JUDICIAL ACTIVISM AT ITS BEST AND PERHAPS, ITS WORST

Submitted By: Pranav Khanna

LAW Student.

Delivering justice to a population of over two billion does not sound like and never will
be an easy task. It however, becomes increasingly difficult in a country like India. The
varied cultures, the environment, the languages and the religions of the people of this
country are as balanced as walking a tight rope; one foot wrong can send the entire
country in disarray. Seemingly overlapping powers of the administrators of the nation can
cause some serious trouble in this regard.

The Executive, the legislature and the judiciary are the three wings of the Indian
democracy. The constitution empowers them and burdens them with duties at the same
time. The legislature formulates the law, and the judiciary interprets it. Simple as it may
sound, studying the ambit of the words “formulation” and “interpretation” can actually
leave the best in the business confused. Most believe that the judiciary, under the guise of
interpreting the law, goes a step beyond, and ends up giving the country new binding law,
which is usually different from the existing one. This is called judicial activism.

The ongoing debate

The definition of "judicial activism" is an intense ongoing debate. According to Merriam-

Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of
protecting or expanding individual rights through decisions that depart from established
precedent or are independent of or in opposition to supposed constitutional or legislative
intent". According to Black's Law Dictionary, judicial activism is "a philosophy of
judicial decision-making whereby judges allow their personal views about public policy,
among other factors, to guide their decisions, usually with the suggestion that adherents
of this philosophy tend to find constitutional violations and are willing to ignore
precedent."

Conservatives tend to argue that judicial activism is the process of ignoring, or at least
selectively choosing precedent in order to hand down rulings which dramatically expand
personal freedoms. They also complain that the doctrine of stare decisis is sometimes
used to trump up the original meaning (or, in some cases, the original intent) of the text,
or that the text is given so broad a construction so as to render it almost infinitely
malleable1[1].

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To others, judicial activism implies going beyond the normal constraints applied to jurists
and the Constitution gives jurists the right to strike down any legislation or rule against
any precedent if it goes against the Constitution. Thus, ruling against majority opinion or
judicial precedent is not necessarily judicial activism unless it is active specifically in
terms of the Constitution.

Many are critical of judicial activism as an exercise of judicial power, which displaces
existing law or creates more legal uncertainty than is necessary, whether or not the ruling
has some constitutional, historical or other basis. This, it is argued, violates the doctrine
of separation of powers. Judicial activism can be considered as (and is often called)
"legislating from the bench" (i.e., promulgation of new law). Some have even gone to the
extent of calling it judicial tyranny. An accusation of judicial activism implies that the
judge is not performing his or her duty as an interpreter of the law, but is instead ruling
on the basis of personal political convictions or emotions.

Liberalists’ argume that the Living Constitution philosophy endorses any ruling, so long
as the judge can argue that his ruling helps the constitution to grow and evolve. Critics
say that this can violate a judge's sworn allegiance to uphold the constitution, because, in
effect, it encourages judges to write their own constitutions. Furthermore, the Living
Constitution leads to unpredictable rulings, making it impossible to obey the law. One
possible outcome of this confusion is the threat of frivolous lawsuits.

Critics of the Living Constitution also argue that it violates the principle of separation of
powers. They say that because the purpose of the judiciary is to interpret existing laws
and policies, any action which is not done strictly in accordance with existing law must
be activism.

Opponents of judicial activism claim it is not about liberal versus conservative at all, but
about whether a constitution should be interpreted strictly according to its text, or
whether it is an "evolving document" which requires judges to assign new meanings to its
words2[2].

A review of case laws proves that judicial activism may work towards the benefit of the
society but that is not always the case. Some judgments have been delivered with great
insight and vision but some others are based only on self conviction and belief, that such
a judgment would help the parties, without taking into consideration the repercursions on
the law or on the society at large.

JUDICIAL ACTIVISM IN INDIA

Kehavananda Bharati’s case3[3]

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This judgment is one of a kind. It came into being when six writ petitions were filed
challenging the twenty fourth, twenty fifth and the twenty ninth amendments to the
constitution. All the Judges of the bench opined that by virtue of Article 368 as amended
by the twenty-fourth Amendment, the Parliament had the power to amend any or all
provisions of Constitution, including those relating to fundamental rights. The majority
were of the view that the power of amendment under Article 368 was subject to certain
implied and inherent limitations. It was held that in the exercise of amending power, the
Parliament cannot amend the basic structure or framework of the Constitution. It was
also held that individual freedom secured to citizens was a basic feature of Constitution,
and could not be altered. The judgment also invalidated the second part of Article 31-C
introduced by twenty-fifth Amendment, which excluded jurisdiction of the Courts to
inquire whether law protected under that Article gave effect to policy of securing
directive principles mentioned therein.

This was a path breaking judgment which gave birth to the doctrine of basic structure. It
was this judgment that saved the country when Indira Gandhi sought to amend the
constitution so that the courts could not challenge the grounds of her election and to make
sure that her election could not be termed void. This case law also overruled the
proposition of law which was laid down in Golak Nath vs. State of Punjab.

