CONSTITUTIONALITY OF JUDICIAL ACTIVISM

CONSTITUTIONALITY OF JUDICIAL ACTIVISM INTRODUCTION

Judiciary is said to be the weakest organ of the democracy. One of the reasons for this type of believes is because it has neither the power of purse nor a sword. It simply functions on the faith of people. The legitimacy of its decisions is drawn from the public faith. In this modern time when the function of government has increased thousand times, people now expect from government to take care of it from cradle to grave. The function of judiciary is also bound to increase. Law cannot afford to be static and so the judiciary. The purpose of giving justice cannot be solved by simply interpreting law in modern times. Law should be interpreted in such a way so as to satisfy needs of our society. In a very recent judgment, Delhi High Court legitimated the marriage of a 17 year girl with her boyfriend, asserting that no law in India prohibits love marriage and the girl would not have been safe at her parental home. The Court kept in mind the atrocities done with the couples who run away from their home in love. If the goal would have been only to interpret the law the Court would have easily invalidated the marriage on the ground that girl was not an adult but that would not have served the purpose. Court should see what is in the best interest of the society. This is the basis of Judicial Activism. Court is undoubtly transgressing its limit but they are compelled to do so. This paper attempts to find the legitimacy of this Judicial Activism in India. No wonder, the judiciary gets legitimacy from the public. But the question is whether public is competent to justify the decision of Courts. In common law system law is very complicated. Even lawyers at times find difficulty in understanding basis of many decisions. Further, loads of legislations and complicated procedure. All these things are hindrance in getting a proper criticism of judicial decisions. However, through media and modern techniques people are getting required informations to view a particular decision from independent point of view. But that is not enough. Finally, the question of accountability of judiciary is also an important area for discussion. Just like other two organs of the Government judiciary should also be made accountable; to prevent it from becoming arbitrary because power corrupts and absolute power corrupts absolutely Judiciary should be

CONSTITUTIONALITY OF JUDICIAL ACTIVISM accountable to the public but its independence and integrity should not be touched. This may put the process of delivering justice in danger.

METHODOLOGY
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The methodology adopted in this project work is both Doctrinal and Secondary Electronic research. The project involves theoretical study of the status of judicial activism in India and its legitimacy.

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_________________________________ CHAPTER-I

MEANING OF JUDICIAL ACTIVISM ___________________________________________________________

Judicial Activism in most simple terms can be defined as a step forward to judicial review. Judicial review means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution.1 In fact the term Judicial Activism is so vague that it is very difficult to carve out any precise definition of it. In the third International Conference of Appellate Judges held in New Delhi, in 1984, some of the Judges confessed that they do not clearly understand what is meant by judicial activism.
2

From a critical point of view, Judicial Activism is

nothing but exceeding the constitutional brief of interpreting and applying the law as it is, and taking over executive and legislative functions in violation of the constitutional scheme of the separation of powers.3 In spite of its vagueness, judicial activism has been defined by several scholars and jurists. Judicial activism as defined by Black Law Dictionary4 as a philosophy of judicial decision making where by judges allow there personal views about public policy, among other factors, to guide their decisions, usu. with the suggestions that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedents. Legal scholars like Cass Sunstein and Paul Gewitz have defined activism as any judicial decision to strike down legislative acts.5 But this definition can be criticized on the basis that it is attach with legislative acts only. Further it can also be argued that striking down a legislative act is activism only when done on the basis of judicial bias or based on a
1 2 3

Sathe S.P., Judicial Activism In India,( Oxford University Press,2002) Bhatacharjee A.M.J., Judicial Activism And The World-Judges Conference, ( 1984) 3 SCC (J) 1,p.5.

