JUDICIAL ACTIVISM-CRITICAL ANALYSIS

L.L.M. – Research Methodology and Techniques of Legal WritingPROJECT SUBMISSION – October 2014

PROJECT REPORT SUBMITTED ON 20/10/2014 IN FULFILMENT OF

THE REQUIREMENTS FOR THE MANDATORY COURSE ONRESEACH METHODOLOGY AND TECHNIQUES OF WRITING

JUDICIAL ACTIVISM-CRITICAL ANALYSIS AND CURRENT DEBATE

Submitted By Supervised By

G.ASHWINI, P.V.K RAO,L.L.M. Candidate, Professor,

2014-1LLM-17,B.A, M.A, M.Phil,

Ph.D.,NALSAR University of

Law,NALSAR University of

Law,

1 | P a g e


Hyderabad, Telangana. Hyderabad, Telangana.

DECLARATION

I do hereby declare that this project entitled “Critical

Analysis of Judicial Review and Current Debate” is the record of

bona fide research carried out by me under the guidance and

supervision of Professor P.V.K. Rao, Faculty of Law, Nalsar

University of Law. Hyderabad. Telangana in the partial

fulfillment of the project report to be submitted for the

Mandatory Course “RESEARCH TRAINING AND METHODS OF LEGAL

WRITING”

I further declare that this study has not previously formed the

basis for the award of any degree, diploma, associate ship or

other similar title of recognition. This is my original work and

has not been presented earlier in this manner. This information

is purely of academic interest and passion over the subject.

An error or Omission that might have occurred is totally un-

intentional and un-fortunate, and I express apology for the

same.

2 | P a g e


TABLE OF CONTENTS

SL.NO TITLE PAGE

NO.

1 ABSTRACT 5

2 OBJECT OF STUDY 5

2.1 SCOPE OF STUDY 6

2.2 SOURCE OF INFORMATION 6

2.3 RESEARCH QUESTIONS 6

2.4 HYPOTHESIS 7

3 DEFINITIONS 7

4 ORIGIN AND HISTORY OF JUDICIAL REVIEW 11

4.1 EVOLUTION OF JUDICIAL REVIEW IN USA 11

4.1.1 THE ORIGIN OF JUDICIAL REVIEW 11

4.1.2 FIRST CASE 12

4.1.3 USA CONSTITUTION 12

4.1.4 FOREFATHERS OF USA CONSTITUTION 13

3 | P a g e


4.2 JUDICIAL ACTIVISM IN UK 13

4.3 EVOLUTION OF JUDICIAL ACTIVISM IN INDIA 13

4.4 FACTORS CONTRIBUTING TO THE EVOLUTION OF JUDICIAL REVIEW IN INDIA

15

4.5 CONSTITUTIONAL PROVISIONS OF JUDICIAL REVIEW IN INDIA

16

4.6 EMERGENCE OF JUDICIAL REVIEW IN INDIAN JUDICIARY

16

5 ROLE OF JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS

17

5.1 THE PLACE OF JUDICIAL REVIEW IN INDIAN CONSTITUTION

17

5.2 EXPANSION OF FUNDAMENTAL RIGHTS 18

5.3 MILESTONES OF PUBLIC INTEREST LITIGATION IN INDIA

20

5.4 PUBLIC CAUSE LITIGATION 24

5.4.1 ARAVALI CASE 27

5.4.2 COMMON CAUSE Vs. UNION OF INDIA 28

5.5 MILTARY OPERATION 29

5.6 LEGISLATIVE PROCEEDINGS 29

6 IMPLICATIONS OF JUDICIAL REVIEW ON INDIAN JUDICIARY

29

7 CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEWIN INDIA

32

4 | P a g e


8 CRITISISMS 33

8.1 CRITISISMS IN INDIAN CONTEXT 34

9 CONCLUSION 34

10 BIBLIOGRAPHY 37

1. ABSTRACT:

The judicial activism is use of judicial power to articulate and

enforce what is beneficial for the society in general and people

at large. Supreme Court despite its constitutional limitation has

come up with flying colors as a champion of justice in the true

sense of the word. JUSTICE… this seven letter word is one of the

most debated ones in the entire English dictionary. With the

entire world population being linked to it, there is no doubt

about the fact that with changing tongues the definition does

change. The judicial activism has touched almost every aspect of

life in India to do positive justice and in the process has gone

beyond, what is prescribed by law or written in black and white.

Only thing the judiciary must keep in mind is that while going

overboard to do justice to common man must not overstep the

limitations prescribed by sacrosanct i.e. The Constitution.

Key words: Judicial activism, judicial power, Constitutional limitation.

2. OBJECT OF THE STUDY:

5 | P a g e


As “Judicial Activism” is an ever- emerging concept and

evolves in their later stages of development, my emphasis lies on

the study of the predominant role played by Judicial activism and

its impact on Indian Judiciary. My object or aim of the study

proposes to be The Critical analysis of Judicial Review and

current debate of it in transnational scenario.

My purpose of the study is:

To explore the historical background of Judicial Review

To examine the dimensions of legitimate use of “Doctrine of

Judicial review”

What are the grounds to be invoked for the use of judicial

review

How does Doctrine of Judicial Review acts as a check and

balance on the Executive as well on legislative actions

The Scope of the judicial review to exercise its power over

legislative and executive action

Analyzing the consequences or after effects of judicial

review, if works in frustration of anything

To review the legal frame work regulating and governing the

legitimate use of this doctrine.

2.1 SCOPE OF STUDY:

The scope of the study is not only limited to the explaining the

Doctrinal approach of Judicial activism but also the risk it

6 | P a g e


carries, when used recklessly. It emphasis on the Legal frame

work the laws relating to “Judicial Review and Activism in

India” As there is a little chance of field work, this study is

based on “Doctrinal” Approach.

2.2 SOURCE OF INFORMATION:

Research in this work mainly relied upon “Doctrinal Method”. The

present approach in the research is primarily Doctrinal,

analytical and descriptive. The present research is mainly

dependent on Statues and Committee reports and secondary sources

like books and articles. Internet has provided with major

contribution of the work. Internet has provided with major

contribution to explore into the various dimensions of the topic

by providing with most latest and relevant information

2.3 RESEARCH QUESTIONS:

This Research paper focuses and tries to answer the following

questions:

1. What is the Historical background of Judicial Activism?

2. What are the definitions of Judicial Activism?

3. What are the various functions and uses of Judicial Activism?

4. What is the legal framework of the judicial activism in India?

7 | P a g e


5. How the Judicial activism saw light in Indian Judiciary in

initial and in phases?

6. How the concept of PIL (public interest litigation) had its

roots in Indian Judiciary?

The above research made a significant and considerable effort in

answering the above spot lighted questions

2.4 HYPOTTHESIS:

My Hypothesis is to draw up an impression that Right to Judicial

Review and Judicial Activism acts as boon to the depressed and

down trodden sections of the society with the improvement and

entrenchment in the Era of Fundamental rights by the way of

invoking the concepts of PIL (Public Interest Litigation), SIL

(Social Interest litigation) and Expanding the horizons of Article

21 ad personal liberty. It also acts as check and balances on the

acts of the Legislative and Executive actions maintaining an

accountability and transparency, there by acting as a touchstone

in either validating or invalidating the Acts formulated by both

Legislative and Executive organs of State body.

3. DEFINITIONS:

Judicial activism describes judicial rulings suspected of being

based on personal or political considerations rather than on

8 | P a g e

http://en.wikipedia.org/wiki/Judiciary


existing law.1 The question of judicial activism is closely

related to constitutional interpretation, statutory

construction, and separation of powers.

Black's Law Dictionary defines judicial activism as a "philosophy of

judicial decision-making whereby judges allow their personal

views about public policy, among other factors, to guide their

decisions." Judicial activism means active role played by the

judiciary in promoting justice. Judicial Activism to define

broadly is the assumption of an active role on the part of the

judiciary.2 Ronald Dworkin, for example, rejects a “strict

interpretation” of the constitutional text because it limits

constitutional rights “to those recognized by a limited group of

people at a fixed date of history.”

