public interest while according to others, judicial activism and interference is actually preventing
the executive from going astray. Therefore, in the historic case of Mumbai Kamghar Sabha v.
Abdul Bhai2, the Apex Court introduced the doctrine of judicial activism, though without
the nomenclature.

2
AIR 1976 SC 1465

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

3. JUDICIAL ACTIVISM: ADDING TO THE DYNAMICITY OF THE

SOCIETY

The simplest and the greatest example of judicial activism is Marbury v. Modison3 which is
landmark case in the United States of America. It formed the basis of judicial activism in
America. This conflict raised the important question of what happens when an Act of Congress
of United States of America conflicts with the Constitution. Chief Justice Marshall answered that
Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead
to follow the Constitution, affirming the principle of judicial review. In support of this position
Marshall looked to the nature of the written Constitution—there would be no point of having a
written Constitution if the courts could just ignore it.

"To what purpose are powers limited, and to what purpose is that limitation committed to
writing, if these limits may, at any time, be passed by those intended to be restrained?" Chief
Justice Marshall also argued that the very nature of the judicial function requires courts to make
this determination. Since it is a court's duty to decide cases, courts have to be able to decide what
law applies to each case. Therefore, if two laws conflict with each other, a court must decide
which law applies. Finally, Chief Justice Marshall pointed to the judge's oath requiring them to
uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the
"Constitution" before the "laws of the land."4 Thus in the first time in the modern history it was
recognized that judicial activism makes the law as the living law. Judicial activism is nothing
more than judicial creativity which emphasises upon evolving new juristic principles for the
development of law remaining alive the reality.

3
2 L Ed 60 (1803)

4
Andhyarujina, T.R. “Issues of Judicial Independence” Hindu, 10th September, 2009.

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

4. OBJECTIVE OF JUDICIAL ACTIVISM AND RESTRAINT

Whether judges are required to be activists or restraint towards majority consensus or towards
legislature passing the statute or towards the words of the constitution or towards the intent of the
makers of the constitution?

Accountability of the judges to towards the citizens who entrusts judiciary with power and
responsibility to protect the citizens from the abuse of their rights by legislation or as the case
may be. The objective of judicial accountability has been to fulfil legislative mandate made in
order to support the justice delivery system made by legislation itself. Judges in a democracy are
required to interpret the statute as to fill the rightful need of the hour and society. Judiciary needs
to listen to the people what they want; try to look at their grievances only then we will get a
definite answer for this one.

5. THE MANDATE OF THE CONSTITUTION

It has so long that as objection has been raised by arguing that judiciary is entering into the
normal administrative setup of the country, which is not the mandate of the constitution. To
understand the mandate of the Indian constitution, we really need to think and apply the
intentions of the makers of the constitution and that cannot be done without the effort of the best
legal minds of the country. Various contradicting judgements have been passed by Supreme
Court of India through out our legal history. The first instance where judicial activism was
denied by the Supreme Court was the case of A. K Gopalan v. State of Madras5 wherein the issue
was about the meaning of the world law in the phrase “due process of law” as used in Art 216 of
Indian constitution and court held that law means law declared by legislature and judiciary

5
AIR 1950 SC 27

6
Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except
according to procedure established by law.

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

cannot interfere in that. Court gave a widest ambit of the constitutional provisions in the case of
Kesavanda Bharati case7 in which supreme court held that the basic structure of the constitution
cannot be amended in any case even by the enactment of the legislature. It was succeeded by
Maneka Gandhi v. Union of India8 in order to protect the human rights and liberties of the
citizens which are continued till date.

When judiciary starts rendering ‘complete justice’ as guaranteed under article 142 9 of the Indian
constitution, the areas where substantial evidences are required for inviting judicial attention and
in some other areas no such evidences is required and free judiciary has intervened suo motto or
on the basis of PIL , are corrected. A bare reading of article 142(1) does not lead to a conclusive
proposition. They words in the clause are “…. may pass such degree or make such order for
doing complete justice in any cause or matter pending before it.” If one construes these words in
isolation, the effect is enormous, perhaps to the extent where other repositories of judicial power
under constitution are rendered unnecessary. One can even question the necessity for Article 32
and the writs under it, in the light of the fact that the Supreme Court can pass any order to

7
AIR 1973 SC 1461

8
AIR 1978 SC 597

9
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

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

complete justice in exercise of its power under article 142. Unless the jurisdiction of the article
142 is limited, the power under article 142 becomes co-extensive with or even greater than that
under article 32.

