CHAPTER-1

INTRODUCTION

“A Constitution states or ought to state not law for the passing hour,
but principles for an expanding future”1

[1.1] PRELUDE

Deliverance of justice has always been a demanding task and will forever remain so.
Larger the population of a country, the greater the magnitude of the task. India with more
than a billion populations has a huge variety of cultures, diverse languages, and religions.
This composes the task even more difficult. It is akin to walking on a tight rope; a wrong
foot is enough for sending the whole country into chaos. Nations’ administrators’
overlapping powers tend to cause few critical concerns in this particular matter.

After the Parliamentary government’s British model, Indian democracy was established.
The people’s will was also represented by it.2 In each government, there exist three
different pillars of function with whose help people’s will is stated. They are the
government’s Judicial, Executive and Legislative pillars. The state’s Legislative body is
in charge of making the laws; the Executive body ensures the enforcement of laws; while
the Judiciary is responsible for their application to particular cases that arise through the
law’s breach. However, even when acting inside the scope of their powers, often
overlapping of functions tends to arise between them.3

The ‘Separation of powers’4 principle (which is noticeable by Locke and Aristotle’s

writings. However, French philosopher, Montesquieu5, is owed for these principles)
acknowledged in their true form, specified that Constitution’s every organ must be
operated within its domain as well as their functioning must not be overlapped.
Furthermore, it does make an effort in bringing exclusivity in three organs’ functioning,
along with powers’ precise demarcation. Also, this is well known that for a stable
1
Benjamin N. Cardozo, The Nature Of The Judicial Process (Yale University Press, New Haven, 1977).”
2
INDIA CONST. Preamble.
3
M. J. C. Vile, Constitutionalism And Separation Of Powers (Liberty Fund Inc., Indianapolis, 2nd ed.,
1967).”
4
C.K.Thakker, Administrative Law 31 (Eastern Book Company, 1992).”
5
Charles de Secondat, Baron de Montesquieu, The Spirit of Law (French: De l’esprit des lois) (1748).”

1
political system, the requirement for power-bearers to be balanced as compared to one
another. The Indian Constitution’s creators never had the intention of adopting such a
principle in its complete form. Instead, over the absolute Parliamentary sovereignty’s
British doctrine, limited government’s American doctrine has been preferred by them. 6

This doctrine also state that government’s all three powers should not be implemented by
an individual (or persons’ body).

Montesquieu explained this–

“The accumulation of all powers, legislative, executive and judicial, in the same hands
whether of one, a few, or many and whether hereditary, self-appointed or elective, may
justly be pronounced as the very definition of tyranny.”7

Dr. B.R. Ambedkar clearly stated his views before the Constituent Assembly in his
speech about laying down a system of checks over the Government’s three organs’
authority. He said:

“The purpose of a Constitution is not merely to create the organs of the State but to limit
their authority, because, if no limitation is imposed upon the authority of the organs,
there will be complete tyranny and complete oppression….. It would result in utter
chaos.”8

Analysis of several Constitutional provisions makes it clear that, at least in theory, the
functions of various organs have been differentiated. This has been done to ensure that
no organ encroaches upon the functions of another organ. However, it is not easy to
accurately observe the separation of powers doctrine minus “checks and balances”, this
doctrine’s part (As stated by H.R.Wade, Montesquieu’s objections were – against
monopoly as well as accumulation instead of interactions. Therefore, mutual restraint in
their respective powers’ exercise is the separation of powers’ doctrine soul).9 In India,

6
D. D. Basu, Introduction to the Constitution of India (LexisNexis Butterworths Wadhwa, 20th Edition,
Reprint 2011).”
7
Secondat, supra note 5.
8
C.A.D (Vol. IX) 1659-63.
9
I. P Massey, Administrative Law 38 (Eastern Book Company, Lucknow, 2001).

2
though precise separation of powers is not followed (whilst in the USA) however, the
checks & balances principle is. Thereby, among the three organs, none of them can
appropriate for other organs’ any essential function, not through the Constitution
amendment. Even, in any case, these amendments are made; these will be struck down
considering it as unconstitutional.10

In India’s Constitutional democracy, the most sacred role is played by judicial

institutions. Any person, who perceives any of his fundamental rights’ violation, can go
to Supreme Court under to the Article 32. By Article 13(2), Supreme Court can declare a
state law as null and void, in case a fundamental right is potentially affected by state
passed law.11 A much wider jurisdiction can be invested in the High Courts, for
entertaining any petition type. Be it for fundamental rights’ enforcement or any other
grounds.12 The Supreme Court is vested with power for deciding if State Legislature
/Parliament has passed a law that goes past its assigned domain.13 Still, the Parliament
can amplify the Supreme Court’s powers and jurisdiction, regarding any matter in the
Union List. The Parliament can achieve laws to these outcomes, thereby giving power to
the Court, to use its writ jurisdiction for any additional purpose, under Article 32 clause
(2).14