Sawant P.B., Judicial Activism: Trends And Prospects in Kashyap C. Subash ,Judicial Activism And Lokpal ( Uppal Publishing House,1997)
4 5

Ed. By Garner A. Bryan, Blacks Law Dictionary ( West Group Publication, 7th ed.,2002) Accessed from http://en.wikipedia.org/wiki/Judicial_activism on 21.02.2007 at 3pm

CONSTITUTIONALITY OF JUDICIAL ACTIVISM constitutional theory. J.S.Verma, the former Chief Justice of India, defines Judicial Activism as the process by which new juristic principles are evolved to update the existing law, to bring it in conformity with the current needs of the society, and, thereby, to sub serve the constitutional purpose of advancing public interest under the Rule of Law.6 Undoubtly this definition gives a clear picture of the judicial activism from a jurist point of view, but the present trend of judicial activism also defies this definition. Many a time in recent past judges in the name of enforcing rule of law has tried to enforce rule of judges. Judicial Activism can be best described as creative interpretation of law to meet the requirements of justice.

Verma J.S., New Dimensions of Justice ( Universal Law Publishing Co. Pvt. Ltd., 2000 Ed.)

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___________________________________________________________ CHAPTER-II REASONS FOR THE GROWTH OF JUDICIAL ACTIVISM

While dealing with the scope of judicial activism J.S.Verma, the former Chief Justice of India and also former Chairman of National Human Rights Commission, deals with the question of the need of judicial activism. He explains that the primary cause of judicial activism is the inaction of the authorities. However, the exercise being for public good, it generally has public support. Most of the jurists agree that judicial intervention is increasing since legislature and executive are not performing their work properly. A survey of public interest petitions shows that people have gone to Courts because there was no means available. The governments are no longer responsive to their protests. Even if a government is performing efficiently, judicial activism is necessary to protect the rights of powerless minorities.7Judicial Activism is a delicate exercise involving creativity. Great skill and dexterity is required for innovation. Anthony Lewis, has observed that basic reason for the growth of Judicial Activism, is change in the outlook of judges and the function they perform.8 The reasons given in the analysis made therein, are; (a) the judges realize that there is vacuum since the Parliament is virtually under the control of executive when it was supposed to correct any Governmental injustice to individual (b) the modern legislation is loosely drafted and delegates large powers to the Government which tends often to be arbitrary in its exercise. (c) the new generation of judges think of law not as fixed rules but as a set of values designed above all to protect democracy and human rights. The transgressing of borders laid down by the doctrine of separation of powers by the judiciary is because of the peoples perception that judicial intervention is the only feasible correctional remedy available. It is primarily this perception of the people which brings the acceptance of judicial activism in India as the pragmatic
7 8

Sathe S.P., Judicial Activism In India,( Oxford University Press, 2002) Judges In Britain Create A flutter, Times of India,( Bombay Ed., dated 7 November 1995)

CONSTITUTIONALITY OF JUDICIAL ACTIVISM means of realizing the full promise given by the guarantee of Fundamental Rights and the mandate of the Directive Principles in the Constitution of India.9 The basic reason for the growth of judicial activism in India is the tendency of Courts to control the functioning of Government, when it exceeds its power and to protect any abuse or misuse of power by government agencies. It is inevitable reaction to check misuse of public power. Classic example of this is Indira Gandhi v. Raj Narain10 case, in this case clause (4) of Article 329-A was inserted by the ThirtyNinth amendment, which made election to the post of Prime Minister beyond any judicial review. That amendment was obviously passed with a view to preventing scrutiny of Mrs. Gandhis election to the Lok Sabha by the Court.11 This was gross misuse of public power by the government. The Supreme Court unanimously held that amendment was unconstitutional. The legitimacy of judicial review increased when the Courts started entertaining public interest petitions against government lawlessness. In Vineet Narain v. India12 Court directed as to how the Vigilance Commission should be appointed, it was certainly beyond its power. Having become absolutely helpless against growing corruption and misuse of power by persons holding positions of power , the people saw a ray of hope in judicial intervention.13 Yet another reason for the judges being active is the denial of natural justice doctrine. In Maneka Gandhi v. Union of India 14 , Justice Krishna Iyer observed Natural Justice is a distillate process. There have been significant changes in the causes of judicial activism since 1950.