According to Prof. Upendra Baxi, Judicial Activism is an

inscriptive term. It means different things to different people.

While some may exalt the term by describing it as judicial

creativity, dynamism of the judges, bringing a revolution in the

field of human rights and social welfare through enforcement of

public duties etc., others have criticized the term by

describing it as judicial extremism, judicial terrorism,

transgression into the domains of the other organs of the State

negating the constitutional spirit etc.1http://en.wikipedia.org/wiki/Judicial_activism

2 Chaterji Susanta, “ ‘For Public Administration’ Is judicial activism really deterrent to legislative anarchy and executive tyranny ? “, The Administrator, Vol XLII, April-June 1997, p9, at p11

9 | P a g e

http://en.wikipedia.org/wiki/Black's_Law_Dictionary

http://en.wikipedia.org/wiki/Separation_of_powers

http://en.wikipedia.org/wiki/Statutory_construction

http://en.wikipedia.org/wiki/Statutory_construction

http://en.wikipedia.org/wiki/Constitutional_law

http://en.wikipedia.org/wiki/Judicial_activism


Judicial activism implies going beyond the normal constraints

applied to jurists and the Constitution, which gives jurists the

right to strike down any legislation or rule against the precedent

if it goes against the Constitution. Thus, ruling against majority

opinion or judicial precedent is not necessarily judicial activism

unless it is active. 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 a functional democracy”.

In a modern democratic set up, judicial activism should be looked

upon as a mechanism to curb legislative adventurism and executive

tyranny by enforcing Constitutional limits. That is, it is only

when the Legislature and the Executive fail in their

responsibility or try to avoid it, that judicial activism has a

role to play. In other words, judicial activism is to be viewed as

a “damage control” exercise, in which sense, it is only a

temporary phase. Recent times have seen judiciary play intrusive

roles in the areas of constitutionally reserved for the other

branches of governments. Issues in judicial activism arise, when

governance is apparently done by Mandamus.

The Constitution of India operates in happy harmony with the

instrumentalities of the executive and the legislature. But to be

truly great, the judiciary exercising democratic power must enjoy

independence of a high order. But independence could become

dangerous and undemocratic unless there is a constitutional

10 | P a g e


discipline with rules of good conduct and accountability: without

these, the robes may prove arrogant.3

Judicial activism is the view that the Supreme Court and other

judges can and should creatively (re)interprets the texts of the

Constitution and the laws in order to serve the judges' own

visions regarding the needs of contemporary society. 4Judicial

activism believes that judges assume a role as independent policy

makers or independent "trustees" on behalf of society that goes

beyond their traditional role as interpreters of the Constitution

and laws. The concept of judicial activism is the polar opposite

of judicial restraint.

Failure on part of the legislative and executive wings of the

Government to provide ‘good governance’ makes judicial activism an

imperative. Delivering justice to a population of over a billion

does not sound like and never will be an easy task. It however

becomes increasingly difficult in a country like India. The

Executive, the Legislature and the Judiciary are the three wings

of the Indian democracy.

Judicial activism, however, came into its own only in the last

couple of years. In his Dr. Zakir Hussain Memorial Lecture, Former

Chief Justice of India A.M. Ahmadi said, “In recent years, as the

incumbents of Parliament have become less representative of the

will of the people, there has been a growing sense of public

3 Http://www.thehindu.com/opinion/lead/article3785898.ece4 http://definitions.uslegal.com/j/judicial-activism/

11 | P a g e

http://definitions.uslegal.com/j/judicial-activism/

http://www.thehindu.com/opinion/lead/article3785898.ece


frustration with the democratic process. This is the reason why

the (Supreme) Court had to expand its jurisdiction by, at times,

issuing novel directions to the executive.”

Many are critical of judicial activism as an exercise of judicial

powers, which displaces existing laws or creates more legal

uncertainty than is necessary, whether or not the ruling has some

constitutional, historical or other basis. Judicial activism can

be considered as “legislating from the bench.” Some have even gone

to the extent of calling it judicial tyranny. This implies that a

judge is ruling on the basis personal political convictions or

emotions. Declaring that the judiciary has a vital function to

protect minority rights in a pluralist society, former Attorney

General of India Soli J Sorabjee said ''judicial activism has

contributed to the protection of fundamental human rights.5

When serious issues like environmental pollution crop up and the

statutory bodies take no action and the people suffer, the courts

have to step in to alleviate human suffering, he added. Calling

upon the judiciary to evolve a ''jurisprudence of compassion'',

Mr. Storable said the institution of public interest litigation

(PIL) had helped to secure ''fundamental rights as a living

reality for some sections of society.'' However, the senior

Supreme Court lawyer cautioned that PIL ''could not be treated as

a pill for every ill'' and said that some had sought to use it as

5 http://news.oneindia.in/2008/11/15/sorabjee-defends-judicial-activism-1226761401.html

12 | P a g e

http://news.oneindia.in/2008/11/15/sorabjee-defends-judicial-activism-1226761401.html

http://news.oneindia.in/2008/11/15/sorabjee-defends-judicial-activism-1226761401.html


an instrument of blackmail and oppression. The judiciary had to be

vigilant against personal, political and publicity-oriented

litigation masquerading as PIL, he added. However, the abuse of

PIL was not a ground for its abolition or restriction as it had

played an important role in securing justice to suffering

sections, ranging from under-trial prisoners to children working

in hazardous occupations and workers treated as slaves in quarries

and kilns. Lauding Justice (Red.) V R Krishna Ayer for his

judgments upholding rights of prisoners, Mr. Storable said torture

was rampant in Indian prison cells. By giving judgments against

solitary confinement and handcuffing of prisoners, Justice Krishna

Ayer had upheld basic human dignity.

Judicial activism might sound, for a lay man, a heavy-duty term

but in the simpler manner is quite easy to comprehend. We can say

in simple words that judicial activism is a practice by the judges

that does not involve the balance of law, instead it hampers it.

In judicial activism, the judge places his final decision with his

heart and mind, which is emotionally handled. It, at times, works

in our favor to save from the wrong decision to take place but at

times it also backfires on us. In other words we can easily say

that judicial activism is the practice going beyond the normal law

for the jury. There are some very important cases which come in

the talk whenever we discuss about judicial activism in India.

Bhopal gas tragedy and the Jessica All Murder case are among the top two. The

latter was an open and shut case for all. Money and muscle power

13 | P a g e


tried to win over the good. But lately, it was with the help of

judicial activism that the case came to at least one decision. The

two most prominent figures in the Bar Council of India whose names

are the most inter related with judicial activism are Justice

Prafullachandra Natwarlal Bhagwati and Justice Vaidyanathapura

Rama Krishna Iyer.

4. ORIGIN AND HISTORY OF JUDICIAL REVIEW:

Arthur Schlesinger Jr. introduced the term "judicial activism" in a

January 1947 Fortune magazine article titled "The Supreme Court:

1947".6

6 Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447. "Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances

14 | P a g e

http://en.wikipedia.org/wiki/Fortune_(magazine)

http://en.wikipedia.org/wiki/Arthur_Schlesinger_Jr.


The phrase has been controversial since its beginning. An article

by Craig Green, "An Intellectual History of Judicial Activism," is

critical of Schlesinger's use of the term; "Schlesinger's original

introduction of judicial activism was doubly blurred: not only did

he fail to explain what counts as activism, he also declined to

say whether activism is good or bad." 7

Even before this phrase was first used, the general concept

already existed. For example, Thomas Jefferson referred to the

"despotic behavior" of Federalist federal judges, in

particular, John Marshall.8

4.1 EVOLUTION OF JUDICIAL REVIEW IN USA:

4.1.1 The origin of Judicial Review

In Marbury v. Madison (1803) US SC

and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' andJustices Frankfurter,Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group."