Further, the Supreme Court is vested with the power to pass such order/ decree as it finds
imperative, in any case, or matter for delivering justice presented before it.15 Such
provisions incorporate the court’s inherent powers, without any restriction related to the
circumstance/ cases that could necessitate the exercise of its power. It even does not
stipulate any condition which needs to be fulfilled before the exercise of these powers.
The court itself, however, throughout several judgments has stated, in particular, there
should not be any misuse of Article 142, for building a new turf wherein there was no

10
C. K. Takwani, Lectures on Administrative Law 33-37 (Eastern Book Company, Lucknow, 2004).”
11
INDIA CONST. art. 13 (2), 32 (1) & 32 (2)
12
“INDIA CONST. art. 226.”
13
“INDIA CONST. art. 131.”
14
INDIA CONST. art. 138 & 139.”
15
INDIA CONST. art. 142.”

3
earlier existence. It should not attempt to indirectly accomplish something, which could
not be achieved directly.16

This doctrine is supremely intricate, with ever-increasing subjects. Its applicable scope
and extent vary with every case. Ever since our Constitutions came into existence, the
legitimateness of the power of courts concerning the legislature has been often
questioned. An evaluation of how the Constitution makers integrated provisions related
to the judiciary indicates that they were supremely related to ensuring the judiciary’s
independence. All their attempts aimed towards enabling and ensuring the judiciary’s
ability to effectively discharge its judicial review’s wide powers, for protecting the
people of India’s rights.17

Except for their conventional role of resolving disputes among parties' interests, there is
a need for the judicial institutions to provide a balanced system for the divergent
pressures and pulls prevalent in the societies. The main basic logic behind the principle
of separation of powers is to establish polarity, for avoiding authoritarianism of
government’s any one organ. Therefore, the particular principle has been embraced with
its balances and checks. Devoid of it, no constitutional democracy can survive in present
times.18 Another relevant fact is that the courts of law are themselves creations of the
Constitution and also meant to be instrumental for achieving the state’s ideals preserved
within. During which same has been recognized, the makers of the Indian Constitution
took great care to ensure an impartial and independent judiciary as Constitution’s
interpreter. To act as a citizen’s rights guardian, it was endowed with power of ‘Judicial
Review’19 for keeping other organs in the Constitution’s ambit. 20

16
“Delhi Judicial Service Assocn. v. State of Gujarat AIR 1991 SC 2176; Union Carbide Corpn v. U.O.I.
AIR 1992 SC 248; Supreme Court Bar Association v. U.O.I. AIR 1998 SC 1895; State of Punjab v. Rajesh
Syal AIR 2002 SC 3687 etc.”
17
Granville Austin, The Indian Constitution: Cornerstone of a Nation 173-175 (Oxford University Press,
1972).”
18
“Indira Gandhi v. Rajnarain AIR 1975 SC 2299; State of Bihar v. Balmukund Shah AIR 2000 SC 1296;
Ram Jawaya v. State of Punjab AIR 1955 SC 549.”
19
INDIA CONSTITUTION. Article. 13
20
M. Piravi Perumal, Judicial Activism In India, Lawyersclubindia (13 Jan. 2009),
“https://www.lawyersclubindia.com/articles/JUDICIAL-ACTIVISM-IN-INDIA-604.asp

4
Speaking broadly, there exist three aspects of Judicial Review that means the judicial
review of legislative, administrative, and judicial decisions. But the judiciary cannot
exercise this power regarding the legislative policies’ wisdom. 21

Henry J. Abraham rightly described the term “Judicial Review” as: “is the power of any
court to hold unconstitutional & thus unenforceable any law”. 22

It is widely believed in particular under the guise of interpreting the law, the Judiciary
often tends to go a step ahead, ending up with new binding laws for the country. Such
laws are commonly not the same as that of pre-existing ones. It is known as “Judicial
Activism”. In the modern society which is experiencing constant social and economic
changes, the age-old traditional interpretation of the Constitution would invariably lose
its relevance. Judicial activism is therefore inseparable from judicial review. 23 The Court
makes a liberal interpretation of the Constitutional provisions. It thus strives to keep the
Constitution up-to-date with changing modern times. A Court that utilizing a dynamic
interpretation gives an altogether new meaning to any provision of law is called
an ‘activist court’. It does so for suiting the modifying economic and social conditions,
or for expanding the individual rights’ horizons.