Even though judicial accountability is nowhere directly contemplated in the constitution of India,
is very evident from the judicial practices in the past a decade or so. The current judicial process
which has given rise to the debate on judicial activism is merely a continuation of the justice
delivery system which has been prevalent in this country all along. In India the case is different
from that of US and UK because the credit of initiation of judicial activism goes to PIL. PIL
passed a wave of new hope among the deprived citizens of the country which ensured judicial
participation in the public administration, a manifestation of judicial activism. After initial
restrictions, 25th amendment Act, 1971 was passed and the subject matter of PIL was widened to
the extend that judiciary started giving procedural and directory guidelines to the executive in
terms of compliance and enforcement of directive principles.

6. PUBLIC INTEREST LITIGATION

In the 80s, the supreme court evolved a new jurisdiction which has come to be known as Public
Interest Litigation which evolved a liberal interpretation of the fundamental right of life and
liberty guaranteed by Article 21 to include the right to live with dignity and, therefore, to enjoy
the enjoy the basic amenities of life such as food, water, shelter, basic education, health care and
even the right to a healthy environment. Simultaneously, the court declared that they could and
should direct the executive to provide these amenities to citizens who were denied these. 10

10
Aruna Roy, Jean Dreze and Nikhil Dey, “The Right to Transparent Governance”, Combat Law, Vol. 6, Colin
Gonsalves (ed.), Issue 2, March-April 2007, p.90.

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

The frequent use of this concept has led to several instances where courts have directed actions
that were hitherto considered to be exclusively in the domain of the executive. Examples are the
orders to convert commercial vehicles in Delhi to natural gas fuel, shutting down of polluting
industries around the Taj in Agra and the dismantling of all structures on the ridge running
through Delhi. While these orders have generally upheld the citizens’ rights to life and liberty,
they have led to fears regarding ‘judicial over reach’. As such, it may be appropriate to suggest
that the limits of judicial intervention should be discussed in non-judicial for and should be
defined by law. Also, it is for consideration whether judges should be held accountable for any
attempt to exceed their powers and to encroach on the territory of the executive.

7. JUDICIAL RESTRAINT: JUDGES SHOULD APPLY THE LAW, NOT

MAKE IT

Our Constitution contains checks and balances, which require all the three wings to work
harmoniously. It has created a separation of powers between all the three branches or wings
though the separation, it is now well accepted, is not as rigid as it is under the American
Constitution.

No person, however high, is above the law. No institution is exempt from accountability,
including the judiciary. Accountability of the judiciary in respect of its judicial functions and
orders is vouchsafed by provisions for appeal, reversion and review of orders. What is the
mechanism for accountability for serious judicial misconduct, for disciplining errant judges. Our
Constitution provides for removal of a judge of the Supreme Court or the high court for proved
misbehavior or proved incapacity, by what is popularly called the process of impeachment,
where under two thirds of the members of each House of Parliament may vote for the removal of
the judge. So far, only one impeachment proceeding has been initiated against a Supreme Court
judge. It failed because Congress abstained from voting and consequently two- thirds majority

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

was not available. It is now generally accepted that the present impeachment process is
cumbersome, time consuming and tends to get politicised. It needs to be reformed urgently.

For Supreme Court and other lesser court judges it is ideal to refrain themselves from reading
commentaries, policy references or judge’s philosophies because it may construe the law
wrongly or biased. It is very necessary to harmonise the judicial restraint. In the case of Kumar
Padma Prasad v. Union of India which discussed on the viability of the probing to be done in the
administrative action in reference to the public interest litigation registered by the judges of the
high court. It was held that Suo Motto assuming of judicial jurisdiction to probe in the
administrative matter relating to the high court was not justifiable. Supreme Court recently gave
a judgment against smoking at public places, Murli S Dewara v. Union of India11 reflects as if
the courts have taken the work over the legislating the statutes, which is not treated to be good
sign for democratic functioning.

8. JUDICIAL ACTIVISM: A PAPER TIGER?

One of the views of that society, which postulates judicial activism as a wrong practice is that it
has a detrimental effect on our democratic order. The judiciary has also flaws and loophole in its
administration system, so in case of an autocratic decision by the judiciary, there is no recourse.
The misuse of PIL to achieve political ends is another curse that looms around Indian judiciary.
Red-tapism, corruption, changing governments, lack of legal-awareness, weight of arrears of
cases, has contributed to weakening of the implementing mechanism of the executive which has
lead to some orders to remain on paper only. This is due to the lack of effective feed back
system. Judiciary despite having the best intention is not able to deliver the goods well in time.