7 Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447. "Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' andJustices Frankfurter,Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group."

8 Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p.209

15 | P a g e

http://books.google.com/books?id=qWlMgSqhRv4C&pg=PA254&lpg=PA254&dq=%22despotic+branch%22+jefferson+adams&source=bl&ots=kjs0wYo4d1&sig=IBv5ditYQw7_M0vY1Ul48cpcquM&hl=en&sa=X&ei=027uTqLzHcjc0QGE-rXQCQ&ved=0CEMQ6AEwBg#v=onepage&q=%22despotic%20branch%22%20jefferson%20adams&f=false

http://books.google.com/books?id=qWlMgSqhRv4C&pg=PA254&lpg=PA254&dq=%22despotic+branch%22+jefferson+adams&source=bl&ots=kjs0wYo4d1&sig=IBv5ditYQw7_M0vY1Ul48cpcquM&hl=en&sa=X&ei=027uTqLzHcjc0QGE-rXQCQ&ved=0CEMQ6AEwBg#v=onepage&q=%22despotic%20branch%22%20jefferson%20adams&f=false

http://en.wikipedia.org/wiki/John_Marshall

http://en.wikipedia.org/wiki/Federalist

http://en.wikipedia.org/wiki/Thomas_Jefferson

http://en.wikipedia.org/wiki/Fred_M._Vinson

http://en.wikipedia.org/wiki/Stanley_Forman_Reed

http://en.wikipedia.org/wiki/Harold_Hitz_Burton

http://en.wikipedia.org/wiki/Robert_H._Jackson

http://en.wikipedia.org/wiki/Felix_Frankfurter

http://en.wikipedia.org/wiki/Wiley_Blount_Rutledge

http://en.wikipedia.org/wiki/Frank_Murphy

http://en.wikipedia.org/wiki/William_O._Douglas

http://en.wikipedia.org/wiki/Hugo_Black

http://en.wikipedia.org/wiki/Fred_M._Vinson

http://en.wikipedia.org/wiki/Stanley_Forman_Reed

http://en.wikipedia.org/wiki/Harold_Hitz_Burton

http://en.wikipedia.org/wiki/Robert_H._Jackson

http://en.wikipedia.org/wiki/Felix_Frankfurter

http://en.wikipedia.org/wiki/Wiley_Blount_Rutledge

http://en.wikipedia.org/wiki/Frank_Murphy

http://en.wikipedia.org/wiki/William_O._Douglas

http://en.wikipedia.org/wiki/Hugo_Black


Marbury v. Madison was the first US Supreme Court case to strike

down an Act of Congress as unconstitutional. Since that time, the

federal courts have exercised the power of judicial review.

The Supreme Court of US ruled that the federal courts have the

duty to review the constitutionality of Acts of Congress and to

declare them void when they are contrary to the Constitution.

Judicial Review is now a well settled doctrine probably in all the

democratic country.

4.1.2 First Case:

Little v Barreme

This case is also known as the Flying Fish Case. In it the order of

President John Adams was declared void by the US Supreme Court.

Many people know Marbury v. Madison as the first Supreme Court

decision to declare an act of Congress Unconstitutional but few

people could identify the Court's first decision declaring

Executive Branch action to be unconstitutional.

In US the history of judicial review can be divided into two

parts:

Judicial Review before Constitution of US; and

Judicial Review after Constitution of US.

16 | P a g e


4.1.3 USA CONSTITUTION:

Before US Constitution the US state courts in at least seven

of the thirteen states had engaged in judicial review and had

invalidated state statutes because they violated the state

constitution or other higher law.

The Constitution of US came into force in 1787. There are no

specific provisions related with judicial Review but there

are some provisions which indicate this doctrine of Judicial

Review.

Article 3 states: The judicial power of the United States

shall be vested in one Supreme Court and in such inferior

courts as the Congress may from time to time establish.

Article 6 states: this Constitution, the supreme Law of the

Land; and the Judges and Government authorities in every

State shall be bound by it.

And the Supreme Court has the ultimate authority to decide

whether statutes are consistent with the Constitution or not

4.1.4 FORE FATHERS OF USA CONSTITUION:

The View of the Founding Fathers of US Constitution:

The framers stated that the courts' power to declare laws

unconstitutional would provide a check on the legislature,

protecting against excessive exercise of legislative power.

17 | P a g e


4.2 JUDICIAL ACTIVISM IN UK:

There is no written Constitution in UK but the doctrine of

Judicial Review is used there.

In UK the doctrine of "ultravires" was relied upon by the judiciary

for striking down legislation by sub-ordinate bodies constituted

by Charter of Statutes.

4.3 EVOLUTION OF JUDICIAL ACTIVISM IN INDIA:

Supreme Court has attained the zenith of its powers in 1973 with

its claim to invalidate even an amendment of the Constitution on

substantive grounds. As an eminent lawyer sums up, from about

1974, the court’s emphasis has shifted to correcting the executive

actions of Government for their un-reasonableness particularly in

Administrative matters9

However, the imposition of Emergency in 1975 has had a very

demoralizing effect on judiciary because of super cession of

senior most judges, in the appointment of the Chief Justice of

India, and using the process of Constitutional Amendments to

restrict the jurisdiction of the courts.

9 Andhyarujina, T.R: Judicial Activism & Constitutional Democracy in India, (Bom.: 1992) at p.29

18 | P a g e


The Supreme Court, plight at that time i.e. in mid 1970’s was

described by Upendra Baxi in the following words:

“Justices of the Supreme Court, again like many middle-class

Indians, had all along assumed that something like authoritarian

rule just cannot emerge in Indian Polity. Nothing very drastic had

happened in the national emergencies proclaimed earlier, which

were related to more serious situations of aggressions or

hostility by neighboring countries. But as events un-folded, they

watched from their Olympian Heights with increasing anxiety the

wide spread interests, the regime of press censorship, the

strengthening of MISA, the expansion of IX schedule, retroactive

changes in the election law, numerous amendments to the provisions

of the Constitution…………….10

The learned author saw at least three distinct phases of

3emergency which witnessed the above mentioned developments that

took place from 1975 and March, 1977.I tries to analyze the

reasons for the development of judicial activism in India

During the initial phase, there was “mass transfers” of several

high courts in opposition to the conventions that only the senior

most sitting judge will be appointed as the Chief Justice of India

i.e. the super cession of senior most judges by junior judges.

These were the developments that affected the judiciary, directly.

The rest affected the credibility of the judiciary indirectly.

Thus the major parts of Constitution affected substantially by the10 Upendra Baxi Supra at p.31

19 | P a g e


emergency amendments were the very areas, in the most people then,

and almost all people now, expected a vigorous assertion of

judicial power by the highest court in land. Such assertion of

judicial power has started in the late 1970’s and early 1980’s.

4.4 Factors contributing to the evolution of Judicial

review in India:

The concept of judicial activism can be seen to reflecting form

the trends exemplified by some

decisions and orders of the Supreme Court. They are as under:

The Judiciary since 1973 claims the power to nullify on

substantive grounds, even an Amendment to the Constitution by

amending power if it changes “the basic structure of frame

work of the constitution”. The Concept of judicial control

over the constitution has been evolved by and known to courts

in India only.11

11 Ref to Article “when seed for judicial activism was sowed” by Balakrishnan,The Hindusthan Times, New delhi dated 01-04-96 p.9

20 | P a g e


The un-doubted privileges of the legislature even in respect

of internal proceedings have been brought under the purview

of judicial review.12

Power of Judicial review as exercised by the Supreme Court

and the High Court has been recognized by these courts to be

unalterable “basic structure of Constitution”13

Twenty one High courts, with the Supreme Court at the Apex,

correct the entire gamut of Country’s administration.

