Saturday, September 10, 2011

In recent times judiciary has been very active in various facets of life. The concept of judicial activism is another name for innovative interpretation. Judicial activism implies laying down priorities

policies and programmes and giving direction to execute them when they are not obligatory and are entirely at the discretion of the executive and legislative

or other authorities. Sometimes it goes beyond its jurisdiction in public interest and interferes with the working of the independent autonomous authorities. In other words

activeness on the part of the members of judiciary is termed as ‘judicial activism’.

Judicial activism involves innovative interpretations of the nuances of law. The pro-active approach of the judiciary with regard to particular socio economic conditions prevailing in the country is judicial activism. According to former Chief Justice of the Supreme Court of India, Justice J.S. Vermeer, “The role of the judiciary in interpreting existing laws according to the needs of the times and filling the gaps appears to be the true meaning of judicial activism.” In other words, it is a continuous process that helps to advance the cause of law in the wider interest of the public. In a way, judicial activism constitutes an integral part of judicial review.

The concept of judicial activism is not new. Its origin goes back to nineteenth century America when Chief Justice Marshall, one of the greatest judges of the West, was made a judge in the Marbury vs. Madison 1 case. Marbury was appointed judge under the judiciary Act of 1789 by the US Federal Government. Though the warrant of appointment was signed it could not be delivered. Marbury brought an action for issue of a writ of mandamus. By then Marshall became the Chief Justice having been appointed by the outgoing President, who lost election. Justice Marshall faced the imminent prospect of the government not obeying the judicial fiat if the claim of Marbury was to be upheld.

In a rare display of judicial statesmanship asserting the power of the Court to review the actions of the Congress and the Executive, Chief Justice Marshall declined the relief on the ground of the certain section of the Act, on the ground of which the claim made by Marbury, was unconstitutional, since it conferred in violation of the American Constitution, original jurisdiction on the Supreme Court to issue writs of mandamus. 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 a 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. Thus, the twin concepts of judicial review and judicial activism were boar.

In India judicial activism was made possible by PIL (Public Interest Litigation). Generally speaking, before the Court takes up a matter for adjudication, it must be satisfied that the person who approaches it has sufficient interest in the matter. It was made so in favour of social action and the court accepts its validity and steps in to set things right. Ideologically, such litigation and judicial intervention born of it has transformed the classical liberal rights model enshrined in the Constitution into a paradigm provided ‘rights’. Undoubtedly, such litigation has provided an ordinary man an access to the apex court of the country.

It has in a way democratized the judicial process. Furthermore, the PIL has contributed to the rise of a form of judicial scrutiny of each and every governmental institution ranging from hospitals, prisons, manufacturing units covering issues of health, environment, safety, security, privacy and welfare, etc.

Judicial activism has been a very frequent and common phenomenon during one and a half decade. It is said to have been born in India in 1986. Its credit goes to Justice P.N. Bhagwati who introduced the tradition of hearing on PIL even on a postcard. Justice Bhagwati has clearly stated, “The Supreme Court has adopted a pro-active approach for the last two years, particularly, having regards to the peculiar socio-economic conditions prevailing in the country.” Thus, judicial activism was born out of a public litigation appeal. Judicial activism is developed in each and every aspect of life, including social, economic, political, religious, educational, etc. Undoubtedly, it has strengthened the faith of masses in the judiciary of the country.

A polity usually consists of three things-Executive, Judiciary and Legislature. All of them have their own well- defined and well-laid roles in the Constitution. When any of these wings of the government fails to dispense with its duties properly or refuses to comply with the statutory provisions, the judiciary has to intervene. Justice J.S. Verma, the former Chief Justice of India has this view in this regard, “Judicial activism is required only when there is inertia in others.

“If everyone else is working, we do not have to step in.” These words of Justice Verma clearly define the situation in which judicial activism is required. It would not be out of place to mention that in recent past when there were news of various scams and scandals, the executive did not take proper action against those bureaucrats and politicians involved in them. In such situations, the judiciary has to go beyond its jurisdiction to ensure justice and build public faith in constitutional bodies.

