JUDICIAL ACTIVISM : AN INTRODUCTION

The success of a democracy, especially one based on a federal

system, depends largely on an impartial and independent judiciary
endowed with sufficient powers to administer justice. The framers of
the Indian Constitution, therefore, thought it fit to entrust the
judiciary with vast powers. The trinity of an independent judiciary,
independent constitutional review, and the supremacy of law operate
together for the working of a constitutional government.
The Trinity Legislative, Judiciary and the Executive-is an
accomplished phenomena, Harmonious existence is a theory.
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:
Each organ should be independent of another.
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. Two prominent constitutional functionaries
recently expressed their concern over the role played by the Indian
Judiciary. Judiciary is not an overriding authority and no organ has
the right to emphasize powers of another, These assertions have, in
the wake of several apex court rulings, striking down executive
decisions and parliamentary legislations.

DEFINING JUDICIAL ACTIVISM

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."
Activism means a policy of vigorous action of a philosophy or a
creative will1 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 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.
Judicial activism describes judicial ruling suspected of being based
on personal or political considerations rather than on existing law.
The question of judicial activism is closely related to
constitutional, statutory construction, and separation of powers.

ORIGIN OF JUDICIAL ACTIVISM

The concept of judicial activism which is another name for
innovative interpretation was not of the recent past; it was born in
1804 when Chief Justice Marshall, the greatest Judge of the Englishspeaking world, decided Marbury v. Madison1. He observed that
the Constitution was the fundamental and paramount law of the
nation and "it is for the court to say what the law is". He concluded
that the particular phraseology of the Constitution of the United
States confirms and strengthens the principle supposed to be
essential to all written Constitutions. That a law repugnant to the
Constitution is void and that the courts as well as other departments
are bound by that instrument. If there was conflict between a law
made by the Congress and the provisions in the Constitution, it was
the duty of the court to enforce the Constitution and ignore the law.
The twin concepts of judicial review and judicial activism were thus
born.
Some proponents of a stronger judiciary argue that the judiciary
helps provide checks and balances and should grant itself an
expanded role to counterbalance the effects of transient majoritarian,
i.e. there should be an increase in the powers of a branch of
government which is not directly subject to the electorate, so that the
majority cannot dominate or oppress any particular minority through
its elective powers. Moreover, they argue that the judiciary strikes
down both elected and unelected official action, that in some
instances acts of legislative bodies reflect the view the transient
majority may have had at the moment of passage and not necessarily
the view the same legislative body may have at the time the
legislation is struck down, that the judges that are appointed are
usually appointed by previously elected executive officials so that
their philosophy should reflect that of those who nominated them,
that an independent judiciary is a great asset to civil society since
corporations and the wealthy are unable to dictate their version of

constitutional interpretation with threat of stopping political

donations.

JUDICIAL ACTIVISM IN INDIA

During the last two decades, judicial activism has played a major
role in protecting the rights and freedoms of individuals, as
guaranteed under the constitution. After the landmark decision in the
Menka Gandhis case, courts have assumed an activist posture and
come forward to the rescue of aggrieved citizens. In a number of
cases, subsequent to the Menka Gandhis case, the judiciary
interpreted the constitutional provision in its wider possible meaning
to protect basic civil liberties and fundamental rights. During this
period, our judiciary developed the concept of social action litigation
and public interest litigation by discarding the traditional and selfimposed limitations on its own jurisdiction. In 1975, Justice VR
Krishna Iyer for the first time in the Bar Councils case advocated
the liberal interpretation of locus standi in public interest litigation.
He observed that in a developing country like India, public-oriented
litigation better fulfils the rule of law if it is to run close to the rule
of life. The concept of public interest litigation took a clearer shape
through the remarkable judgment in what is popularly known as the
case of the judges transfer. In this case, Justice Bhagwati said
that the traditional rule was of ancient vintage and arose during an
era when private law dominated the scene. He observed that there is
an urgent need to innovate new methods and devise new strategies
for the purpose of providing access to justice to the large masses of
people who are denied their human rights and to whom freedom and
liberty have no meaning. The courts have a duty to utilize the
initiative and zeal of public-minded persons and organizations by
allowing them to act for general or group interest.
Justice Bhagwati further developed the idea of social justice through
courts in another case in which he observed, The time has now
come when the courts must become the court for the poor and
struggling masses of this country. They must shed their character as
upholder of the established order and the status quo. They must be
sensitized to the need of doing justice to the large masses of people
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to whom justice has been denied by a cruel and heartless society for
generations. It is through public interest litigation that problems of
poor are now coming to the forefront and the entire theatre of the
law is changing. It holds out great possibilities for the future.
The Supreme Court initiated this case by converting a letter written
by the Peoples Union for Democratic Rights. The letter, addressed
to one of Supreme Court judges, was based upon a report made by a
team of three social scientists who were commissioned by the
Peoples Union for Democratic Rights for the purpose of
investigating and inquiring into the condition under which workmen
were employed in the construction work of various projects
connected with the Asian Games. In this case, the Supreme Court
came down heavily against critics of public interest litigation.
It was observed that those who were decrying public interest
litigations, did not seem to realize that the courts are not meant only
for the rich and the well-to-do, for the landlord and the gentry, for
the business magnate and the industrial tycoon but they exist also for
the poor and the downtrodden, the have-nots and the handicapped
and the half-hungry millions. Public interest litigation and judicial
activism has touched almost every aspect of life. Be it the case of
bonded labour, rehabilitation of freed bonded labour, payment of
minimum wages, protection of pavement and slum dwellers, juvenile
offenders, child labour, illegal detentions, torture and maltreatment
of woman in police lock-up, the implementation of various
provisions of the constitution, environment problems, 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.
No doubt law regulates the society, but some time society also
regulates law. Changing aspirations of people also affects law.
Constitutions, courts and other parts of the judicial system are made
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for common people. Realising the fact that in spite of all