Protecting the rule of law as well as upholding the Constitution is the Judiciary’s primary
duty.24 Its responsibility of being the faithful protector of the Constitution’s assurances is
crucial in any democracy. The legal system is kept vibrant by an independent and
impartial judiciary. Furthermore, the Indian judiciary is described as a creative one. The
credibility of the judicial process is eventually based on the manner of the justice
administration.

The judicial functions have been explained by Justice K. Subba Rao as follows: 25

 “It is a balancing wheel of the federation;

 It keeps equilibrium among fundamental rights and social justice;
 It keeps all forms of authorities within the bounds; and

21
M. P. Jain, Indian Constitutional Law (Wadhwa & Company, Nagpur, 5th edition, 2008).
22
Henry J. Abraham, The Judicial Process 296 (Oxford University Press, 1980)
23
Ibid.
24
Justice K.G. Balakrishnan (Former Chief Justice), Interview in India Today, Jan. 22, 2007.
25
https://www.publishyourarticles.net/eng/articles2/functions-of-judiciary/2085

5
  It controls the Administrative Tribunals”

The judiciary have been vested with powers of being the final arbiter of constitutional
disputes under various democratic Constitutions. Indian Constitution, (that has been
modeled, partly based on the Constitution of the United States of America) also comes in
the particular category.26

The Indian Constitution’s guiding principle, as clearly laid down in the preamble, is
Justice – political, economic, and social. Furthermore, one of the primary concepts is
social justice. Indian Constitution’s Part III and IV are important concerning citizens'
economic development and social justice. Also, the judiciary can and is under obligation
to promote the social justice through its judgments. However, in the course of
adjudication when judicial discretion is applied, the judiciary must be very prudent. It
should primarily focus on promoting social justice.27 In certain situations, a judge needs
to establish interpretation’s new rules, which excludes the policies to democracy’s
elected organs.

Justice Cardozo said the following about a Judge:

“He (judge) legislates only between gaps. He fills the open spaces in the
law”.28

A.M. Ahmadi, former Indian Chief Justice said:

“Judicial Activism is a necessary adjunct of the judicial function ever

since the protection of public interest, as opposed to private interest,
happens to be its main concern”.29

Cardozo emphasized the subjective elements’ role in the judicial function’s nature, i.e.,
whether the judge makes law or declares the law. In the present day, it is universally

26
https://www.preservearticles.com/political-science/6-essential-functions-of-the-judiciary-system-of-
india/4358
27
Ibid.
28
Cardozo, supra note 1 at 113.
29
“A. M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, 4 SCC (Jour) 1-10
(1996).”

6
acknowledged that the Judge is inevitably made the ‘lawmaker’ when the judiciary is
entrusted by the fair system with the important function of legislation’s judicial review as
well as an administrative action.30

 The Supreme Court in one of the early and landmark

“Bandhua Mukti Morcha case” 31 suggested that:

“There is great merit in the court proceedings to decide an issue based on strict legal
principle & avoiding carefully the influence of purely emotional appeal. For that alone, it
gives the decision of the court a direction that is certain and unfaltering, and that especial
permanence in legal jurisprudence which makes it a base for the later step forward in the
further progress of the law. Indeed both certainties of substance and certainty of direction
are an indispensable requirement in the development of the law and invest it with
credibility to commands public confidence in its legitimacy”. 32

The Court should always take care, not to overstep its limits of the judicial function. It
should avoid trespassing into the areas that Constitution has reserved for the legislature
& executive wings. Apex judiciary cannot interfere with any statutory or Constitutional
provision’s clear violation. However, if there has been a considered policy decision, not
in dispute or not intentional, then the court won't have to review the appropriate area
which is the executive role. It will not be in the public interest.33

 When two or more views or options are feasible as well as after their
consideration, a policy agreement has been taken by the government, at
that time it is not considered as the court’s function to investigate the
matter as fresh as well as in a way, sit in appeal over these policy
decisions like Balco v. Union of India34. Whatsoever technique is
implemented in adjudication by the judiciary, it should be the procedure
that must be acknowledged by the judicial principles.
30
Cardozo, supra note 1.
31
Bandhua Mukti Morcha v. Union of India 1984 1 SCC 161, 234.”
32
Ibid.
33
S. P. Sathe, Judicial Activism In India: Transgressing Boarders And Enforcing Limits 308 (Oxford
University Press, 2nd ed, 2002).”
34
Balco v. Union of India (2002) 2 SCC 333.”

7
Any democratic nation wants a non-political, incorruptible, independent, and fearless
judiciary practicing with wisdom its formidable power of judicial review. Every
republic’s heart is an independent judiciary. The democracy’s basis, the root of its
perennial vitality, is the requirement for its development as well as the promise of its
good. 35 The law is not static; it is evolving because culture evolves continuously. It must
be changed according to the transition due to different reasons. To resolve the need for a
changing world, the Indian Supreme Court is initiated exercising its judicial review
authority.

