Topic of assignment- The Role of Judicial Activism in

Implementation and Promotion of Constitutional Laws

Submitted by Submitted to

Sachin verma Dr Kalindri Maam

Introduction
Today judicial activism has touched almost each and every aspect of life ranges from human
rights issues to maintenance of public roads! The Judicial Activism as innovative, dynamic and
lawmaking role of the Court with a forward-looking attitude discarding reliance on old cases,
and also mechanical, conservative and static views. It is the creative thought process through
which the court displays vigour, enterprise, initiative pulsating with the urge of creating new and
refined principles of law. It means when the Court plays a positive role the court is said to be
exhibiting the “Judicial Activism”.

There are different opinions about the origin of doctrine of Judicial Activism. Some scholars
like Justice M.N. Roy believe that it is born in 1804 when Chief Justice Marshall, the greatest
judge of English-speaking world, decided Marbury V Madison. But P.P. Vijayan differs with
saying that Marbury V Madison is a case of Judicial Review and not of a Judicial Activism.
However he opines that the judicial activism has a hoary past in Dr. Bonham’s case in which
Justice Coke derived doctrine of natural justice in the year 1610. In this context Dr. Suresh Mane
observed that “As a result English Courts by its interpretation role extended the necessary
protection; but truly, the movement of judicial activism got momentum on the soil of America
under the shadow of first ever written Constitution.”

The role of the judiciary in a modern legal system is immense social significance.... Law is in a
constant process of flux and development, and though much of this development is due to the
enactment of the legislature, the judges and the courts have an essential role to play in
developing the law and adopting it to the needs of the Society. 1 Paul Mahoney in offering his
own definition of the concept submits that judicial activism exists where the judges modified the
law from what was previously stated to be the existing law which often leads to substituting their
own decisions from that of the elected representatives of the people. 2 This definition would
consider invalid actions or decisions of the judges given for the purpose of seeking the justice in
a particular or to interpret the law in such a way as to conform to social realities thereby not
permitting the correction of mistakes in the previous jurisprudence of law. 3 Famous Author
Subhash Kashyap says, “What has come to be called hyper activism of the judiciary draws its

1
Cardozo Benjamin N, The Nature of the Judicial Process, Universal Law Publishing Co.Pvt.Ltd., Delhi, (2004)
2
Paul Mahoney, “Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides
of the Same Coin” (1990) 11, Hum. Rts. L.J. 57, 58
3
Paul Mahoney, “Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides
of the Same Coin” (1990) 11, Hum. Rts. L.J. 57, 58
strength, Relevance and legitimacy from the inactivity, incompetence, disregard of law and
constitution, criminal negligence, corruption, greed for power and money, utter indiscipline and
lack of character and integrity among the leaders, ministers and administrators. As a result of this
a vacuum was created in which the governmental machinery seemed to be totally helpless with
the corruption in legislative and executive fields. The vacuum was filled in by the judiciary”. A
contrary view has also been offered that the judicial activism becomes the most valuable
instrument when the legislative machinery comes to a halt in a case. 4Thus, where legislative
machinery could not apply to a given situation; judicial activism appears to be the most valuable
instrument. In other words, judges should not be scared of adjudicating a particular case because
the law has not been enacted by the legislature to cover the situation. This therefore justifies the
application of judicial creativity in the matter.

Judicial Activism in India

The significant feature of Indian Constitution is partial separation of powers. -The doctrine of
separation of powers was propounded by the French Jurist, Montesquieu. It is partly adopted tit
India since the executive powers are vested in the president, Legislative powers tit the Parliament
and the judicial powers in the Supreme Court and subordinate courts. The role of separation of
powers in India is simple. The three organs of the Government viz. the Executive, Legislature
and the Judiciary are not independently independent but inter-dependently independent. (The
executive encroaches upon judicial power, while appointing the judges of Supreme Court and
High Courts. Similarly the Judiciary, by its review power examines the law passed by file
legislature parliament and the legislature also, intervenes in respect of impeachment of the
president). As stated earlier, the Judicial Activism tit India can he witnessed with reference to the
review power of the Supreme Court and High Court under Art.32and 226 of the Constitution
particularly in public interest litigation cases.

