DR.
RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY, LUCKNOW
2019-2020
PROJECT
BASICS OF LEGISLATION
“JUDICIAL ACTIVISM (SPECIAL REFERENCE TO INDIA)”
Submitted TO: Submitted BY:
DR. SHASHANK SHEKHAR Sudhanshu tewari
(ASSISTANT PROFESSOR ) Enrollment No- 190101158
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Acknowledgement
I have taken a lot of efforts for this project. However this would have not been
possible without the kind support and help of many individuals. I would like to
express my sincere thanks to all of them.
I express my deep gratitude towards my teacher for the subject DR. Shashank
Shekhar for giving me her exemplary guidance, monitoring and constant
encouragement throughout the project.
My thanks and appreciations also go to my colleague in developing the project and
people who willingly helped me out with their abilities.
Sudhanshu Tewari
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TABLE OF CONTENT
1) Introduction………………………………….4
2) History and origin of judicial Activism……...5
3) First case of Judicial Activism……………….6
4) Judicial Activism in USA……….……………7
5) Judicial Activism in UK……………………...7
6) Judicial Activism in India…………………….8
7) Judicial Activism vs Judicial restrain………...13
8) Cases related to Judicial Activism……………15
9) Criticisms……………………………………..17
10) Conclusion……………………………………18
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INTRODUCTION
Judicial activism describes judicial rulings suspected of being based on personal or
political considerations rather than on 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
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.
3
Judicial 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.
HISTORY AND ORIGIN OF JUDICIAL ACTIVISM
1
<http://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
3
< http://definitions.uslegal.com/j/judicial-activism/>
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Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947
Fortune magazine article titled "The Supreme Court: 1947” Schlesinger organized
the sitting Supreme Court justices into two categories: proponents of judicial
activism and proponents of judicial restraint. The “judicial activists” on the bench
believed that politics play a role in every legal decision. In the voice of a judicial
activist, Schlesinger wrote: "A wise judge knows that political choice is
inevitable; he makes no false pretense of objectivity and consciously exercises
the judicial power with an eye to social results."
Schlesinger famously did not take an opinion on whether judicial activism is
positive or negative. In the years following Schlesinger’s article, "judicial activist"
was often used as a negative term. Both sides of the political aisle used it to
express outrage at rulings that did not find in favor of their political aspirations.
Judges could be accused of “judicial activism” for even slight deviations from the
accepted legal norm.4
FIRST CASE OF JUDICIAL ACTIVISM
4
< https://www.thoughtco.com/judicial-activism-definition-examples-4172436>
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The first landmark judgment in this regard was the case of Marbury v. Madison
that paved the way for judicial opposition to the legislative omnipotence. In this
case, for the first time the judiciary took an active step and took a step above the
legislative actions. Marbury was appointed judge under the Judiciary Act of 1789
by the U.S. 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 of the Supreme Court
having been appointed by the outgoing President, who lost the 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 147 Court to review the actions of the
Congress and the executive, chief justice Marshall declined the relief on the ground
that Section 13 of the Judiciary Act of 1789, which was the foundation for 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 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.
JUDICIAL ACTIVISM IN USA
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"Judicial activism" is when judges substitute their own political opinions for the
applicable law, or when judges act like a legislature (legislating from the bench)
rather than like a traditional court. The cradle of judicial activism is the USA.
However, it is seen in many other countries, such as the UK and Israel, along with
a large number of countries that legalized social taboos simply because of court
actions.5 Judicial activism is a type of judicial review, and origin of judicial review
is very evident in USA in and before their 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.
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.
JUDICIAL ACTIVISM IN INDIA
5
< https://www.conservapedia.com/Judicial_activism>
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The Supreme Court of India (Hindi: भारत का सर्वोच्च न्यायालय) is the highest judicial
forum and the final court of appeal of India, established under Constitution of
India, according to which the Supreme Court is the highest constitutional court and
acts as the guardian of Constitution. India has an integrated and yet independent
judiciary.