The concept of “state” for the purpose of the enforcement of

fundamental rights has been widened by the Successive

Judgments of the supreme court so as to include both public

and Quasi- public authorities

The courts have broadened the scope of “Locus Standi” in the

Public Interest Litigation matters, in the early eighties;

The Supreme court has often resorted to judicial legislation

by virtue of its powers under Article 141 to fill the void

created by the so-called legislative vacuum14

12 Since keshavananda Bharathi Vs. state of Kerala, AIR 1973 SC 1463

13 Indira Nehru Gandhi Vs. Raj narain, (1975) SCC Supp 1, Kihota Hollohon Vs.Zachillu L. (AIR 1993 SC 412), Chandra Kumar vs. Union of India (1997) Sc 1125

14 Such an exercise can be seen by Supreme court in the case Vishaka vs St. of Rajasthan(1997)6 SCC 241 where the three bench judges of Supreme Court headed by Chief Justice Verma, specifically declared that “Some Guidelines should be laid down for the protection of these Rights (of working women against sexualharassments) to fill the legislative vacuum” at p.247

21 | P a g e


There by, in effect the judicial activism is enshrined in the

Constitution of India in following provisions:

4.5 Constitutional Provisions of Judicial Review in

India:

The Constitution of India explicitly establishes the doctrine of

judicial review in several Articles, such as, 13, 32, 131-136,

143, 226 and 246. The doctrine of judicial review is thus firmly

rooted in India, and has the explicit sanction of the

Constitution.

The main object of Article 13 is to secure the Fundamental Rights.

Article 32 and 226 entrusts the roles of the protector and

guarantor of fundamental rights to the Supreme and High Courts.

Article 245 states that the powers of both Parliament and State

legislatures are subject to the provisions of the constitution.

Article 246 (3) ensures the state legislature’s exclusive powers

on matters pertaining to the State list. Article 131-136 entrusts

the court with the power to adjudicate disputes between

individuals, between individuals and the state between the states

and the union but the court may be required to interpret the

provisions of the constitution and the interpretation given by the

Supreme Court becomes the law honored by all courts of the land.

4.6 EMERGENCE OF JUDICIAL REVIEW IN INDIAN JUDICIARY

(with help of some pre-dominant cases)22 | P a g e


Kesavananda Bharati v. State of Kerala

In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 Justice

Khanna said that Judicial Review has become an integral part of

our Constitutional system and if the provisions of the Statutes

are to be found violative of any of the Articles of the

Constitution which is the touchstone for the validity of all

the laws, the Supreme Court and the High Courts are empowered

to strike down the said provisions of the Statutes.

Sajjan Singh vs. state of Rajasthan

Two dissenting judges in Sajjan Singh v. Rajasthan AIR 1965 SC 845

case raised doubts whether the fundamental rights of citizens

could become a plaything of the majority party in Parliament.

The judges had the opinion that the law passed by the

Legislature can be declared void if it violates the Fundamental

Rights.

Minerva Mills v. Union of India

In his minority judgment in Minerva Mills v. Union of India Bhagwati,

J., observed:

“It is the judiciary to uphold the constitution values and to

enforce the constitutional limitations. That is the essence of

the rule of the law, which inter alia requires that ‘the exercise

23 | P a g e


of the powers by the Government it be the legislature or the

executive or any other authority, be conditioned by the

constitution and the law.’ The power of the Judicial Review is

an integral part of the constitution system…. the power of

judicial review…. Part of the basic structure of the

Constitution.”

5. ROLE OF JUDICIAL REVIEW AND FUNDAMENATAL RIGHTS:

5.1 The place of ‘judicial review ’in

Indian Constitution:

In post-independence India, the inclusion of explicit provisions

for‘ judicial review’ were necessary in order to give effect to

the individual and group rights guaranteed in the text of the

Constitution. Dr. B.R. Ambedkar, who chaired the drafting

committee of our Constituent Assembly, had described the provision

related to the same as the ‘heart of the Constitution’.1 Article

13(2) of the Constitution of India prescribes that the Union or

the States shall not make any law that takes away or abridges any

of the fundamental rights, and any law made in contravention of

the aforementioned mandate shall, to the extent of the

contravention, be void.

While judicial review over administrative action has evolved on

the lines of common law doctrines such as ‘proportionality’,

‘legitimate expectation’, ‘reasonableness’ and principles of

natural justice, the Supreme Court of India and the various High

24 | P a g e

http://www.legalserviceindia.com/constitution/const_home.htm


Courts were given the power to rule on the constitutionality of

legislative as well as administrative actions to protect and

enforce the fundamental rights guaranteed in Part III of the

Constitution. The higher courts are also approached to rule on

questions of legislative competence, mostly in the context of

Centre-State relations since Article 246 of the Constitution read

with the 7th schedule, contemplates a clear demarcation as well as

a zone of intersection between the law-making powers of the Union

Parliament and the various State Legislatures.

Hence the scope of judicial review before Indian courts has

evolved in three dimensions – firstly, to ensure fairness in

administrative action, secondly to protect the constitutionally

guaranteed fundamental rights of citizens and thirdly to rule on

questions of legislative competence between the centre and the

states. The power of the Supreme Court of India to enforce these

fundamental rights is derived from Article 32 of the Constitution.

It gives citizens the right to directly approach the Supreme Court

for seeking remedies against the violation of these fundamental

rights.

This entitlement to constitutional remedies is itself a

fundamental right and can be enforced in the form of writs evolved

in common law – such as habeas corpus (to direct the release of a

person detained unlawfully), mandamus (to direct a public

authority to do its duty), quo warranto (to direct a person to

vacate an office assumed wrongfully), prohibition (to prohibit a

25 | P a g e


lower court from proceeding on a case) and certiorari (power of

the higher court to remove a proceeding from a lower court and

bring it before itself). Besides the Supreme Court, the High

Courts located in the various States are also designated as

constitutional courts and Article 226 permits citizens to file

similar writs before the High Courts. With the advent of Public

Interest Litigation (PIL) and dilution of concept of " locus Standi "

in recent decades, Article 32 has been creatively interpreted to

shape innovative remedies such as a ‘continuing mandamus’ for

ensuring that executive agencies comply with judicial directions.

5.2 EXPANSION OF FUNDAMENTAL RIGHTS:

The emergency period and the infamous Habeas corpus constituted

defining moment in history of judicial review in India. The strong

criticism of the judgment gave solid base to judicial review and

was followed by expansion of fundamental rights. Article 21 of the

Constitution of India reads as follows: “No person shall be

deprived of his life or personal liberty except according to

procedure established by law.” The narrow interpretation of this

article in the early years of the Supreme Court in A.K. Gopalan’s

case was changed in Manteca Gandhi’s case. In that decision, it

was held that governmental restraints on ‘personal liberty’ should

be collectively tested against the guarantees of fairness, non-

arbitrariness and reasonableness that were prescribed under

26 | P a g e


Articles 14, 19 and 21 of the Constitution. The Court developed a

theory of ‘inter-relationship of rights’ to hold that governmental

action which curtailed either of these rights should meet the

designated threshold for restraints on all of them. In this

manner, the Courts incorporated the guarantee of “Substantive Due

Process” of U,S.A into the language of Article 21. This was

followed by a series of decisions, where the conceptions of ‘life’

and ‘personal liberty’ were interpreted liberally to include

rights which had not been expressly enumerated in Part III. In the

words of Justice Bhagwati:

“We think that the right to life includes the right to live with

human dignity and all that goes along with it, namely the bare

necessities of life such as adequate nutrition, clothing and

shelter over the head and facilities for reading, writing and

expressing oneself in diverse forms.”

In his work ‘Social Action Litigation: The Indian Express’ Justice

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

27 | P a g e


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.”

Notably, over the decades, the Supreme Court has affirmed that

both the Fundamental Rights and Directive Principles must be

interpreted harmoniously. It was observed in the Kesavananda

Bharati case, that the directive principles and the fundamental

rights supplement each other and aim at the same goal of bringing

about a social revolution and the establishment of a welfare

State, the objectives which are also enumerated in the Preamble to

the Constitution. Furthermore, in Unna Krishnan, J.P. v. State of

Andhra Pradesh, Justice Jevons Reddy declared:

“The provisions of Parts III and IV are supplementary and

complementary to each other and not exclusionary of each other and

that the fundamental rights are but a means to achieve the goal

indicated in Part IV”.