The Supreme Court played crucial role in formulating several principles in public interest
litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas
Leak case. Public Trust Doctrine in Kamalnath Case 5etc. Further, the Supreme Court, gave
variety of guidelines in various cases of public interest litigation. eg: Ratlam Municipality Case,
4
Thijmen Koopmans, “The Roots of Judicial Activism in Protecting Human Rights: The European Dimension,
Studies In Honor Of Gérard J. Wiarda 326 (F Matscher& H. Petzold Eds., 1988)
5
AIR1998 I SCC .388
Oleum Gas Leak Case, Ganga Pollution Case etc. In India the concept originated after a public
interest litigation was filed before the supreme court when the then Chief justice P N Bhagwati
took an unknown case directly from the public who did not had any involvement in the case but
it was just for the public welfare and also was related to public in large.

Justice P N Bhagwati has said that “One basic and fundamental question that confronts every
democracy, run by a rule of law is, what is the role or function of a judge. Is it the function of a
judge merely to declare law as it exists-or to make law? And this question is very important, for
on it depends the scope of judicial activism. The anglo-saxon tradition persists in the assertion
that a judge does not make law; he merely interprets. Law is existing and eminent; the judge
merely finds it. He merely reflects what the legislature has said. This is the photographic theory
of the judicial function”. It is for the judge to give meaning to what the legislature has said and it
is this process of interpretation which constitutes the most creative and thrilling function of a
judge.

In the initial years of 1950-67, the Supreme Court adopted the attitude of judicial restraint in
which the court gave a strict and literal interpretation of the constitution. Judicial review in India
was provided for expressly in the Constitution. Article 13, clause (1) says that all laws in force in
the territory of India immediately before the commencement of the Constitution, in so far as they
are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such
inconsistency, be void. Clause (2) of that article further says that the State shall not make any
law that takes away or abridges any of the fundamental rights and any law made in contravention
of the above mandate shall, to the extent of the contravention, be void. The Constitution also
divides the legislative power between the Centre and the states and forbids either of them to
encroach upon the power given to the other. Who is to decide whether a legislature or an
executive has acted in excess of its powers or in contravention of any of the restrictions imposed
by the Constitution on its power? Obviously, such function was assigned to the courts.

The Constitution was criticized by some members of the Constituent Assembly for being a
potential lawyers’ paradise. Dr. B.R. Ambedkar defended the provisions of judicial review as
being absolutely necessary and rejected the above criticism. According to him, the provisions for
judicial review and particularly for the writ jurisdiction that gave quick relief against the
abridgement of fundamental rights constituted the heart of the Constitution, the very soul of it.
The nature and scope of judicial review was first examined by the Supreme Court in A.K.
Gopalan case where it accepted the principle of judicial subordination to legislative wisdom. But
on the whole it limited itself and exercised judicial restraint. The second phase unfolded with the
Golaknath case which resulted in on open conflict between the judiciary and legislature. The
parliament asserted its supremacy and the Supreme Court asserted its power of Judicial which
resulted in a series of constitutional amendments in which the parliament tried to limit the power
of Judicial review.

In the Emergency of 1975-77, the judiciary was made subservient to the legislature and
executive. In Golaknath case, the Supreme Court gave an unprecedented judgment, which was
clearly a case of Judicial Activism. The reason of imposing emergency was the decision of
Allahabad High Court setting aside the election of Prime Minister Indira Gandhi to the Lok
Sabha. The 42nd constitutional Amendment Act6 was also passed which put new limitations on
the judiciary. After the emergency the 44th constitutional Act 7 was passed which restored the
judiciary’s position as it had existed before the emergency. In Minerva mills case the Supreme
Court declared judicial review as part of the basic structure. Since 1980’s we saw the emergence
of Judicial Activism as a powerful tool in Indian Polity. Thus now we find that the Supreme
Court is no longer exercising judicial restraint. But in fact, it has taken up Judicial Activism so
much. A court giving new meaning to a provision so as to suit the changing social or economic
conditions or expanding the horizons of the right of the individual is said to be an activist court.
Thus has given birth to Judicial Activism. In the words of Justice J. S. Varma “The role of the
Judiciary in interpreting existing laws according to the needs of the times and filling in the gaps
appears to be the true meaning of Judicial Activism.8