Independence of Judiciary- Some Latent Dangers, Justice P.K.Goswami First Memorial Lecture , at Guwahati on 18 November 1995
10 11 12 13 14

AIR 1975 SC 1590 Sathe S.P, Judicial Activism In India, ( Oxford University Press, 2002) 1998 1 SCC 226 Supra at 11, p.278 AIR 1978 SC 597 at 619

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________________________________________________________ CHAPTER-III AREAS OF JUDICIAL ACTIVISM ___________________________________________________________

Judicial activism in India can be broadly divided in to two periods, the first period is between 1950 to 1975 and second period begins from 1975 i.e, after emergency. During first two decades of our Constitution, Courts were very conservative and activism was confined to a few cases on right to property. On the other hand, the court was extremely positivist in cases regarding personal liberty. Since the 1970s, we do not find judicial activism on right to property because the right was removed from the list of fundamental rights. From the late 1950s, however, the court started perceiving the larger dimensions of its constitutional role. This movement from a positivist court to an activist court was slow and imperceptible and came to be noticed only during the late 1970s.15 In the late 1950s, although Courts did try to play larger role in protecting Indian democracy but even in these cases court found bound by the limitations of the text of the Constitution. Courts never tried to claim that it had authority to oppose the positivist approach to constitutional interpretation. The amendment of Indian Constitution started soon after the enforcement of Constitution. This required the analysis of the amending power of the Parliament. One of the major instances of judicial activism in India was Keshvananda16 case. Keshavanda overruled the decision given in Golakh Nath17 case and held that the amending power of Parliament cannot be limited by fundamental rights but also ruled that there are implied limits which could not be used to alter the basic structure of the Constitution. The theory of implied limits in the amending power with reference to the basic
15 16 17

Sathe S.P., Judicial Activism In India, (Oxford university press,2002), p.52,53 AIR 1973 SC 1461 AIR 1967 SC 1643.

CONSTITUTIONALITY OF JUDICIAL ACTIVISM features of the Constitution propounded in Keshvanand was the first great act of judicial activism by the Supreme Court of India.18 Another area of judicial activism in India is in establishing Rule of Law. The Constitutional scheme with the Rule of Law as an essential feature was judicially recognized in this manner from an early stage. Right to equality was combined with the English doctrine of Rule of Law in Basheshwar Naths 19case. It was held that the Rule of Law is an essential feature of the Constitution of India; and absolute discretion in matters affecting the rights of the citizens is repugnant in the Rule of Law.20 One of the favorite areas of the activist judges have been the interpretation of Constitution. The concept of equality in Article 14 and the meaning of the words life, liberty, law in Article 21 have been considerably enlarged by judicial decisions. Anything which is not reasonable just and fair is not treated to be equal and is, therefore, violative of Article 14. The word life has been construed to mean life with dignity and not mere physical existence. Liberty has been construed in the manner envisaged in the preamble, that is, liberty consistent with the social norms. The word law means a law which is fair in content and procedure. It has been held that the validity of a law contemplated by Article 21 must satisfy the test of Articles 14 and 19.21 The requirement that every State action must satisfy the test of fairness; consideration of every legitimate expectation in decision-making is necessary to satisfy the rule of non arbitrariness ; and absolute power in any individual is anti democratic , are judicially evolved principles which form part of the constitutional law.22 Right to speedy trial has been held to fall within the guarantee of Article 21.23 Similarly, domiciliary visit by the police without authority of law, was held to be violative of Article 21, assuming right to privacy as a fundamental right derived from the freedom of movement under Article 19(1) (d) as well as personal liberty under Article 21. Abolition of child labour has been held to be the obligation of the State and the practice of child labour has

18 19 20

Verma J.S., New Dimensions of Justice (Universal Law Publishing Co. Pvt. Ltd., 2000 Ed.), AIR 1959 SC 149