This approach of harmonizing the fundamental rights and directive

principles has been successful to a considerable extent. The

Supreme Court has interpreted the ‘protection of life and personal

28 | P a g e


liberty’ as one which contemplates socio-economic entitlements

especially in public interest cases.

5.3 Milestones of Public Interest Litigation in India:

One of the earliest cases of public interest litigation was

reported as Hussainara Khatoon (I) v. State of Bihar. This case

was concerned with a series of articles published in a prominent

newspaper - The Indian Express which exposed the plight of under

trial prisoners in the state of Bihar. A writ petition was filed

by an advocate drawing the Court’s attention to the deplorable

plight of these prisoners. Many of them had been in jail for

longer periods than the maximum permissible sentences for the

offences they had been charged with. The Supreme Court accepted

the dilution of “locus standi” and allowed an advocate to maintain

the writ petition. Thereafter, a series of cases followed in which

the Court gave directions through which the ‘right to speedy

trial’ was deemed to be an integral and an essential part of the

protection of life and personal liberty. Soon thereafter, two

noted professors of law filed writ petitions in the Supreme Court

highlighting various abuses of the law, which, they asserted, were

a violation of Article 21 of the Constitution. These included

inhuman conditions prevailing in protective homes, long pendency

of trials in court, trafficking of women, importation of children

for homosexual purposes, and the non-payment of wages to bonded

29 | P a g e


laborers among others. The Supreme Court accepted their “locus

standi” to represent the suffering masses and passed guidelines and

orders that greatly ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse, took up the

plight of women prisoners who were confined in the police jails in

the city of Bombay. The Court took cognizance of the matter and

directions were issued to the Director of College of Social Work,

Bombay to visit the Bombay Central Jail and conduct interviews of

various women prisoners in order to ascertain whether they had

been subjected to torture or ill-treatment. Based on his findings,

the Court issued directions such as the detention of female

prisoners only in designated female lock-ups guarded by female

constables and that accused females could be interrogated only in

the presence of a female police official.

Public interest litigation acquired a new dimension – namely that

of ‘epistolary jurisdiction’ with the decision in the case of

Sunil Batra v. Delhi Administration, It was initiated by a letter

that was written by a prisoner lodged in jail to a Judge of the

Supreme Court. The prisoner complained of a brutal assault

committed by a Head Warder on another prisoner. The Court treated

that letter as a writ petition, and, while issuing various

directions, opined that:

30 | P a g e


“…technicalities and legal niceties are no impediment to the court

entertaining even an informal communication as a proceeding for

habeas corpus if the basic facts are found”.

In Municipal Council, Ratlam V. Vardichand, the Court recognized

the "locus standi" of a group of citizens who sought directions

against the local Municipal Council for removal of open drains

that caused stench as well as diseases. The Court, recognizing the

right of the group of citizens, asserted that if the:

"…centre of gravity of justice is to shift as indeed the Preamble

to the Constitution mandates, from the traditional individualism

of "locus stand" to the community orientation of public interest

litigation, the court must consider the issues as there is need to

focus on the ordinary men."

In Parma and Kotare v. Union of India, the Supreme Court accepted

an application by an advocate that highlighted a news item titled

"Law Helps the Injured to Die" published in a national daily, The

Hindustan Times. The petitioner brought to light the procedural

difficulties which came in availing urgent and life-saving medical

treatment to persons injured in road and other accidents. The

Supreme Court directed medical establishments to provide instant

medical aid to such injured people, notwithstanding the

formalities to be followed under the procedural criminal law.

31 | P a g e


The Supreme Court has met the changing needs of society by the

extensive liberalization of the rule of "locus standi” which gave

birth to a flexible public interest litigation system. A powerful

thrust to public interest litigation was given by a 7-judge bench

in the case of S.P. Gupta v. Union of India. The judgment

recognized the "locus stand" of bar associations to file writs by

way of public interest litigation. In this particular case, it

was accepted that they had a legitimate interest in questioning

the executive’s policy of arbitrarily transferring High Court

judges, which threatened the independence of the judiciary.

Explaining the liberalization of the concept of "locus stand", the

court opined:

“It must now be regarded as well-settled law where a person who

has suffered a legal wrong or a legal injury or whose legal right

or legally protected interest is violated, is unable to approach

the court on account of some disability or it is not practicable

for him to move the court for some other sufficient reasons, such

as his socially or economically disadvantaged position, some other

person can invoke the assistance of the court for the purpose of

providing judicial redress to the person wronged or injured, so

that the legal wrong or injury caused to such person does not go

un- redressed and justice is done to him.”

32 | P a g e


The unique model of public interest litigation that has evolved in

India not only looks at issues like consumer protection, gender

justice, prevention of environmental pollution and ecological

destruction, it is also directed towards finding social and

political space for the disadvantaged and other vulnerable groups

in society. The Courts have given decisions in cases pertaining to

different kinds of entitlements and protections such as the

availability of food, access to clean air, safe working

conditions, political representation, affirmative action, anti-

discrimination measures and the regulation of prison conditions

among others.

For instance, in People’s Union for Democratic Rights v. Union of

India, a petition was brought against governmental agencies which

questioned the employment of underage laborers and the payment of

wages below the prescribed statutory minimum wage-levels to those

involved in the construction of facilities for the then upcoming

Asian Games in New Delhi. The Court took serious exception to

these practices and ruled that they violated constitutional

guarantees. The employment of children in construction-related

jobs clearly fell afoul of the constitutional prohibition on child

labor and the non-payment of minimum wages was equated with the

extraction of forced labor. Similarly, in Bandhua Mukti Morcha v.

Union of India, the Supreme Court’s attention was drawn to the

33 | P a g e


widespread incidence of the age-old practice of bonded labor which

persists despite the constitutional prohibition. Among other

interventions, one can refer to the Shriram Food & Fertilizer case

where the Court issued directions to employers to check the

production of hazardous chemicals and gases that endangered the

life and health of workmen. It is also through the vehicle of PIL,

that the Indian Courts have come to adopt the strategy of awarding

monetary compensation for constitutional wrongs such as unlawful

detention, custodial torture and extra-judicial killings by state

agencies.

An important step in the area of gender justice was the decision

in Vishaka v. State of Rajasthan. The petition in that case

originated from the gang-rape of a grassroots social worker. In

that opinion, the Court invoked the text of the Convention for the

Elimination of all forms of Discrimination Against Women (CEDAW)

and framed guidelines for establishing Redressal mechanisms to

tackle sexual harassment of women at workplaces. The decision came

under considerable criticism for encroaching into the domain of

the legislature. It must be remembered that meaningful social

change, like any sustained transformation, demands a long-term

engagement. Even though a particular petition may fail to secure

relief in a wholesome manner or be slow in its implementation,

litigation is an important step towards systemic reforms.