Present scenario of Judicial activism

Of late the Indian judiciary appears to have become overactive, and is often accused of judicial
overreach. This accusation was usually leveled by politicians or others outside the judicial
system, until in 2008 it was leveled by Justice A.K. Mathurand the writer (as Judges of the
Supreme Court) in Divisional Manager, Aravalli Golf Course v. Chander Haas. The Indian

6
Constitutional Amendment act, 1976
7
Constitutional Amendment Act, 1978
8
UDICIAL ACTIVISM IN INDIA -An Overview (By Arjun. M, Administrative Assistant, Centre for Public Policy
Research)
Supreme Court surely came a long way since Anwar Ali Sarkar Vs. State of West Bengal9 and
A.K. Gopalan Vs. State of Madras where the judiciary refused to indulge in making judicial
policy and instead exercised judicial restraint keeping in mind the Doctrine of Separation of
Powers. However, the pendulum later swung to the opposite direction. Thus, in Maneka Gandhi
vs. Union of India10the 7 Judge Bench of the Indian Supreme Court, while overruling the 5
Judge Bench decision in A.K. Gopalan’s case introduced the due process clause in the Indian
Constitution by a judicial pronouncement.

In S. P. Gupta Vs. Union of India 11 , it was held that: “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.” Similarly, in the case of Supreme
Court Advocates on Record Vs. Union of India,12 it was held that: “It belongs to the Judiciary to
ascertain the meaning of the constitutional provisions and the laws enacted by the Legislature.”
This was the advent of an over active judiciary which assumed upon itself the need to adjudicate
even where it was not perceived to be warranted. Although Article 50 13 of the Indian
Constitution expressly provides for Separation of Powers between the different organs of the
State, but time and again, the Indian Supreme Court has taken on itself the task of filling in the
gaps created by the Legislature and the Executive to do justice While doing so, the judiciary has
been often criticized for overstepping its limits.

In the case of Vineet Narain vs. Union of India 14, the Supreme Court had invented a new writ
called “continuing mandamus” where it wanted to monitor the investigating agencies which were
guilty of inaction to proceed against persons holding high offices in the executive who had
committed offences. Furthermore, the Court created by its judicial order a body called the
Central Vigilance Commission, which was not contemplated by the statute (the Delhi Special
Police Establishment Act, 1946), for supervising the functioning of a statutory body, the Central
Bureau of Investigation. The Court also laid down a number of guidelines for the appointments

9
AIR 1952 SC 75
10
AIR 1978 SC 593
11
AIR 1982 SC 149
12
1993 4 SCC 44
13
Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State
14
1998 Cri. L. J. 1208
of chiefs of investigating agencies like Central Bureau of Investigation, Central Vigilance
Commission and the Enforcement Directorate; apart from the Chiefs of the State Police. These
guidelines, apart from being in relation to appointment, were also with regard to their status,
transfer and tenure, etc. The question arises whether this was legitimate exercise of judicial
power.

In the case of Indian Council for Enviro-Legal Action Vs. Union of India 15, the Court passed various
orders especially directed towards the States requiring them to submit management plans to control
pollution to both, the Central Government as well as the Court. Here, the Court held that it was only
discharging its judicial functions in ensuring that it remedies the errors of the executive.

In the case of M. C. Mehta vs. Union of India 16, where a writ was filed with regard to the vehicular
pollution in Delhi, the Supreme Court had passed directions for the phasing out of diesel buses and for the
conversion to CNG. When these directions were not complied with due to shortage in supply of CNG, the
Court held that orders and directions of the Court could not be nullified or modified by State or Central
governments. This was a case where, despite several directions being given by the Supreme Court, the
government did not act speedily in responding to the Order.