constitutional provisions and other enactments, socio-economic
justice remained a distant dream for the poor and down-trodden,
Justice Bhagwati invites judges to use their power to further the
cause of social justice.
In his work Social Action Litigation: The Indian Express Justic
e Bhagwati observed
Today, we find that in third world countries, there are large number
of groups which are being subjected to exploitation, injustice and
even violence. In this climate of conflict and injustice, judges have
to play a positive role and they cannot content themselves by
invoking the doctrine of self-restraint and passive interpretation. The
judges in India have fortunately a most potent judicial power in their
hands, namely the power of judicial review. The judiciary has to play
a vital and important role not only in preventing the remedying
abuse
and
misuse
of
power
but
also
in
eliminating exploitation and injustice.

CONSTTUTIONAL POSITION
The Constitution provides for sufficient provisions to maintain the
theory of Separation of Powers. Article 50 prescribes separation of
the Judiciary from the Executive. Articles 121 and 211 forbid the
legislature from discussing the conduct of any judge in discharge of
his duties. Articles 122 and 212 prohibit the courts from sitting in
judgement over the internal proceedings of the legislature. Article
105 (2) and 194(2)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
Montesquieus 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 Constitution.
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 Shukla,
popularly known as the Habeas Corpus case was decided and was a
blow to the civil liberties in India. The suspension of Article 21
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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 V. JUDICIAL RESTRAINT

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 Sometimes this
Activism has the potential to transcend the borders of Judicial
Review and turn into populism and excessivism.
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.
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.
Following are the reasons for justifying the law making of the
Judiciary :
Judges are fit candidates to make law since the rational
dialectic comes naturally to common law judge

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 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.
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.
A great strength of the Judiciary in law making was that it is
not elected and so not beholden to vote banks.
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.

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TRANSGRESSING THE BOUNDRIES

This intolerance to the abuse of Judicial Activism had long been
cumulating. The Indian Courts, apparently, have forgotten their place
in the Constitutional arrangement. They have flagrantly breached the
principle of Separation of Powers. As pointed out by Hon'ble Mr.
Justice J. S. Verma, the former CJI, in his Dr. K.L. Dubey
Lecture the Judiciary has intervened to question a 'mysterious car'
racing down the Tughlaq Road in Delhi, allotment of a particular
bungalow to a Judge, specific bungalows for the Judges, pool,
monkeys capering in colonies, stray cattle on the streets, clearing
public conveniences, levying congestion charges at peak hours at
airports with heavy traffic, etc. under the threat of use of contempt
power to enforce compliance of its orders. Recently, the Courts have
apparently, if not clearly, strayed into the executive domain or in
matters of policy. use and misuse of ambulances, requirements for
establishing a world class burns ward in the hospital, the kind of air
Delhi ties breathe, begging in public, the use of sub-ways, the nature
of buses we board, the legality of constructions in Delhi, identifying
the buildings to be demolished, the size of speed-breakers on roads,
auto-rickshaw over-charging, growing frequency of road accidents
and enhancing of road fines etc.

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ISSUES AND CONCERNS

The following are the main issues or areas of concern with an
activist Judiciary 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?
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.
Judicial Activism could be used by the current day political
establishments to get their interests protected. And thus there
may be misuse of the Judicial Process.

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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 makes 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
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
thats 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.
The second question that arises is whether such legislation by the
Court is desirable?- this can be answered in context with Separation
of Powers Doctrine, 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. Vishakhas
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case, where guidelines against 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. 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?
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.

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SEPERATION OF POWERS
Separation of Powers doctrine as envisaged by Montesquieu has
been held as one of the basic features of our Constitution. There
could be five categories of Judicial Action which could be further
categorised into Activism and Excessivism Minimal Judicial action and literal interpretation : 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.
Creative or purpose interpretation : for instance expanding
the meaning of certain terms.
The Oversight Function over the Executive : Executive
action or malfunction, Filling in gaps and exercising oversight
over the executive inaction.
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.
Creative interpretation which amounts to rewriting the
Constitution.
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
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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.
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 clearlyThose 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.
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 True Constitution, although makes separate provisions for
three organs of the state, does not place them in watertight
compartments.
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 The Constitution by virtue of Article 142 gives extensive

powers to the Supreme Court in exercise of its jurisdiction to
pass any decrees or make any orders for carrying out justice.
As Justice Vivian Bose has described this power granted by
Article 142 as the flaming sword in an elegant proseWe 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. 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. 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.

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INFLUENCE BY POLITICAL ESTABLISHMENTS

A judicial decision either stigmatises or legitimises a decision of the
legislature or the executive. 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.
The purpose is 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.

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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 10 th 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. Thats 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 an important tool to keep a check on the fact that

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the trust that the framers of the Constitution have put in the Judiciary
of the country, is respected and is maintained with responsibility.
Justice Y.K Sabharwal said in an interview
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
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. And instead of accusing
Judiciary of Over reach, a mechanism to concretise such guidelines
into legislations actively, should be devised. The 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 quoting a few lines 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

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BIBLIOGRAPHY

PRIMARY SOURCE
S.P.Sathe , book on Judicial activism
Fali.S.Nariman, Before Memory Fades-An Autobiography
Wikipedia, the free encyclopedia Judicial Activism
Yojna magzine

SECONDARY SOURCE
Satyabrata Sinha, Judicial Activism: Its Evolution and
Growth
P.P.Rao, Judicial Activism Its Positive and Negative Aspects
Prof D Banerjia , Judicial Activism-Dimensions and Directions
DR K.N Katju Memorial Lecture on Separation of Powers
and Judicial Activism in India

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