 Justice Kuldip Singh, & Justice S. Ratnavel Pandian, in

“S. P. Gupta v. Union of India”36, observed:

“The proposition that the provisions of the Constitution must be confined not only to the
interpretation which the framers, with the conditions & outlook of their time would have
placed upon them will not be tenable and is liable to be dropped for more than one
reasoning - firstly, some of the current issues couldn't have been foreseen; secondly,
other will not have been discussed and thirdly, still others may be leftover as
controversial issues, i.e. termed as deferred issues with conflicting intentions. Beyond
these reasons, it is not easy or possible to decipher as to what were the factors which
influenced minds of the framers at the time of framing the Constitution when it is
juxtaposed to the present time. The inevitable truth is that law is not static & immutable
but ever-increasingly dynamic and grows with the ongoing passage of time. It is not
enough merely to interpret the Constitutional text. It must be interpreted to advance the
policy & purpose underlying its provisions.”

“A purposeful meaning, which may have come necessarily by the passage of time and
process of experience, has to be given. The Courts should face the fact and meet the
needs aspirations of the times. The Constitution has not only to be read in the light of
contemporary circumstances and values; it has to be read in such a way that

35
H.R Khanna, Independence of the Judiciary, 16(3) SCC J. (1981).”
36
“S.P.Gupta v. Union of India (1981) Supp SCC 87.”

8
circumstances and values of the present generation are given expression in its
provisions”.37

‘Amendment of Constitution’38- a provision contained in Part- XX Article 368(1) is one

of its well-known features.

 The particular provision resulted to be extremely controversial matter

and led to disagreement among the judiciary and parliament as
evidenced by Shankari Prasad39, Golaknath40 , and Keshavanand
Bharti case41.

Judges scarcely took cognizance of the challenge to the validity of the legislative actions,
except because they were ultra-virus. Although, they vigilantly investigated the conduct
of the executive where they violated their authority and found them unconstitutional. The
fundamental idea is that courts must interpret the Constitution based on the existing
stipulations, rather than reading it based on what it “ought to be”. Once the government
has persuaded the development of a Bill of Rights in Indian Constitution with the
passage of the Government of India Act, 1935, the country has gradually started
experiencing a transition from the conventional judicial position towards a more
participatory one.

[1.2] LITERATURE REVIEW

An imperative concept accepted concerning the higher legal executive, particularly the
Supreme Court, is its alleged extremist approach. The word ‘legal activism’ has no
single definition. It implies various things to various individuals. It could mean
dynamism to judges, legal inventiveness to a few, legal enactment to others, and a push
towards bringing ‘social upset’ through the legal executive to some others.

To understand the idea of legal activism the job allotted under the constitution must be
appropriately comprehended. The Indian Constitution explicitly lays down that: States’

37
Ibid.
38
INDIA CONST. art. 368.
39
“Shankari Prasad v. Union of India AIR 1951 SC 458.”
40
“L.C Golaknath v. State of Punjab AIR 1967 SC 1643.”
41
“Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461.”

9
all three organs must independently perform their respective functions, with no
encroachment on other two organs’ functions. However, according to the society’s
interest as well as to harmonize the prevailing inconsistent interests, Judges must have
permission to go for reasonable ethical, moral, and rational considerations as and when
needed.

In India, there exists a truly ‘one of a kind’ situation for legal activism. The arrangement
for the cure of an issue or welfare of an individual is existing, yet the sufferer in light of
his numbness and neediness considers himself unfit to look for legal redressal or thump
the entryway of the Courts. Comprehending this scenario, the higher court adopted
certain changes and relaxations with equity to arrive at such a dismissed, poor and
uninformed man. To deliver equal justice to the huge and overflowing population of this
nation, the triumvirate of Judges during the eighties of the twentieth century allowed
agent appeal, loosening up the standard of locus standi. They began treating letters and
news reports as writ requests, by taking suo motu cognizance of the matters concerning
provocation, misuse, brutality, medical laxity, police barbarity, separation and assertion
by the officers, etc.

Without the exact and exquisite meaning of the expression ‘legal activism’, it is
important to rethink the elements of the legal executive. To assess the job of the legal
executive in a vote-based system like India, an outline of the lobbyist role pretended by
the legal executive must be ascertained.

Seeds of legal activism should be followed towards the Boner's case wherein Lord Coke
of England propounded the principle of a decree to stay away from an act of Parliament
when it is against the privilege and reasons, repulsive or difficult to be performed. From
that point onwards, various cases in England were chosen by the able court. Resultantly,
a whole range of Law of Torts was developed by the British Court.