The Court has prescribed norms regarding the running of the prisons and mental intuitions, 17instructed the
Government to implement labor laws at construction sites, 18 recognized admissions in medical colleges
throughout India laying down examination schedules, 19 prescribing hawking zones in metropolitan
cities,20 laid down the guidelines for the retail outlets for essential commodities such as LPG, 21resolving
disputes between public undertakings of Central Government 22,directed the authorities like C.B.I to
conduct and complete investigation expeditiously in cases of national importance, directed the noxious
factories to restart on the technical reports on safety measures, 23 prescribed the poverty limits for the low
income urban housing24 or set up an expert panel headed by a retired Supreme Court to study the
vehicular pollution level25etc. In these decisions the court did legislate, but in the process was criticized
for having infringed upon the executive domain. With due respect to these and other decisions it has to be
15
(1996) 5 SCC 281
16
(2001) 3 SCC 763
17
SheelaBarsevs. State of Maharashtra, (1983) 2 SCC 96
18
Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538
19
Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420
20
Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528
21
Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382
22
ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision has since been reversed)
23
M. C. Mehta v. Union of India, (1986) 2 SCC 176
24
Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520
25
M. C. Mehta v. Union of India, (1991) 2 SCC 353
said that many judges often forget that the judiciary cannot solve all problems in the country. Suppose the
Court passes an order that from tomorrow poverty in India, or unemployment, or malnutrition etc. are
abolished. Will these orders mean anything? Can they really be implemented? India is a poor country
with limited financial resources. Moreover, many such orders e.g. for interlinking rivers vide In re
Networking of Rivers (2012) 4 S.C.C. 51 raise great technical and administrative problems, and are really
in the domain of the legislature or executive. The most recent case on judicial activism was the case of
Aruna Ramchandra Shanbaug Vs. Union of India and Others26 Aruna Shanbaug, a nurse in 1973, while
working at a Hospital at Mumbai, was sexually assaulted and has been in a permanent vegetative
state since the assault. In 2011, after she had been in this status for 37 years, the Supreme Court
of India heard the petition to the plea for euthanasia filed by a social activist claiming to be
Aruna‟s friend. The Court turned down the petition, but in its landmark judgment (authored by
the writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in
permanently vegetative state, subject to approval by the High Court.

Trends in Judicial Restraint

Rising judicial activism was hindering governance in the country and impacting growth in Asia's
third largest economy, finance minister P Chidambaram said. "Nowhere in the world would we
see ideal balance between legislature and judiciary. But in India, we have seen intensifying
judicial activism, which had impacted the balance of governance," Chidambaram said at The
Economic Times Awards for Corporate Excellence "The balance in India has swung away from
the executive and the parliament," he said. "The judiciary has taken an upper hand. Unless the
executive has a final say, we cannot have sustained high growth rate. Countries like China,
Brazil and Mexico, with a stronger executive authority, have exhibited better growth trajectory,"
he argued "Judicial institutions cannot take over governance. We must rediscover the balance
between our institutions and we have to reassert the balance between reforms, development and
institutions," Chidambaram said. Sounding a note of caution on judicial activism, The President
of India Mr. Pranab Mukherjee said judicial pronouncements must respect the boundaries that
separate the legislature, executive and judiciary. Making his first visit outside the national capital
after assuming the office of President on July 25, Mukherjee also said that everything must be
done to protect the independence of judiciary from any form of encroachment. Addressing the
valedictory function of the 150th anniversary celebrations of the Madras High Court, he urged
26
JT 2011 (3) SC 300
judiciary to keep reinventing itself through a process of introspection and self-correction at the
same time. In his address, Mukherjee touched upon various issues that dominate legal discourse
including judicial accountability and the appointment of judges. The President referred to
judicial activism and said the judges through innovation and activism have contributed
enormously to expanding the frontiers of justice and providing access to the poorest of the
poor.©27 The Supreme Court in an order has said that the judiciary must refrain from
encroaching on legislative and executive domain otherwise it will boomerang in the form of
political class stepping to clip their wings. A bench comprising Justice AK Mathur and Justice
Markandey Katju said, "If the judiciary does not exercise restraint and over-stretches its limit
there is bound to be reaction from politicians and others. The politicians will then step in and
curtail the powers or even independence of the judiciary. The judiciary should, therefore, confine
itself to its proper sphere, realizing that in a democracy many matters and controversies are best
resolved in a non-judicial setting." The court said that justification often given for judicial
encroachment into the domain of the executive or legislature is that the other two organs are not
doing their jobs properly. Even assuming this is so, the same allegation can then be made against
the judiciary too because there are cases pending in courts for half-a-century, bench said. If they
are not discharging their assigned duties, the remedy is not judicial interference as it will violate
delicate balance of power enshrined in the constitution, remarked the court. 28 There are many
examples where judiciary had encroached upon the turf which was unwarranted. The Jagdambika Pal case
of 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 are the two glaring
examples of deviations from the clearly provided constitutional scheme of separation of powers, said
bench. There is broad (though not absolute) separation of powers in the Indian Constitution vide
Divisional Manager, Aravali Golf Course vs. Chander Haas, 2008. The Constitution of India did not
provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs.
Thus, the need arises for the judiciary to lay down its own limitations. Some people say that the judiciary
can enter into the domain of the executive or legislature because these organs are not functioning
properly. But then it can also be said that the judiciary, too, is not functioning properly, there is great
delay in deciding cases, corruption in a section of the judiciary, etc. Should then the legislature or
executive take over the judiciary’s function?