Justice P.B. Sawant, former Justice of the Supreme Court says, “It is circumstances which compel it to intervene and assert its role as the guardian of the law when the law is not respected by those who ought to enforce it.” Thus, it is clear that when the executive is lax or the legislators lack initiative to mend outdated laws or bring about changes as per the changing socio-economic conditions, or remain impervious to public pressure to bring about a change when public interest clashes with the members’ collective self-interest, the judiciary is forced to step in as the guardian of the Constitution.

As Nikhil Chakravarty has observed, “There are cases in which the intervention by the judiciary may seem unusual, but we are passing through abnormal times, and the judiciary is the organ of the Constitution which alone has the authority to interpret the Constitution.” The judiciary is enjoined to attend to the difficult task of seeing to it that institutions, groups, and individuals do not cross the limits.

In recent years, as the incumbents of the Parliament have become less representative of the will of the people, there is a growing sense of frustration in people towards the democratic process and their faith to some extent has been shaken in present system of functioning of government. The reaction of the ordinary citizens is manifested in two ways-one group which constitutes the majority, has chosen to look upon these developments as an unavoidable feature and has adapted itself to these uncertainties, while continuing to bemoan its destiny, while the other group, which constitutes a very small minority, has chosen a more positive and innovative approach and has sought to achieve its objectives through judiciary.

This it does by approaching public spirited organizations and bodies, who, in turn, file public interest cases before the courts. This situation can be avoided if the issues were properly handled by the Parliament and the people were kept informed of developments. When such citizens raise grave constitutional issues and exercise their fundamental rights in invoking the jurisdiction, the Supreme Court is left with little choice but to act. A.M. Ahmadi, former Chief Justice of India has held this view, “The present situation is not really a case of one democratic institution, trying to exert itself, over another, rather, it is a case of citizens finding new ways of expressing their concern for events occurring at the national level, and exerting their involvement in the democratic process.”

The permanent values embodied in the Constitution need interpretations in the context of the changing social and economic scenario. The court undertakes a delicate task of reconciling with the changing situations and the resultant needs. It is the duty of the executive to implement faithfully the laws made by the legislature. When the executive fails to discharge its obligations, it becomes the primordial duty of judiciary to compel the executive to perform its lawful functions. In the recent times much of the criticism aired against the judiciary concerns this area.

When crimes are committed by men in power and attempts are made to conceal them by rendering the official machinery ineffective, recourse to judiciary becomes inevitable. It becomes the duty of the judiciary to take cognizance of the executive’s lapses and issue appropriate direction as to the method and manner in which the executive should act as ordained by the Constitution and the law. If the judiciary fails to respond, it would be guilty of violating the Constitution, treason indeed when all the three organs of the State-the legislature, the executive and the judiciary owe their existence to the Constitution, no single organ can claim immunity from accountability.

This new jurisprudence in the form of judicial activism has no doubt, contributed in a great measure to the well-being of the society. People, in general, now firmly believe that if any institution or authority acts in a manner, not permitted by the Constitution, the judiciary will step in to set right the wrong.

However, judiciary has to work within the parameters laid down by the Constitution without affecting the basic structures of any of the government’s organs. Reconciliation of the permanent value embodied in the Constitution with the transitional and changing requirements of society must not result in undermining the integrity of the Constitution. Any attempt leading to such a consequence would destroy the very structure of the constitutional institutions. Conscious of the primordial fact that the Constitution is the supreme document the mechanism under which laws must be made and governance of the country carried on, the judiciary must play its activist role. No constitutional value propounded by the judiciary should run counter to any explicitly stated constitutional obligations or rights in the name of doing justice and taking shelter under institutional self-righteousness.

The judiciary cannot act in a manner disturbing the delicate balance between the three wings of the State. According to Justice J.S. Verma, “Judicial activism and judicial restraint are the two faces of the same coin. Self- discipline is to be practised strictly by the members of the judiciary and the judges must refrain from commenting on policy matters.” Warning against the over activism of judiciary, Justice H.R. Khanna said, “Special responsibility devolves upon the judges to avoid the overactivist role and to ensure that they do not overstep or trespass upon the sphere marked for the other wings of the State.” However, responsibility lies with the aware citizens of the country to help the judiciary in this regard. Above all, the media has a prominent role in educating the public and ensuring an efficient and smooth administration.


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 malleable.

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 word.

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 repercussions on the law or on the society at large.

Kehavananda Bharati’s case

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 reconciliation 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

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".


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.


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