State of M.P v. Bharat Singh,AIR 1967 SC 1170: Satwant Singh Sawney v. D.Ramanathan ,AIR 1987 SC 386: and S.G.Jaisigani v. Union of India, AIR 1967 SC 1427
21 22 23

Smt. Maneka Gandhi v.Union of India,AIR 1978 SC 597 Kumari Shrilekha Vidyarthi etc. v.State of Uttar Pradesh & ors. AIR 1991 SC 537 Hussainara Khatoon v.State of Bihar, AIR 1979 SC 1360

CONSTITUTIONALITY OF JUDICIAL ACTIVISM been held to be a violation of human rights.24 The doctrine of public trust has been introduced by judicial decisions wherein the Fundamental Rights guaranteed in the Constitution have been construed to require protection from arbitrariness and misfeasance of public authorities in exercise of public power.25 Another major area of Judicial Activism is through PIL. By the concept of PIL, the Courts have changed the concept of Locus Standi. Supreme Court hears cases even on a post card. Land mark judgments and Social improvement has been done through PIL. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION Judicial review of administrative action has been traditional function of the Courts. After World War, Courts became more vigilant and demanded that although they would not substitute their decision for that of the decision of the administrative authority, they would require the administrative authorities to satisfy them that all relevant matters had been considered . This is known as Wednesbury principle.26 With the advent of the welfare state and increase in the powers of executive , the Courts started asking for stricter standards of reasonableness from the executive. In India courts have always required proportionality test27 where restrictions are imposed on fundamental rights. However, in cases where an administrative action has no adverse effect on fundamental freedoms, the scope of judicial review of administrative action will be limited. The Court will not exercise close scrutiny and would not make primary judgment as to the choices made by the administration. In such situation judicial review will be confined to Wednesbury rules. In India it was believed that proper check on the administrative actions should be political. Abuse of power by the President who acts on the advice of the Council of Ministers has to be checked by the political process. In parliamentary democracy, such checks are inbuilt. In 1977, the Supreme Court opened the door slightly for judicial review on limited grounds of ultra vires and mala fide exercise of power , though it did not strike down the

24 25 26 27

M.C.Mehta( child labour matter) V. State of Tamil Nadu, ( 1996 ) 6 SCC 756. Verma J.S. , New Dimensions of Justice, ( Universal Law Publishing Co. Pvt. Ltd., 2000 Ed). Associate Provincial Pictures Ltd. V. Wednesbury Corporation ( 1948) 1 K.B. 223. Union of India v. G. Ganaythuam ( 1997) 7 SCC 463.

CONSTITUTIONALITY OF JUDICIAL ACTIVISM impugned action.28 However in S.R.Bommai v. India29 Supreme Court by a majority of six judges held that the Presidents satisfaction under article 356 of the Constitution was justifiable. In Canara Bank v. V.K.Awasthy30, the apex Court had the opportunity of explaining the scope and ambit of the power of judicial review of administrative action. The Court held that an administrative action if adversely affects fundamental freedoms of articles 19 and 21 of the Constitution , then the extent of judicial review will be extensive and the Court would make primary judgment and close scrutiny of the administrative action. Hence the power of judicial review will be exercised on the grounds of illegality, irrationality, procedural impropriety and proportionality.31 In Sidheswar Sahakari Sahakhar karkhan Ltd. v. Union of India32 the apex Court was of opinion that normally the court should not interfere in policy matter which is within the preview of the government unless it is shown to be contrary to law or inconsistent with the provisions of the Constitution.

28 29 30 31 32

State of Rajasthan v. Union of India. AIR 1977 SC 1361.