The counter arguments are as follows:

11
2002 Supp SCC

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

Firstly, it has become crystal clear that not only has judicial activism activated the judiciary but
has activated the executive and the legislature too. Several new legislations have appeared on
the scene after judiciary’s efforts and directions (The Consumer Protection Act, 1986, The
Environmental (Protection) Act, 1986, Protection of Human Rights Act, 1993 etc.). Judicial
activism has unearthed several scams and scandals (e.g. Hawala Scam, Fodder Scam, St. Kits
Scam, Illegal Allotment of Government Houses and Petrol Pumps, Fertilizer Scam etc.).

The judiciary, like the legislature, is also manned by human beings who come from the same
social milieu and are subject to same human frailties and social constraints. No institution has
monopoly rights to weaknesses or to making mistakes.

The apex Court itself has given cautious guidelines on the abuse of P.I.L. in several cases
(People’s Union for Democratic Rights v. Union of India12; Bandhua Mukti Morcha v. Union of
India13; M.C. Mehta v. Union of India14).

12
AIR 1983 SC 339

13
AIR 1984 SC 803

14
AIR 1987 SC 1087

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9. CONCLUSION

Recently the country has seen instances of beneficial judicial activism to a great extent.
High profile politician Shibu Soren has been convicted for a murder committed in 1994. Film
world celebrity Sanjay Dutt has been convicted of offences under the Arms Act committed
in 1993. Navjyot Sidhu, an ex-cricketer with a gift of the gab has been convicted for a road rage
killing committed 18 years ago. Finally and most reassuringly for the public, the Delhi High
Court has reversed a perverse decision of a lower court in the notorious case of murder of
Jessica Lall some seven years ago. Manu Sharma’s acquittal was a patent miscarriage of justice
and there was a shrill public outcry. On appeal, the High Court has convicted Sharma.

Whatever be the criticisms against judicial activism, it cannot be disputed that judicial activism
has done a lot to ameliorate the conditions of the masses in the country. It has set right a number
of wrongs committed by the states as well as by individuals. The common people are very often
denied the protection of law due to delayed functioning of the courts, also called judicial
inertia or judicial tardiness. Judicial activism has started the process to remove these occasional
aberrations too. This can be furthered only by honest and forthright judicial activism and
not by running down the judiciary in the eyes of the public. The greatest asset and the
strongest weapon in the armoury of the judiciary is the confidence it commands and the
faith it inspires in the minds of the people in its capacity to do even-handed justice and
keep the scales in balance in any dispute.

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 INDIAN JUDICIARY: FROM ACTIVISM TO RESTRAINT

Sources

BIBLIOGRAPHY

1. Andhyarujina, T.R. “Issues of Judicial Independence” Hindu, 10th September, 2009.

2. Bakshi P.M., The Constitutional Law of India, Seventh Edition, Universal Law
Publication Co. Pvt. Ltd., New Delhi, 2006
3. Jain M.P., Indian Constitutional Law, Fifth Edition, LexisNexis Butterworths Wadhwa,
Nagpur, 2006
4. Pandey J.N., Constitutional Law of India, Forty Third Edition, Central Law Agency
Allahabad,2006
5. Rai Kailash, The Constitutional Law of India, Seventh Edition, Central Law Publications
Allahabad,2008
6. Roy Aruna, Dreze Jean and Dey Nikhil, “The Right to Transparent Governance”, Combat
Law, Vol. 6, Colin Gonsalves (ed.), Issue 2, March-April 2007Austin Grainville,
Working A Democratic Constitution- A History of the Indian Experience, Oxford
University Press, New Delhi, 2007
7. Seervai H.M., Constitutional Law of India, Fourth Edition, Vol. 3, Universal Law
Publication Co. Pvt. Ltd., New Delhi, 2006
8. Singh M.P., Indian Legal and Constitutional History, Eighth Edition, Universal Law
Publication Co. Pvt. Ltd., New Delhi, 2006
9. Tyagi B. S., Judicial Activism in India, Srishti Publishers & Distributors, New Delhi,
2000

WEBLIOGRAPHY

1. http://www.ebc-india.com/lawyer/articles/71v2a3.htm
2. http://www.hardnewsmedia.com/2006/02/341
3. http://www.mainstreamweekly.net/article580.html
4. http://www.manupatra.com
5. http://www.mapsofindia.com/events/republic-day/indian-constitution-
amendment.htmlhttp://www.edrc.net/cdil.html

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