Since independence, the judiciary has played a very active role in dispensing
justice since the A K Gopalan vs. State of Madras case (1950) followed by
the Shankari Prasad case, etc. However, the judiciary remained submissive until
the 1960s but its assertiveness started in 1973 when Allahabad High Court rejected
the candidature of Indira Gandhi. The introduction of public interest litigation by
Justice V.R. Krishna Iyer further expanded its scope.6
India has a recent history of judicial activism, originating after the emergency in
India which saw attempts by the Government to control the judiciary. Public
Interest Litigation was thus an instrument devised by the courts to reach out
directly to the public, and take cognizance though the litigant may not be the
victim. "Suo moto" cognizance allows the courts to take up such cases on its own.
The trend has been supported as well criticized.
CONSTITUTIONAL PROVISIONS: Under the Indian Constitution, the
State is under the prime responsibility to ensure justice, liberty, equality and
fraternity in the country. State is under the obligation to protect the
individuals’ fundamental rights and implement the Directive Principles of
State Policy. In order to restrain the State from escaping its responsibilities,
the Indian Constitution has conferred inherent powers, of reviewing the
State’s action, on the courts. In this context, the Indian judiciary has been
considered as the guardian and protector of the Indian Constitution.
6
< https://en.wikipedia.org/wiki/Judicial_activism_in_India>
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Considering its constitutional duty, the Indian judiciary has played an active
role, whenever required, in protecting the individuals’ fundamental rights
against the State’s unjust, unreasonable and unfair actions/inactions. Article
13 read with Articles 32 and 226 of the Indian Constitution gives the power
of judicial review to the higher judiciary to declare, any legislative,
executive or administrative action, void if it is in contravention with the
Constitution. The power of judicial review is a basic structure of the Indian
Constitution. . 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.7
PLACE OF JUDICIAL REVIEW IN CONSTITUTION: In post-
independence India, the inclusion of explicit provisions for ‘judicial review’
was 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’. 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
7
Prof. Dr. Nishtha Jaswal , Dr. Lakhwinder Singh, ‘JUDICLA ACTIVISIM IN INDIA’ PL 1,2
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‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of
natural justice, the Supreme Court of India and the various High 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.
Judicial activism and shift from locus standi to public interest litigation:
Access to justice is a fundamental aspect of rule of law. If the justice is not
accessible to all, establishment of the rule of law is not possible. The
individuals fail to reach justice system due to various reasons including lack
of basic necessities, illiteracy, poverty, discrimination, privacy, poor
infrastructure of the justice system, etc. The Supreme Court of India has
recognized in many landmark judgments that access to justice is a
fundamental right. Indian Judiciary has played an active role in ensuring
access to justice for the indigent persons, members belonging to socially and
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educationally backward classes, victims of human trafficking or victims of
beggar, transgender, etc. Since Independence, the Courts in India have been
adopting innovative ways for redressing the grievances of the disadvantaged
persons. In many cases, the Supreme Court exercised its epistolary jurisdiction
and took suo moto actions on mere postal letters disclosing the human rights
violations in society. Human rights violations, which published in the
newspapers, were taken into judicial consideration. The court entertains the
petitions which are being filed by the public spirited persons in the public
interest. By doing so, the superior courts have liberated themselves from the
shackles of the principle of locus standi and given the birth to the Public
interest litigation in India. The shift from locus standi to public interest
litigation made the judicial process “more participatory and democratic.”