34 | P a g e


5.4 Public cause litigation:

However, over the years, the social action dimension of PIL has

been diluted and eclipsed by another type of “public cause

litigation” in courts. In this type of litigation, the court’s

intervention is not sought for enforcing the rights of the

disadvantaged or poor sections of the society but simply for

correcting the actions or omissions of the executive or public

officials or departments of government or public bodies. Examples

of this type of intervention by the Court are innumerable. A

recent example of this approach was the decision in People’s Union

for Civil Liberties v. Union of India, where the Court sought to

ensure compliance with the policy of supplying mid-day meals in

government-run primary schools. There had been widespread reports

of problems in the implementation of this scheme such as the

pilferage of food grains. As a response to the same, the Supreme

Court issued orders to the concerned governmental authorities in

all States and Union Territories, while giving elaborate

directions about the proper publicity and implementation of the

said scheme. The apex Court has also championed the cause of

pavement dwellers in Olga Telis vs. Bombay Municipal Corporation.35 | P a g e


In the realm of environmental protection, many of the leading

decisions have been given in actions brought by renowned

environmentalist M.C. Mehta viz., strict liability for the leak of

Oleum gas from a factory in New Delhi, directions to check

pollution in and around the Ganges river, the relocation of

hazardous industries from the municipal limits of Delhi,

directions to state agencies to check pollution in the vicinity of

the Taj Mahal and several afforestation measures. A prominent

decision was made in a petition that raised the problem of

extensive vehicular air pollution in Delhi. The Court was faced

with considerable statistical evidence of increasing levels of

hazardous emissions on account of the use of diesel as a fuel by

commercial vehicles. The Supreme Court decided to make a decisive

intervention in this matter and ordered government-run buses to

shift to the use of Compressed Natural Gas (CNG), an environment-

friendly fuel. This was followed some time later by another order

that required privately-run ‘autorickshaws’ (three-wheeler

vehicles which meet local transportation needs) to shift to the

use of CNG. At the time, this decision was criticized as an

unwarranted intrusion into the functions of the pollution control

authorities, but it has now come to be widely acknowledged that it

is only because of this judicial intervention that air pollution

in Delhi has been checked to a substantial extent.

36 | P a g e


Another crucial intervention was made in Council for Environment

Legal Action v. Union of India, wherein ‘Polluter Pays’ principle

was evolved. In S.Jagannath V.UOI the Supreme Court gave

directions to tackle ecological degradation in coastal areas. In

recent years, the Supreme Court has taken on the mantle of

monitoring forest conservation measures all over India, and a

special ‘Green bench’ has been constituted to give directions to

the concerned governmental agencies to maintain judicial

supervision in order to protect our ecological resources from

rampant encroachments and administrative apathy.

In the interest of public the Supreme Court has given directions

for parking charges, wearing of helmets in cities, cleanliness in

housing colonies, disposal of garbage, control of traffic in New

Delhi, made compulsory the wearing of seat belts, ordered action

plans to control and prevent the monkey menace in cities and

towns, ordered measures to prevent accidents at unmanned railway

level crossings, prevent ragging of college freshmen, for

collection and storage of blood in blood banks, and for control of

loudspeakers and banning of fire crackers.

In recent orders, the Supreme Court has directed the most complex

engineering of interlinking rivers in India. The Court has passed

orders banning the pasting of black film on automobile windows. On

its own, the Court has taken notice of Baba Ramdev being forcibly

37 | P a g e


evicted from the Ramlila grounds by the Delhi Administration and

censured it. The Court has ordered the exclusion of tourists in

the core area of tiger reserves. All these managerial exercises by

the Court are hung on the dubious jurisdictional peg of enforcing

fundamental rights under Article 32 of the Constitution. In

reality, no fundamental rights of individuals or any legal issues

are at all involved in such cases. The Court is only moved for

better governance and administration, which does not involve the

exercise of any proper judicial function.

In its most activist and controversial interpretation of the

Constitution, the Supreme Court took away the constitutionally

conferred power of the President of India to appoint judges after

consultation with the Chief Justice, and appropriated this power

in the Chief Justice of India and collegiums of four judges. In no

Constitution in the world is the power to select and appoint

judges conferred on the judges themselves.

The PIL has proved to be a strong and patent weapon in the hand of

the court enabling it to unearth many scans and corruption cases

in public life and to punish the guilty involved in those scams.

Hadaka scam, urea scam, fodder scam in Bihar,

38 | P a g e


St. kit's scam, Ayurvedic Medicines scam and illegal Allotment of

government Houses and petrol pumps and the recent prosecution of

the Telecom Minister and officials in the 2G Telecom scam case by

the Supreme Court have come to light through the public interest

litigation, certain social organization and public spirited

individuals filed a writ petitions in the Supreme Court and High

Courts by way of public litigation requesting court to inquire and

punish those who are found guilty of by passing laws of the

country and misusing their official positions in public life. In

the 2G Licenses case, the Court held that all public resources and

assets are a matter of public trust and they can only be disposed

of in a transparent manner by a public auction to the highest

bidder. This has led to the President making a Reference to the

Court for the Court’s legal advice under Article 143 of the

Constitution. In the same case, the Court set aside the expert

opinion of the Telecom Regulatory Authority of India (TRAI) to

sell 2G spectrum without auction to create greater tele density in

India. The Court is made the monitor of the conduct of

investigating and prosecution agencies who are perceived to have

failed or neglected to investigate and prosecute ministers and

officials of government.

In this context I would like to analyze two important cases as the

recent trends and major developments in the field of Judicial

Activism. They are:

39 | P a g e


Illegal mining at ARAVALI mountains

Common cause Vs Union of India.

5.4.1 Illegal Mining at Aravali Range and Judicial

Activism:

Most distinctive and ancient mountain chain of peninsular

India, mark the site of one of the oldest geological

formations in the world.

Heavily eroded and with exposed outcrops of the slate rock

and granite, it has summits reaching 4950 feet above sea

level.

A large number of activities, operations of stone crushers

and deforestation besides other activities are causing

environmental degradation.

These mines are usually located in the clusters in remote

mineral rich districts/areas where living standards is tower

and understanding of people towards environmental impact is

also poor.

The mining brings extensive alteration in the natural tend

profile of the area.

The mining wastes is being discharged into the surrounding

channels of water, leading to ‘wastage’ of groundwater

40 | P a g e


In May 1992, parts of the Aravalli range were declared

ecologically sensitive under the Environment (Protection)

Act.

In August 1992, the Forest Department of Haryana had issued a

notification under the Punjab Land Preservation Act 1900,

banning the clearing and breaking up the land not under

cultivation, quarrying of stone, in the Badkal and Pali area.

In 1996, the Honorable Supreme Court banned all mining

activity within 2 kms of the Badkal and Surajkund tourist

resorts and ordered to stop all mining activities and pumping

of ground water in and from area up to 5 kms from Delhi-

Haryana border in the Haryana side of the Ridge.

It was also ordered that mining leases within the area from 2

km to 5 km radius should not be renewed without obtaining no-

objection certificates from the Haryana Pollution Control

Board as also the Central Pollution Control Board (CPCB).

The Apex Court banned mining on May 6, 2002, in Aravalli

Ranges after it found that illegal mining was going in the

range damaging the ecology of the area.

5.4.2 COMMON CAUSE Vs UNION OF INDIA AIR 1996 SC 1619 Common Cause, an organization that involves itself invarious matters of public interest, filed a public interest

petition pursuant to Article 32 of the Constitution of India in an

41 | P a g e


effort to bring transparency in various public interests

litigation

In Common Cause Vs Union of India15, a petition was filed under Article

32 of the Constitution stating the certain provisions of the

Consumer Protection Act, 1986 had not been implemented and

failed to establish certain District Forums and State

commissions. The Supreme Court issued orders so as to establish

Redressal machinery under Consumer protection Act, 1986 in a

series of directions. This view also tries to emphasis on the

point that the Supreme Court is not only exercising the

continuous monitoring but also in seeing the directions are

implemented duly.

In Common Cause Vs Union of India16 in response to a PIL filed, A

Division of Bench of the Supreme Court took cognizance of serious

Deficiencies and short comings in the matter of the collection,

storage and supply of blood through various blood centers. The

Supreme Court issued directions which include:

Establish a National Council for Blood Transfusion

To impart skilled training to the Technical professional

15 1989 (2) Scale 98 (541)

16 1996 1 SCC 753

42 | P a g e


Conduct research

Discourage prevailing method of professional donors

To offer certain special training sessions and graduation

courses for blood collection, processing and storing.