In today’s time, such judgments are few and far between. The next two cases are perfect
examples of what harm judicial activism may cause.

Ashok Hurra vs Rupa Bipin Zaveri

In this particular case, the plaintiff and the defendant filed for divorce by mutual consent
after a few troubled years of marriage. However, the wife withdrew her consent before
divorce was granted. Keeping this in mind, the lower court did not grant divorce to the
husband. However, taking into consideration the fact that consent had been withdrawn
after the 18 month period prescribed under the Hindu Marriage Act, the High Court
granted divorce. The wife appealed to the Supreme Court. In the meantime, the husband
got married elsewhere and had a son. The Supreme Court held that although the husband
ought not to have married before the disposition of the appeal, irretrievable breakdown of
marriage had taken place. The parties had been suffering for 12 years and hence it would
not be right to prolong their agony. Although the court made serious remarks about the
behaviour of the husband, it was held that divorce had been granted and that the second
marriage was valid.

This Shocking and astounding judgment well and truly defeats the purpose of an appeal
to the Supreme Court. The Supreme Court accepted that the husband should not have
remarried before the disposition of the appeal but at the same time, it held the second
marriage valid. Granted that there was no possibility of reconcialiation in the marriage
with Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since the
appeal was pending in the apex court, it cannot be said that divorce had been granted with
finality. Yet the husband remarried, and yet the marriage was held to be valid by the
Supreme Court. This may become a weapon in the hands of the people wanting to get
remarried before disposition of appeals in higher courts.

Arnit Das vs. State of Bihar

A crime of murder was registered at Patna according to which one Abhishek was shot
dead. On 13.9.1998 the petitioner was arrested in connection with the said offence. A day
later the petitioner was produced before the Additional Chief Judicial Magistrate, Patna
who after recording his statement remanded him to a Juvenile home in Patna. The
petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to
protection of The Juvenile Justice Act, 1986. The petitioner's claim was disputed on
behalf of the prosecution. The A.C.J.M. directed an enquiry to be held under Section 32
of the Act. The petitioner was referred to examination by a Medical Board. On receipt of
the report of the Medical Board and on receiving such other evidence as was adduced on
behalf of the petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of
age on the date of the occurrence and therefore was not required to be tried by a Juvenile
Court. The finding was upheld by the Sessions Court in appeal and the High Court in
revision. On appeal to the Supreme Court, it was decided that the crucial date is not the
day on which the offence is committed but on the day on which the offender is brought
before a competent authority.

It was never a disputed fact as to whether the offender was a juvenile on the date of the
commission of the offence. It was hence never necessary for the Supreme Court to decide
on the issue of whether the date of the commission of the offence or the date on which the
offender is brought before a competent authority is the date on which the offender should
be a juvenile.

The Juvenile Justice Act was enacted in order to protect the interest of Juveniles, taking
into consideration the age of the person when the offence was committed. The fact that
the offender may not have been well aware of the effects of his act contributes to the
sanctity of the legislation. However, what happens in a case where an offender is arrested
30 years after the commission of the offence? Does one send him to a remand home with
other juveniles regardless of the fact that he is not of their age? Does one try him as a
regular offender regardless of the fact the offence had been committed when he was not
of age?

Irrespective of how much time elapses after the incident, the offence itself remains an
offence committed by a juvenile and the person should thus be judged according to his
age and intent at the time of the commission of the offence. The Supreme Court however,
provides no guidelines about the aforementioned issue and how this particular situation
should be handled.
A Note of Caution

In a monograph "Judicial Activism and Constitutional Democracy in India"

commended by Professor Sir William Wade, Q.C. as a "small book devoted to a
big subject", the learned author, while recording appreciation of judicial activism,
sounds a note of caution-"it is plain that the judiciary is the least competent to
function as a legislative or the administrative agency. For one thing, courts lack
the facilities to gather detailed data or to make probing enquiries. Reliance on
advocates who appear before them for data is likely to give them partisan or
inadequate information. On the other hand if courts have to rely on their own
knowledge or research, it is bound to be selective and subjective. Courts also have
no means for effectively supervising and implementing the aftermath of their
orders, schemes and mandates, since courts mandate for isolated cases, their
decrees make no allowance for the differing and varying situations which
administrators will encounter in applying the mandates to other cases. Courts have
also no method to reverse their orders if they are found unworkable or requiring
modification". Highlighting the difficulties which the courts are likely to
encounter if embarking in the fields of legislation or administration, the learned
author advises "the Supreme Court could have well left the decision- making to
the other branches of the government after directing their attention to the
problems, rather than itself entering the remedial field".

Conclusion:

This presentation is a review of various case laws, the ones mentioned above and others,
which are not in favour of public policy. There have been no subsequent over rulings of
these judgments which surpass all logic. This leads us to wonder whether judicial
activism is always good for society. It is a known fact that judicial activism has given us
some very good case laws, even led to revolutionary changes in society, but its
consistency needs to be questioned.