The Supreme Court in People’s Union for Democratic Rights v. Union of
India8 held that public interest litigation is different from the traditional
adversarial justice system. The court said that public interest litigation is
intended to promote public interest. Public interest litigation has been
invented to bring justice to poor and socially or economically disadvantaged
sections of the society. The violations of constitutional or legal rights of such
large number of persons should not go unnoticed. In Fertilizer Corporation
Kamgar Union v. Union of India,9 the court held that public interest litigation
is part of the participative justice. Furthermore, the Supreme Court in Bandhua
Mukti Morcha v. Union of India10 has justified the public interest litigation on
the basis of “vast areas in our population of illiteracy and poverty, of social
8
(1982) 3 S.C.C. 235
9
A.I.R. 1981 S.C. 344
10
A.I.R. 1984 S.C. 802
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and economic backwardness, and of an insufficient awareness and
appreciation of individual and collective rights”.11
JUDICIAL ACTIVISM VS JUDICIAL RESTRAIN
In Judicial activism judges are able to use their powers as judges in order to
correct a constitutional legal injustice. In the matter of judicial activism, the judges
11
Prof. Dr. Nishtha Jaswal , Dr. Lakhwinder Singh, ‘JUDICLA ACTIVISIM IN INDIA’ PL 4,5
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have a great role in creating social policies in many different areas, especially the
protection of civil rights and rights of the individual and public morality, on the
other hand Judicial restraint is a theory of judicial interpretation that
encourages judges to limit the exercise of their own power. It asserts that judges
should hesitate to strike down laws unless they are obviously unconstitutional,
though what counts as obviously unconstitutional is itself a matter of some
debate. Judicial restraint is sometimes regarded as the opposite of judicial activism.
In deciding questions of constitutional law, judicially restrained jurists go to great
lengths to defer to the legislature. Judicially restrained judges respect stare decisis,
the principle of upholding established precedent handed down by past judges. This
doctrine states how domestic courts will abstain from passing judgment over the
acts of a foreign sovereign done in its own territory.
JUDICIAL RESTRAINT- Proponent of this believes that judiciary’s power
of review should not be used except in unusual cases. They specifically
believe that review of laws that has the effect of expanding or limiting the
understanding of constitutional rights are too important to be described by
courts unless absolutely necessary. As such, any case that requires analysis
and interpretation as to the extent of rights afforded under the constitution
are to be avoided if there is another legal basis for a decision.
JUDICIAL ACTIVISM- Proponent of this support the use of the judiciary’s
power of review. They believe that judicial interpretation of laws is the
appropriate vehicle for developing legal standards and should be used
whenever justified by the need of society or public sentiments.
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CASES RELATED TO JUDICIAL ACTIVISM
Following are some prominent cases in which judicial activism is evident:
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In Maneka Gandhi v /s Union of India case, the court recited the term
'procedure established by law' under Article 21 of the Constitution by
repositioning it as 'due process of law' which means the procedure which is
established by the law must be just, fair and reasonable.
In the case of Vishakha v/s State of Rajasthan, the court laid down guidelines
for protection of women from sexual harassment at workplace.
Reforms in Cricket: The Supreme Court is trying its best to restructuring
the Board for the Control of Cricket in India (BCCI). This is surprising since
the BCCI is a private body. The Supreme Court had set up Mudgal committee
and the Lodha Panel to investigate the betting charges and suggest reforms. Later
the Supreme court has dismissed BCCI officials for not adhering to the
suggested reforms.
In Olga Telis v/s Union of India, the court said that the outlines of Article
21 which provides right to life also include itself the Right to livelihood as well
as shelter.
The Supreme Court had issued a notice to Arunachal Pradesh governor
Jyoti Prasad Rajkhowa, which was recalled later. This decision was taken under
Article 361, according to which the governor and the President are not
answerable to any court in the exercise of powers and duties of the office. Their
conduct can still be reviewed by the court.
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The Supreme Court Advocate on Record Association v/s Union of
India which is known as the Second Judges Case is an example of Judicial
Creativity. The term 'consultation' as 'concurrence' under Article 124 of the
Constitution of India in the cases of appointment of Judges.
SIT on Black money: The Supreme Court ordered the UPA government to
set up SIT to investigate black money. Though the UPA government did not take
action on this judgment the NDA government has now fulfilled the task.
CRITICISMS
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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 constant judicial supervision. In
India, the continuing monitoring of “Jain-Hawala-Dairies Scam”, investigation by
the supreme Court in Vineet Narain Vs. UOI 12, 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 closure13 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.
CONCLUSION
12
1998 Cri. L.J. 1208: AIR 1998 SC 889
13
M.C Mehta Vs. Union of India, AIR 1997 SC 734.
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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. 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. 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.
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