The history of legal activism in the United States of America begins from Marbury vs.
Madison wherein Chief Justice John Marshal refuted the enactment authorized by the
American Congress and advanced the Doctrine of Judicial Review of Acts passed by the
American Congress.

10
History of the ‘Judicial Activism’ in India since 1950 shows a walk from 'Authoritative
Superiority' to 'Legal Supremacy'. By assuming an extremist job, the higher legal
executive has been occupied with advancing and ensuring the protection of the objectives
reflected in the preface of the Constitution.

The high water imprint instance of legal activism was Keshavanand Bharti vs. State of
Kerala42 where a precept of the basic structure has been proposed by the Supreme Court.
From that point onwards, the Apex Court now and again has been embracing the
dissident job. In this line, notable cases are Maneka Gandhi vs. Union of
India43; Advocates on Record Association vs. Union of India44 (wherein over judicial
transfers and appointments, the Chief Justice of India got authority backed by the
majority verdict); Manohar Joshi vs. Nitin Bhaurao Patil45 & Anr, “I.R. Coelho vs. State
of Tamil Nadu” (also known as 9th Schedule Case)46 (this unanimous judgment
delivered by a 9-judges bench led by Chief Justice Sabharwal, upheld the validity of the
‘Principle of Basic Structure’ propounded in Keshavananda Bharti case. The Court
again and upheld the power of the Judiciary to review any such law which in its opinion
could in any way destroy the Constitution’s basic structure) etc.

In India, Judicial activism dates back to the Constitution’s very commencement. India
was declared as the Sovereign Democratic Republic, aiming to create a “Welfare State”
protecting justice to its people –political, economic, and social. India's first Prime
Minister, Pt. Jawaharlal Nehru strongly believed that no Court (not even the Supreme
Court), could contest his welfare guidelines, as he was so determined for implementing
the welfare scheme. This is obvious from his loud, furious, and confrontational speech
on August 9th, 1947 in Constituent Assembly. Furthermore, it can be observed through
his anger that he has shown in in the Debates of Constituent Assembly:

“No Supreme Court and no judiciary can stand in judgment over

sovereign will of the Parliament represent the will of an entire
community. If we go wrong here and there, it can point it out but in the

42
“AIR 1973 SC 1461.”
43
AIR 1978 SC 597.”
44
AIR 1994 SC 268.”
45
“1996 AIR 796.”
46
2007 (2) SCC 1: 2007 AIR(SC) 861.”

11
 ultimate analysis, where the future of the community is concerned, no
judiciary can come in the way.”47

Parliamentary supremacy influences even the courts. It has been believed by the courts
that law is considered as what Parliament has declared as well as it was their duty of
interpreting the laws as it is as well as upholding them. Thus during the pre-emergency
Nehruvian era, it can be noted that, in India, judicial activism can be predisposed to the
ideals of the great personality Pt. Jawaharlal Nehru.

In the book “Indian Constitutional Law”48, M.P. Jain, mentions that the prevailing
Indian judicial approach was positivist during the Nehruvian period. Through
implementing the similar stringent interpretation canons as applicable to common laws
the court simply read the Constitutional document. Furthermore, in Chiranjit Lal
Chowdhuri v. Union of India49, Mukherjee J. has jurisdictionally set the principle, in
which it has been observed by the Court:

“In interpreting the provisions of our Constitution, we should go by the

plain words used by the Constitution makers.”

For interpretation of the Constitution, Article 367 (1) has been looked at by the courts.
The Courts failed to see through the terms laid out in the Constitution or use the
constitutional spirit as an aid for reading the Constitution by following Constitution’s
literal interpretation. V.N. Shukla, in his book ‘Constitution of India’50, observes that for
interpretation of the Constitution, Article 367 (1) has been looked upon by the courts.
Article 367 (1) postulates:

“Unless the context otherwise requires, the General Clauses Act, 1897,
shall, subject to any adaptations, modifications that may be made therein
under Article 372 apply for the interpretation of this Constitution as it
applies for the interpretation of an Act of the Legislature of the Dominion
of India.”

47
“Rajeev Dhavan, Nehru, Law and Social Change, 45-62, Rajeev Dhavan & Thomas Paul, (eds.), Nehru
and The Constitution (Indian Law Institute, New Delhi 1992).”
48
Jain, supra note 21.
49
1951 AIR 41, 1950 SCR 869.
50
V.N. Shukla, Constitution of India (Eastern Book Company, Lucknow, 2012)”

12
Durga Das Basu51, a prominent jurist has supported the Indian Constitution’s literal
interpretation depending on that: while the Constitution of India may be viewed as any
other Act by courts, the Constitution itself guarantees clearly that Article 367(1) is
incorporated. Although M. P. Jain52 accepts that with the help of Article 367(1) the
Constitution itself embodies the principle of statutory construction, however, he varies
on the point that the judicial response to the Constitution has been no more and
exclusively a statutory interpretation alone.