1994 3 SCC 1 ( 2005) 6 SCC 321 Annual Survey of Indian Law( The Indian Law Institute, New Delhi, volume XLI, 2005) ( 2005) 3 SCC 369

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___________________________________________________________ CHAPTER-IV LEGITIMACY OF JUDICIAL ACTIVISM ___________________________________________________________

Conceptual meaning of legitimacy can be understood under three headings viz. a. Legal validity b. widely shared feeling among people that they have a duty to obey the rule c. actual obedience of law by a large number of people.33 The functioning of any judicial system largely depends upon the public trust. If people faith is lost, judiciary would seize to exist. So, it is public in democracy who gives legitimacy to any judicial decision. Therefore, the third meaning of legitimacy, widely shared feeling among people that they have a duty to obey the rule cannot be achieved until and unless people do not have faith in the decisions of Court. Public trust is also a good mechanism to check judicial misconduct and misbehaviour. The judiciary is the weakest organ of the state. It becomes strong only when people repose faith in it. Such faith of people constitutes legitimacy of the Court and judicial activism. Courts have to continuously strive to sustain their legitimacy. What sustains legitimacy of judicial activism is not its submission to populism but its capacity to withstand such pressure without sacrificing impartiality and objectivity. Courts must not be only fair, but they must appear to be fair. Such inarticulate and diffused consensus about the impartiality and integrity of the judiciary is the source of Courts legitimacy.34 People know that at times Courts can also give wrong decisions can exceed their powers or may not always be fair but their experience tells them that such instances are exceptional. This widely shared belief in the fairness of the courts is what we mean by the legitimacy of judicial activism. Since, the power of the Court is derived from the social legitimacy; a Court sustaining its legitimacy is in effect accountable to the people.35
33 34

Sathe S.P, Judicial Activism In India,( Oxford University Press, 2002) Ib, p.310

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CONSTITUTIONALITY OF JUDICIAL ACTIVISM The legitimacy of judicial decisions depends upon a shared perception that it is independent and non-political. Independent means free from any influence, political, social or economic. Legitimacy is sustained by a feeling among people that it is independent, objective, principled and fearless.36 LEGAL VALIDITY OF JUDICIAL ACTIVISM Courts in India have drawn the legality of their judicial activism from Constitution of India itself. The framers of our Constitution of India provided powers to the judiciary in Articles: Art. 32 for the Supreme Court of India and Art.226 for the High Courts in India and armed with powers to issue directions, orders or writs and these powers include the powers in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warranto. Supreme Court in Basappa v. T. Nagappa37 clarified that the Supreme Court through Art. 32 and the High Courts in India through Art. 226 are bestowed with enormous powers to exercise in issuing the writs in the nature of habeas corpus etc., depending upon the need of the case for the enforcement of fundamental rights. In addition to these, the Constitution bestowed a special power in the High Court to entertain petitions for other purposes too. The veil of limitation on the exercise of powers under Art 32 is raised by arming the Supreme Court with Art 136, giving more and wide powers, which are hither to not found in Art 32. By virtue of the powers conferred on the Supreme Court can entertain petitions by way of granting Special Leave to appeal. In Sanvat Singh v. State of Rajathan38 and Kanaialal v. Income Tax commissioner39 Supreme Court held that the power of the Supreme Court under Art 136 could not be exhaustively defined. COMTEMPT OF COURT Contempt of Court is one of the most controversial ways by which Courts in India try to draw its legitimacy. When an order of the Court is disobeyed , the power to punish for contempt is necessary to maintain the dignity of Court. If the people can get away
35 36 37 38 39