5.5 Military Operation:

The Supreme Court has made an order even in a military

operation. In 1993, the Court issued orders on the conduct of

military operations in Hazratbal shrine, Kashmir where the

military had as a matter of strategy restricted the food supplies

to hostages. The Court ordered that the provision of food of 1,200

calorific value should be supplied to hostages. Commenting on

this, an Army General wrote: “For the first time in history, a

Court of Law was asked to pronounce judgment on the conduct of an

ongoing military operation. Its verdict materially affected the

course of operation.”

5.6 Legislative proceedings:

Even proceedings of Legislatures are controlled by the Court. In

the Jharkhand Legislative Assembly case, the Supreme Court ordered

the Assembly to conduct a Motion of Confidence and ordered the

Speaker to conduct proceedings according to a prescribed agenda

and not to entertain any other business. Its proceedings were

43 | P a g e


ordered to be recorded for reporting to the Court. These orders

were made in spite of Article 212 of the Constitution which states

that Courts are not to inquire into any proceedings of the

legislature.

6. IMPLICATIONS OF JUDICIAL REVIEW ON INDIAN JUDICIARY:

The landscape of recent Supreme Court rulings offers some

interesting insights into the metamorphosis of judicial activism

in India.17 Most strikingly, the Supreme Court recently issued a

notice to the Union government seeking an explanation of the steps

taken by it to ameliorate the plight of Indian students in

Australia, who have been facing racially motivated attacks.

Foreign policy is widely considered to be non-justifiable, that

is, courts cannot interfere. Yet, the interference by Indian

courts has not wholly been condemned. The next, and almost equally

striking, instance is a Supreme Court notice questioning the

proliferation of Mayawati statues, allegedly worth crores of

rupees, in Uttar Pradesh. Like foreign policy, budgetary

allocations (butter, guns or statues?) are non-justifiable. But

judicial interference in this matter too has not been deprecated,

nor is it worthy of serious censure.

However, judicial activism in India has now taken on an

interesting face. The courts in India pursue a form of review

17 http://www.hindu.com/2009/07/18/stories/2009071852820800.htm

44 | P a g e

http://www.hindu.com/2009/07/18/stories/2009071852820800.htm


which can be described at best as ‘dialogic’ — a term used

famously by Peter Hogg and Allison Bushell in the context of the

Canadian Supreme Court’s decisions. The Indian Supreme Court’s

gaze has now gone beyond the protection of the socially and

economically downtrodden, and into the realm of public

administration. However, its opinions often resemble aspirations

rather than binding pronouncements. For example, the Supreme Court

issued guidelines in 2006 to reform the police administration –

which is a State subject on which only the State Assemblies can

legislate. Similar guidelines have been issued increasingly in

legislative spheres. Because of these opinions, at least in

theory, employers must now act against sexual harassment at the

workplace, banks must be prudent in their use of recovery agents,

and police officers must follow procedures prior to an arrest,

mildly similar to the American Miranda rights. (In India, they

could perhaps be called ‘Basu’ rights, considering D.K. Basu v. State of

West Bengal, 1986).

In the 2G Licenses case, the Court held that all public resources

and assets are a matter of public trust and they can only be

disposed of in a transparent manner by a public auction to the

highest bidder. 18 This has led to the President making a Reference

to the Court for the Court’s legal advice under Article 143 of the

Constitution. In the same case, the Court set aside the expert

18 http://indialawyers.wordpress.com/2012/08/06/disturbing-trends-in-judicial-activism/

45 | P a g e

http://indialawyers.wordpress.com/2012/08/06/disturbing-trends-in-judicial-activism/

http://indialawyers.wordpress.com/2012/08/06/disturbing-trends-in-judicial-activism/


opinion of the Telecom Regulatory Authority of India (TRAI) to

sell 2G spectrum without auction to create greater tele-density in

India.

The Court has for all practical purposes disregarded the

separation of powers under the Constitution, and assumed a general

supervisory function over other branches of governments. The

temptation to rush to the Supreme Court and High Courts for any

grievance against a public authority has also deflected the

primary responsibility of citizens themselves in a representative

self government of making legislators and the executive

responsible for their actions. The answer often given by the

judiciary to this type of overreach is that it is compelled to

take upon this task as the other branches of government have

failed in their obligations. On this specious justification, the

political branches of government may, by the same logic, take over

the functions of the judiciary when it has failed, and there can

be no doubt that there are many areas where the judiciary has

failed to meet the expectations of the public by its inefficiency

and areas of cases.

Justice Jackson of the U.S. has aptly said: “The doctrine of judicial

activism which justifies easy and constant readiness to set aside decisions of other

branches of Government is wholly incompatible with a faith in democracy and in so far it

46 | P a g e


encourages a belief that judges should be left to correct the result of public indifference it

is a vicious teaching.” Unless the parameters of PIL are strictly

formulated by the Supreme Court and strictly observed, PIL which

is so necessary in India, is in danger of becoming diffuse,

unprincipled, encroaching into the functions of other branches of

government and ineffective by its indiscriminate use.

In recent orders, the Supreme Court has directed the most complex

engineering of interlinking rivers in India. 19The Court has passed

orders banning the pasting of black film on automobile windows. On

its own, the Court has taken notice of Baba Ramdev being forcibly

evicted from the Ramlila grounds by the Delhi Administration and

censured it. The Court has ordered the exclusion of tourists in

the core area of tiger reserves. All these managerial exercises by

the Court are hung on the dubious jurisdictional peg of enforcing

fundamental rights under Article 32 of the Constitution. In

reality, no fundamental rights of individuals or any legal issues

are at all involved in such cases. The Court is only moved for

better governance and administration, which does not involve the

exercise of any proper judicial function.

On the other hand in its activist and controversial interpretation

of the Constitution, the Supreme Court took away the

constitutionally conferred power of the President of India to

19 http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece

47 | P a g e

http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece

http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece


appoint judges after consultation with the Chief Justice, and

appropriated this power in the Chief Justice of India and

collegiums of four judges. In no Constitution in the world is the

power to select and appoint judges conferred on the judges

themselves.

The Court is made the monitor of the conduct of investigating and

prosecution agencies who are perceived to have failed or neglected

to investigate and prosecute ministers and officials of

government. Cases of this type are the investigation and

prosecution of ministers and officials believed to be involved in

the Jain Hawala case, the fodder scam involving the former Chief

Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case

involving the former Chief Minister of Uttar Pradesh, Mayawati,

and the recent prosecution of the Telecom Minister and officials

in the 2G Telecom scam case by the Supreme Court.

7. CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW IN

INDIA:The Indian Constitution adopted the Judicial Review on lines of US

Constitution. Parliament is not supreme under the Constitution of

India. Its powers are limited in a manner that the power is

divided between centre and states. Moreover the Supreme Court

enjoys a position which entrusts it with the power of reviewing

legislative enactments both of Parliament and the State

48 | P a g e


legislatures. This grants the court a powerful instrument of

judicial review under the constitution.

Both the political theory and text of the Constitution has granted

the judiciary the power of judicial review of legislation. The

constitutional provisions which guarantee judicial review of

legislations are articles 13, 32,131-136,143,145,226,246,251,254

and 372.

Article 13 establishes that any law which contravenes any of

the provisions of the part of Fundamental Rights shall be

void.

Article 372 establishes the judicial review of the pre-

constitution legislation.

Article 32 and 226 entrusts the roles of the protector and

guarantor of fundamental rights to the Supreme and High

Courts.

Article 246 (3) ensures the state legislature’s exclusive

powers on matters pertaining to the State list.

Article 245 states that the powers of both Parliament and

State legislatures are subject to the provisions of the

constitution. The legitimacy of any legislation can be

challenged in the court of law on the ground that the

legislature is not competent enough to pass a law on that

particular subject matter the law is repugnant to the

49 | P a g e


provisions of the constitution or the law infringes one of the

fundamental rights.

Article 131-136 entrusts the court with the power to

adjudicate disputes between individuals, between individuals

and the state between the states and the union but the court

may be required to interpret the provisions of the

constitution and the interpretation given by the Supreme Court

becomes the law honored by all courts of the land.