The Court tried to promote the ideals of federalism during the Nehruvian period, as well
as their decisions were mainly centrist. Although certain rulings were also taken in favor
of the States, the Court had made a rather liberal view of the Center's control. But in the
post-Nehruvian era, the executive & the parliament were warring together on the one
hand & the judiciary on the other. In Parliament, the Executive has reaffirmed its
authority to regulate the fundamental rights and change the constitution in any respect.
The Supreme Court, on the other hand, affirmed its authority over constitutional reforms.
It culminated in the legal invention of the "prospective overruling" doctrine and the
“basic structure” doctrine. The Supreme Court’s gradual transformation from a positivist
court to an activist court is judicial activism’s another aspect.

John Gardner53 agreed that the judge-made law was constitutionally legitimate when it
was declared, followed, invoked, enacted by certain judges, approved by some, or
otherwise involved with them at the proper time and place. Justice P.N.Bhagwati, former
Indian Chief Justice, advocated the validity of those judges' legislative positions. The
learned judge claims that regulation is an intrinsic and necessary aspect of the judicial
process with that judges shouldn't have to feel timid or excused for this role in the
development of laws.

Furthermore, in the book “Introduction to the Constitution of India” author Durga Das
Basu54, has been critical about judicial innovations because bitterness between the
Judiciary with the Legislature can be engendered through it, in case one of them tries
checkmating the other, through judicial activism or amendment.
51
Durga Das Basu, Comparative Constitutional Law 176 (Wadhwa and Company, Nagpur, 2nd ed.,
2008).”
52
Jain, supra note 21 at 1566.
53
John Gardner, Legal Positivism, 153 – 173, Alieen Kavanagh and John Oberdiek (Eds.), Arguing About
Law (Routledge: Tylor and Francis Group, London and New York 2009).”
54
Basu, supra note 6.

13
During the pre-emergency era, there was a transformation of the Supreme Court from a
literal interpreter to a liberal interpreter as well as during the emergency era to a literal
interpreter again. However, the Supreme Court of India again took legal advocacy in a
desirable political way to eliminate its derogatory reputation created during the
emergency period.

The Court has again played a lawmaker's role; a new responsibility as the protector of
people’s interests. However, the new position of Supreme Court have not been
understood, and the Court & the House have had confrontations. Political activism
sometimes often tended to become legal and pro-rich conservatism. It was not an unusual
occurrence, as another interesting part of the judicial activism in India. In reality, it was
an evolving mechanism that was already being endorsed by the constitutions of
democracies all over the world.

It has been acknowledged that States’ all three organs must independently perform their
respective functions, with no encroachment on the other two organs’ functions.
However, according to the society’s interest as well as to harmonize the prevailing
inconsistent interests, Judges must have permission to go for reasonable ethical, moral,
and rational considerations wherever required. The dynamic proportion to which the
concept of judicial activism has manifested itself in the Indian judiciary makes it a
suitable subject for comprehensive research in the vast legal field.

None of the accessed literature on Constitutional law had specifically dealt with the
concept of Judicial Activism- its impact on democratic dimensions of judicial institutions
since its inception. A clear lacuna was perceived regarding whether or not the concept of
judicial activism was imbibed in the Indian Constitution. There has been a functional
creative mission to fulfill the fundamental rights as well as India’s vast population’s
egalitarian aspiration.

Even literature and sources particularly related to the matter of Judicial Activism have
not competently explored the issue: whether or not Judicial Activism has been
instrumental in promoting the high benches for delivering vividly socialist
announcements in India’s people’s interests under the Constitution’s command.

[1.3] RESEARCH METHODOLOGY

The doctrinal research procedure was accepted for the study. This research (also referred
to as “theory-testing” or “knowledge building research”) is not only about case law

14
analysis – arrangement, ordering, and systematization of legal suggestions as well as
legal institution’s study; however, it also establishes laws – their major tool for doing so
being rational deduction or legal reasoning. Hence, the method of research implemented
in this comprises of all relevant literature’s detailed review; judicial and legislative,
practical and theoretical aspects analytical and critical study; source materials’ in-depth
study, comparative studies, case studies, and text reviews.

The research subject being from Constitutional Law necessitated taking the historical
methodology, for studying the judiciary’s role and position concerning judicial reviews.
Constituent Assembly debates were referenced for specific critical study areas, for
finding out the Constitution framers’ intention. The research again includes analysis of
numerous case laws, Law Commission reports, and parliamentary debates. The use of the
internet also contributed towards gathering important information related to the subject.
A consistent citation mode has been surveyed through the manuscript. A purely historical
method was adopted with regards to the Indian Judiciary’s position’s evaluation.
Whereas, an Analytical, Critical, and Descriptive methodology was adopted regarding
Supreme Court’s Judicial behavior analysis in Indian Constitutional Law’s particular
areas.