27
Pranab Mukherjee's note of caution on judicial activism PTI Sep 8, 2012, 07.33PM IST
28
SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec 11, 2007, 12.49am IST
One of the examples of judicial restraint is the case of State of Rajasthan Vs. Union of India29 ,
in which the court rejected the petition on the ground that it involved a political question and
therefore the court would not go into the matter. In S.R. Bommai Vs. Union of India30 , the
judges said that there are certain situations where the political element dominates and no judicial
review is possible. The exercise of power under Art.356 was a political question and therefore
the judiciary should not interfere. Ahmadi J. said that it was difficult to evolve judicially
manageable norms to scrutinize the political decisions and if the courts do it then it would be
entering the political thicket and questioning the political wisdom, which the court must
avoid.31In Almitra H. Patel Vs. Union of India32 , where the issue was whether directions should
be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it
was not for the Supreme Court to direct them as to how to carry out their most basic functions
and resolve their difficulties, and that the Court could only direct the authorities to carry out their
duties in accordance with what has been assigned to them by law. Also, in Union of India Vs.
Kishan K. Sharma,33 when the High Court issued a Mandamus to the Government to pay a
particular scale to its officers, the Supreme Court laying down the boundaries of judicial activism
in general held that such Mandamus would not be permissible as fixation of salaries was an
administrative decision. Similarly, creation of a post is an administrative or legislative functions,
and cannot be done by the court vide Divisional Manager, Aravali Golf Course (supra)

Conclusion

However, the governance cannot be replaced by the judicial institutions. There is a need to
discover a balance between judicial and executive institutions. We need to reassert the balance
between reforms, development and institutions. Judicial activism should not be used to lead to
the Constitutional principles of separation of power getting eroded. Our Hon’ble Judges should
not cross their limits in the name of judicial activism and not to try to take over the functions of
other organs of administration. Judicial pronouncements must respect the boundaries that
29
AIR 1977 SC 1361
30
(1994) 3 SCC 1
31
“Judicial Activism v. Judicial Self-Restraint” athttp://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/
as last on 10 July, 2011
32
(2000) 2 SCC 679
33
(2004) 5 SCC 518
separate the Legislature, Executive and Judiciary. The Judicial Activism has touched almost
every aspect of life in the present times. Be it the case of bonded labor, illegal detentions, torture
and maltreatment of women, the implementation of various provisions of the constitution,
environmental problems, health, sports etc. the courts took cognizance of each case and laid
down various judgments to protect the basic human rights of each and every member of society.
However, the politicians and some constitutional experts criticize judicial activism and on the
other hand the lawyers and public has welcomed it with warm hands. It is important to note that
judicial Activism has so many merits but it has certain demerits. Here it is important to note that
we cannot lead the government on judicial basis only. Frequent confrontation between the
Legislature, Executive and the judiciary will also damage our well-established democratic
system of governance. The members of every institution sworn to uphold the constitution, which
alone is supreme. Both sides will maintain and respect the line of demarcation of power under
the constitution and will not allow a conflict to develop between them. By evolving the doctrine
of Basic Structure of the Constitution, the Hon’ble Supreme Court of India has limited the power
of Parliament to amend the constitution. The court’s increased activism has been good and
contributed a lot for India’s democracy. The expensive, technical justice now becomes
inexpensive and non-technical through the growth of Public Interest Litigations. The important
question today is not whether the Supreme Court could activate its judicial role, but to what
extent the concepts of Judicial Activism and creativity are exercised. A balance between the
powers of Judiciary, Legislature and executive is necessary to carry the nation on the true path of
democracy