Ib p.307 Supra at 23, p. 292 AIR 1954 SC 440 AIR 1961 SC 715 AIR 1962 SC 1323

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CONSTITUTIONALITY OF JUDICIAL ACTIVISM with defiance of the orders of the Court, the Court will lose respect and will be further disobeyed. Sometimes critical situations arise when a politically authority disobeys the Court and justifies its disobedience. The legitimacy of a Court depends upon the feeling of obligation to obey that prevails among the people. Any disobedience that goes unpunished can weaken the authority of Court and consequently its legitimacy. A Court does not have the power of purse or sword. Its only source of power is the feeling among the people that they are bound by it. The sanction at the disposal of the Court for getting it obeyed is the power to punish for contempt. This power in itself is not a great deterrent and therefore the Court wants to ensure that situation demanding its use is rare40. Three types of restraints are imposed by the law of contempt; (a) restriction on writing or speeches affecting matters pending in Court ( b) punishment of defiance of Court orders. (C) punishment of scandalous attacks on the judges or the Court. But this Power to Contempt has been criticized on several grounds in recent times. Many time question has arisen that after all judges are also human being and bound to err, so why they should not be criticized for their decisions. With greater democratization of judicial process , judicial decisions are bound to be criticized at the popular level. Media , which plays a significant role in publicizing the decisions and discourses of the Court, also must have the right to criticize the decisions of the Courts from the standpoint of policy and fundamental constitutional values. Such public criticism can play a very important role in making the judges accountable.41 The corruption in judiciary can easily be checked by proper criticism of judicial decisions. Due to this there has been amendment in the Contempt Of Court Act and truth as a defence in cases related to contempt of Court has been added.

40 41

Supra at 26, p. 288 Supra , p. 286

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CONCLUSION ___________________________________________________________
The discussion whether judicial intervention in the functioning of other two organs of the government is legitimate or not has become a routine affair in the legal fraternity. The dollar question is not about its legitimacy, but whether it is benefiting the little man or not. Undoubtly, judicial extra intervention in the functioning of other two organs is only due to the fact that judiciary is compelled to do so when these organs fail to perform their duty properly. Legislature and executive are no more sensitive to the urges and aspirations of the people. Politics has become too much constrained with vote bank. In these conditions, common man finds judiciary as the only saviour. And Courts too have been able to uphold their faith in this institution. The most significant contribution of judiciary has been in establishing the rule of law in the society. By judicial creativity to suit the Indian conditions the recent phase of judicial activism has advanced the cause of justice, attempted to achieve the constitutional purpose in accordance with constitutional scheme and thereby ensured the implementation of the Rule of Law. Judicial activism is an attempt to realize hopes and aspirations of the people and to strengthen the foundation of Rule of Law which is the bedrock of democracy. Secondly, judicial activism has been able to fill the vacuum made by legislation, executive and even Constitution in many cases. Take for instance, Apex Court in Vishaka v. State of Rajasthan42 even laid down proper guidelines in the absence of any statutory legislations. In the era of falling social values judiciary especially Supreme Court of India has been able to maintain its dignity. But question arises, this so called weakest organ of democracy which is growing powerful day by day be left without unchecked. No doubt we have doctrine of check and balance in our country, but it will not be wrong to say that it has totally failed to check the power of Apex Court. Reason for this is simply because both executive and legislature are indulge in corrupt practices and they are not in position of checking power of Courts. Take most recent instance of the reservation for backward classes case, the apex Court came very close to declare that legislature
42

( 1997) 6 SCC 241

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CONSTITUTIONALITY OF JUDICIAL ACTIVISM cannot pass the bill until it is not scrutinized by the Apex body. If this type of attitude will prevail , undoubtly it will create problem for the democratic set up of our country. The Apex court will have to understand that rule of law does not mean rule of judges. Parliamentarians are elected by the people to frame laws to govern the country and they are accountable to the public at least once in five years. The judiciary is accountable to whom? This big question is still to be answered by the Honourable Supreme Court. Who is Supreme in a democratic country like India? Are people of India Supreme or is it the Judiciary Supreme.?

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BIBLIOGRAPHY

BOOKS Verma J.S. New Dimensions of Justice ( Universal Law Publishing Co. Pvt. Ltd., 2000 Ed). Sathe S.P., Judicial Activism In India, (Oxford university press,2002)

ARTICLES Dangers, Justice P.K.Goswami First Memorial Lecture , at Guwahati on 18 November 1995 Independence of Judiciary- Some Latent Judges In Britain Create A flutter, Times of India,( Bombay Ed., dated 7 November 1995)

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