The research depends on two material types that are: primary as well as secondary
material. It largely depends on Jurist’s views, doctrinal/ library-based research, besides
analytical and historical methodology traits. Relevant information, as well as materials,
has been collected by both socio-economic sources and legal sources (such as published
work in National as well as International journals and websites, Research Paper
represented at International and National Seminars, several International and National
Courts’ original judgments, etc).

[1.3.1] SOURCE OF RESEARCH DATA

The research source comprises of inter alia: latest judgments that were determined by the
Indian Supreme Court, AIR, official gazettes regarding the latest amendments in the
Indian Constitution, journals published by the Indian Law Institute, magazines,
international and national periodicals, books published on Indian Constitutional Law,

15
newspapers, various State High Courts and specific cases related to the subject of
Judicial Activism.

Cases and data were again obtained through the Internet. The library archives contain
both forms of old and modern information on judicial laws. Also, regarding the research
field, it included views of international conferences, attending seminars, visits to law-
making authorities and institutions, case studies specifically from the legal fraternity,
judges, etc.

Primary Sources:

1. Constituent Assembly Debates (CAD): To comprehend the Constituent Assembly

members’ expressed views, at the time of Constitution framing.

2. Several advancements/amendments to the Indian Constitution (particularly after

the 1980s).

3. Judgments delivered by the Indian State High Courts as well as Supreme Court
(described in prominent law Journals including All India Reporter, the Supreme
Court Cases, etc).

4. Published reports of various Parliamentary Committees, Indian Law Commission

and Inquiry Commissions, etc.

Secondary Sources:

1. The articles written by prominent Journalists, Lawyers, Academicians, Jurists,

Judges, etc. (published in prominent magazines and Law Journals such as Annual
Survey of Indian Law, AIR and SCC, Indian Bar Review, Journal of Indian Law
Institute, Modern Law Review, Harvard Law Review, etc).

2. Intellectual critics and jurists’ opinions about Judicial Activism as well as their
associated factors’ studies.

3. Several valedictory and inaugural addresses, extension lectures, memorial

lectures provided by distinguished personalities associated with judiciary and
justice administration.

16
 4. All leading work / write-ups on Judiciary, generally as well as on judicial
activism in particular (including reputed and leading newspapers, magazines, etc)

[1.4] STATEMENT OF THE PROBLEM

If all aspects of civil law are embodied in legal advocacy and is to be explored in-depth,
it is very challenging to do justice to the topic of this task in its entirety. Through the
restriction of the reach of this review or the discrepancy amongst judges' performances,
certain fields in which judicial advocacy has been more sensitive & rendered an
enormous contribution to its growth are removed. In those regions, the judiciary's
primacy was significantly changed in its understanding of Article 14 which Supreme
Court has implemented at the beginning of the 1980s.

The implications of judicial activism on the Indian judiciary in the backdrop of the
provisions of the Indian Constitution is a comparative study of authoritative works
produced by great luminaries in the domain of law are the core of the present work.

The present work exhaustively deals with the question; whether or not the judiciary has
responded to a constitutionally innovative mindset of judicial activism along with a
conscientious and collective mission as well as vision.

[1.5] RESEARCH QUESTIONS

1. How the concept of Judicial Activism impacted democratic dimensions of

judicial institutions since its inception? What were causes that led to the growth
of Indian judicial activism?
2. Is judicial activism imbibed in the Indian Constitution, which has a functional
creative mission to fulfill the fundamental rights as well as egalitarian aspirations
of India’s vast population?
3. Is public interest litigation (PIL) an incarnation of judicial activism? What is the
public interest litigation’s root rule?
4. Has Judicial Activism been instrumental in promoting the high benches for
delivering pronouncements that are vibrantly socialist as per India’s people's
interests under the Constitution’s command?

17
 5. What are the judicial activism’s implications on the Indian Judiciary? Whether or
not the judiciary has responded to the constitutionally innovative mindset of
judicial activism along with a conscientious and collective mission as well as
vision or not?