8. CRITISISMS:

The opponents of judicial review are generally the supporters

of judicial self-restraint. In the History of the U.S

Supreme court, four justices stand out as leading advocates of

judicial restraint. They are Justices Oliver Wendell Holmes, Louis

Brandies, Harlan F. Stone and Felix Frankfurter. They argued that

the power of Supreme Court to declare laws Un-Constitutional

should be used sparingly and that justices of the court must

accord maximum respect to legislative acts. They repeatedly

expressed the opinion that the political process was the best

method to resolve disputes where the values conflicted, and that

is was a contradiction in democracy for oligarchic court to set

itself against the elected legislature or to act in its stead.20

20 Charles M. Lamb : “Judicial Restraint of Supreme Court” in Stephen C. Halpren & Charles M. Lamb (Ed): Supreme Court Activism & Restraint (Massachusetts : Toronto, 1984) pp.7-36- Also see G. Edward White: The

50 | P a g e


The Philosophy of Judicial Restraint is reflected in one of the

early dissents of Justice Holmes, who summed up the essence of

judicial self restraint in propounding his “reasonable man”

thesis. He said, “The court should nullify legislative acts, unless it can be said that

a rational and a fair man necessarily would admit that the statute proposed would

infringe the Fundamental principles as they have been understood by the traditions of

our people and our laws”21

8.1 CRITISISMS IN INDIAN CONTEXT:

The Opposition to Judicial Activism also comes from the

difficulties created in implementation of the directives given by

the court, in the form of some affirmative action. This So-called

affirmative activism may require the court to supervise the

continuous action which affects large number of individuals.

Consequently, it often produces extensive administrative

responsibilities for the court. In the process, the court

formulate controversial programs of affirmative action requiring

detailed administration for protracted periods of time under

American Judicial Tradition (New York: Oxford, 1976) Chaps.8, 10, 14.

21 Lochner Vs. New York, 198 U.S.45 (74) (1904)

51 | P a g e


constant judicial supervision. In India, the continuing monitoring

of “Jain-Hawala-Dairies Scam”, investigation by the supreme Court

in Vineet Narain Vs. UOI 22, by forming a new writ called

“Continuing Mandamus” and the series of positive directions

pertaining to shifting of polluting industries causing damages to

Taj Mahal and their closure23 and banning of the plying of 15 years

old and more than 15 years of old commercial vehicles in the

National Capital Region of Delhi demonstrate this kind of Judicial

Administration which is continuous. This judicial attitude raises

both pragmatic and jurisprudential questions about the limits of

the Judicial Power.

9. CONCLUSION:

The exercise of the power of judicial review has at times

generated controversies and tensions between the courts, the

executive and the legislature. For example the pronouncements in

the aria of the property relations, legislative privileges, and

constitutional amendments have been controversial and have even

led to several constitutional amendments which were undertaken

to undo or dilute judicial rulings which the central Government

did not like. For example the decision given in Shah Bano case the

Supreme Court of India held that Muslim women can claim for

22 1998 Cri. L.J. 1208: AIR 1998 SC 889

23 M.C Mehta Vs. Union of India, AIR 1997 SC 734.

52 | P a g e


maintenance after divorce but central Government passed Muslim

Women’s (Protection of Rights on Divorce) Act, 1986 to dilute

the decision given in Mohd. Ahmad Khan. V. Shah Bano Begum 1985 Cr.

L.J. 875 (SC).

Efforts have been made in India to curtail the scope of judicial

review in some constitutional areas. The Law Minister in the

Central Government once stated in Parliament that the courts

had, through their exercise of power of judicial review,

retarded the process of socio-economic development of the

country, and, therefore, he justified certain restrictions on

the powers of the courts to declare laws unconstitutional.

But, in spite of all the hurdles, the doctrine of Judicial

Review has a vibrancy of its own and has even been declared as

the basic features of the Constitution.

The Judiciary cannot take over the functions of the Executive.

The Courts themselves must display prudence and moderation and

be conscious of the need for comity of instrumentalities as

basic to good governance. Judicial activism has to be welcomed

and its implications assimilated in letter and spirit. An

activist Court is surely far more effective than a legal

positivist conservative Court to protect the society against

legislative adventurism and executive tyranny. When our chosen

representatives have failed to give us a welfare state, let it

spring from the Judiciary.

53 | P a g e


The power of judicial review is recognized as part of the basic

structure of the Indian Constitution. The activist role of the

Judiciary is implicit in the said power. Judicial activism is a

sine qua non of democracy because without an alert and enlightened

judiciary, the democracy will be reduced to an empty shell.

Judicial activism in its totality cannot be banned. It is

obvious that under a constitution, a fundamental feature of

which is the rule of law, there cannot be any restraint upon

judicial activism in matters in which the legality of executive

orders and administrative actions is questioned. The courts are

the only forum for those wronged by administrative excesses and

executive arbitrariness.

Judicial activism is not an aberration. It is an essential

aspect of the dynamics of a constitutional court.24 It is a

counter-majoritarian check on democracy. Judicial activism,

however, does not mean governance by the judiciary. Judicial

activism must also function within the limits of the judicial

process.

The judiciary is the weakest body of the state. It becomes

strong only when people repose faith in it.25 Such faith

24 S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001)

25 http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1443&context=wujlp

54 | P a g e

http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1443&context=wujlp

http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1443&context=wujlp


constitutes the legitimacy of the Court and of judicial

activism. Courts must continuously strive to sustain their

legitimacy. Courts do not have to bow to public pressure, but

rather they should stand firm against public pressure. 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 only

be fair, they must appear to be fair. Such inarticulate and

diffused consensus about the impartiality and integrity of the

judiciary is the source of the Court’s legitimacy.

Take away judicial activism and tyranny will step in to fill the

vacant space.

So to sum up the judicial activism in India, it will be very

appropriate to quote the words of Dr. A.S. Anand, Chief Justice

of India who said :

"…. the Supreme Court is the custodian of the Indian

Constitution and exercises judicial control over the acts of

both the legislature and the executive."

I would like to conclude by stating that the Courts are not

above the Constitution and must be conscious of the conscience

of the Preamble.

55 | P a g e


10. BIBLIOGRAPHY:

Lokendra Malik (editor),Judicial Activism in India: A

Festschrift in Honor of Justice V.R. Krishna Iyer.

Universal Law Publishing Co., 2013 (Ed)

S.P Sathe, Judicial Activism in India. Oxford University

Press, 2nd Edition,2002.

Dr. G.B. Reddy, Judicial Activism in India. Gogia Law

Agency, 2nd Edition, 2013

Honorable Mr. K.G. Bala krishnan, Ex-Chief Justice of India

“JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION” Trinity College

Dublin, Ireland – October 14, 2009

Mr. Surya Deva, “Public Interest Litigation in India: A Critical Review”.

Sweet & Maxwell, London, NW3 3PF

Mr. R.Shanmuga Sundaram, “Judicial Activism and Overreach in India”.

Amicus Curiae Issue 72 Winter 2007

Dr. Srigouri Kosuri, “Social Activism as Judicial Activism”. Vol.1

Issue:4 ,Sept 2012.

http://www.legalservicesindia.com

http://en.wikipedia.org/wiki/Judicial_activism 56 | P a g e

http://en.wikipedia.org/wiki/Judicial_activism

http://www.legalservicesindia.com/


http://www.preservearticles.com/

http://www.slideshare.net/

http://www1.umn.edu/

http://www.sociologyguide.com/

http://www.yourarticlelibrary.com/

57 | P a g e

http://www.yourarticlelibrary.com/

http://www.sociologyguide.com/

http://www1.umn.edu/

http://www.slideshare.net/

http://www.preservearticles.com/

JUDICIAL ACTIVISM-CRITICAL ANALYSIS

Documents

Transcript of JUDICIAL ACTIVISM-CRITICAL ANALYSIS