[1.6] OBJECTIVES OF THE STUDY

Following objectives correlate with the research:

1. Studying the historical growth or birth of judicial activism and its implementation
on the Indian Judiciary;

2. Studying/analyzing the idea of judicial activism to find out its past tale;

3. Studying and elaborating the deep analytical reasons/logics and the dimensions of
judicial activism, including its effect on the Constitution;

4. Finding out how in days to come, a balance must be procured between the
Constitutional aspects and the aftermath of judicial activism on the social
structure in the bigger and expanded context; and

5. Analyzing the current situation, to derive results and inferences for making
relevant recommendations.

[1.7] HYPOTHESES OF THE STUDY

The birth evolution of Judicial Activism is the direct result of executive machinery’s
failure and the political elite’s escapism, concomitant with the judiciary’s active
participation towards the protection of the fundamental human. But, at the same time, in
a democracy like India, an unrestricted judicial system is disadvantageous to the very
basics of Constitutionalism. Judicial activism is judicial review’s upgraded form that
over the year were implemented like a weapon for restraining the legislature’s arbitrary
powers. Through its activist methodology, any existed gaps are filled by the Supreme
Court established due to executive and legislature; thereby contributing a great deal
almost the development of particular fields in Constitutional law. Furthermore, judicial

18
activism over the year has matured “social legitimacy”, spreading awareness of rights
among people as well as their civil liberties’ enforcement and protection.

[1.8] SCOPE OF THE STUDY

In India, modern-day Judges have forsaken their neutral referee’s conventional function.
According to the judicial activism they have repeatedly re-categorized for giving the
justice scales as per the “distributive justice”. Such actions’ legitimacy needs to be
critically appraised by the legal fraternity. It must be ensured, also at the cost of
becoming unpopular by tide swimming. The Judge must take judicial account of social &
economic implications that correlate with the theoretical philosophy of law in this
continuing dynamic adjudication process.

The present study aims at considering the modern judiciary’s role in the current situation.
It also aims to find solutions to some important issues like whether or not the Judiciary’s
creativity and judicial activism sometimes crosses the separation of powers’ thin
invisible lines (thereby usurping the governance’s other two organs’ powers that are –
Legislature and Executive); the Judges while adjudicating, assess its decisions’
implementation’s practicability through governance’s other two organs (for example,
Delhi CNG case); if the judges need self-discipline in its Public Intrest Litigations
dealings as well as lastly, how far a judge was able to satisfy the demands of the masses
and served as need of an hour while delivering justice!

[1.9] SCHEME OF THE STUDY

1. INTRODUCTION: This chapter opening with the topic’s introduction. It further

explains the study’s several segments that consist of hypotheses, significance,
objective, scope, etc.

2. CONCEPTION, DEFINITION, AND FORM OF JUDICIAL ACTIVISM: It

initiates with dome key terms’ explanation that is Judicial Overreach, Public
Interest Litigation, Separation of Powers, Judicial Passivism, Social Justice,
Judicial Power, Judicial Restraint, Judicial Review, and Judicial Activism,

19
 without that it is not possible to complete the study. It also covers the position of
judicial review & judicial activism in other countries.

3. HISTORICAL PERSPECTIVE OF JUDICIAL ACTIVISM: It attempts to

explore the historical evolution of Judicial Activism. In India, even in the pre-
Constitution period, there existed a debate on activism versus restraint, yet until
the 1970s, it did not strongly took-off, with the Supreme Court itself becoming an
activist. It must be explained here, how a positivist role is retained by early
Indian Judges in the Constitution’s framework. The Supreme Court judges
worked rather technocratically, hesitating to 'assume larger jurisdictions' for the
court. Sometime in the 20th century, the word 'Judicial advocacy' was born to
describe the act of civil law, i.e. Positive rules for judges.

To simplify the study, there are 3 parts in this chapter that are:

1. Pre–emergency era (1950 – 1974)

2. Emergency era (1975 – 1977)

3. Post–emergency era (1978 onwards).

4. HORIZONS OF JUDICIAL ACTIVISM: Judicial advocacy in respect to

power separation will allow a debate. The battle between judiciary, law, and
executive for freedom and dominance is an old saga. All the particular issues are
explained in this part. Firstly, the notion of division of powers is the very main
objection to judicial activism’s constitutionality.

5. POST-EMERGENCY JUDICIAL ACTIVISM: It explains how the Court

passed a series of decisions between 1977 and 1998 which increased its
importance in the field of law and politics. It explains how liberalism in the
Court's last two decades and a half has transformed into rising institutional
authority. It explores, in this segment, how the Supreme Court have so far been
primordially legitimized in resolving some of the more contentious issues in
politics and law and is "the most powerful apex court in the world."

20
6. JUDICIAL ACTIVISM AND THE INDIAN CONSTITUTION: Although
the British legal system is inherited by India, the Indian judiciary has more
evolved over the years. This section discusses the judicial activism’s impact on
the Indian justice’s administration. The Supreme Court- its focus on the Public
Interest Litigation (PIL) development. It details several ways in which the
Supreme Court have endeavored for providing better access for people for
utilizing the legal processes.

7. CONCLUSION AND SUGGESTIONS: This segment concludes the study, by

deducing the total such has been described in previous chapters and making
relevant suggestions.

21