Transgressing borders through Judicial Activism- An Indian perspective


This article was written by Harshita Tomar, a student of Hidayatullah National Law University.


Judicial activism is a controversial issue in the Indian Judiciary. It is an essential aspect of the dynamics of a constitutional court.  Attempts have been made to curb the power of courts as well as access to them.[1] Activism is mainly related to change in the power relations. A judicial interpretation that furthers the rights of the underprivileged sections or imposes curbs on absolute power of the State, or facilitates access to justice is a positive activism. Judicial activism is not an aberration but is a normal phenomenon and judicial review is bound to mature into judicial activism. It also has to work within certain limits. Judicial activism of the Indian Supreme court is considered justified and necessary not only by the people who take recourse to it but also by political parties and government. It is believed that people including those in authority and wielding power have a duty to obey the decisions of the court and disobedience of the court is criticized. It is often said that Judiciary is the weakest organ of the State. It becomes strong only when people repose faith in it. Such faith of the people constitutes the legitimacy of the court and of judicial activism.

This paper will mainly focus on the tracing the vicissitudes of judicial activism and the changing role perception of the judiciary in the Indian Democracy. Further an attempt would also be made to answer certain core questions viz; how did it transform itself from a positivist court to an activist court? What is the main difference between activism and excessivism ? And how do we draw a line between activism, excessivism, and adventurism?

  1. Introduction:

The general perception about the decisions of the judiciary is that they are independent and non political. ‘Non- political’ here means that the judges are not committed to any political party or an ideology canvassed by one or more of the political parties. Judicial activism is a necessary adjunct of the judicial function since the protection of public interest as compared to private interest happens to be its main concern.

 The basic structure doctrine, which the Supreme Court of India has laid down in Kesvananda Bharti’s case[2] as being a limitation on the constituent power of the Parliament, was at variance with what was intended by the makers of the Constitution. In the absence of such activism, a constitution becomes stultified and devoid of any inner strength to survive and provide normative order for the changing times. Where a judge interprets the law or the constitution not merely by giving the effect to the literal meaning of the words of the statute, or the Constitution but, by giving such meaning as he thinks is in consonance with the legal spirit, he is said to be an activist judge.

In common law judicial activism was essentially directed against the executive and very subtly and indirectly against Parliament without challenging its authority to legislate. The important question today is not whether the Supreme Court could function its judicial role, but to what extent the concept of Judicial Activism is creatively exercised. A balance between the powers of Judiciary, Legislature and executive is necessary to carry the nation on the true path of democracy.

  1. Theories related to Judicial Activism

There are mainly two theories behind this whole concept of activism. They are: (i) Theory of vacuum filling and (ii) Theory of Social Want.

(i)Theory of Vacuum Filling

 The basic principle behind this theory is that a power vacuum is created in the governance system because of the laziness and the inactiveness of any one organ. Such a vacuum is against the setup of democracy and hinders the nation’s progress. Hence, nature does not permit this vacuum to continue and this is taken up by the expansion of other organs of the government. In the case of Judicial activism, the vacuum is created by the inactivity, incompetence, disregard of law, negligence, corruption, utter indiscipline and lack of character among the two organs of governance viz. the legislature and the executive.[3] Hence, the organ which is left i.e. The Judiciary has no other alternative but to fill up the vacuums by expanding its horizons, created by the inactiveness of the Executive and the Legislature. Thus, according to this theory the hyped activism of the Judiciary is the result of filling up the vacuum or the void created by the non- active organs of the government.

(ii) Theory of Social Want.

When the existing legislatures couldn’t find any pathway, it became necessary to take upon itself the problems in the functioning of the Government and to find a new dimension to solve them.

There was no alternative left with them. This is the base of the Theory of Social want.

The only thing they could do to change the framework of good governance was to provide non-conventional interpretations to the existing legislations. Hence, this gave birth to judicial activism. It has been opined by the supporters of this theory that judicial activism plays a vital role in bringing the societal transformation. It is the judicial wing of the state that injects life into law and supplies the missing links in the legislation. Having been armed with the power of review, the judiciary comes to acquire the status of a catalyst on change.[4]

  1. History of Judicial Activism in India

A progressive judiciary and a conservative executive, or a progressive Parliament and a conservative judiciary coexisting at the same point of time, thus form the basis of judicial activism or judicial overreach, as differentiated  to executive excesses or executive enthusiasm beyond the bounds of law.

The theory of judicial activism in India has evolved in the late 1960s or the early 1970s when Indira Gandhi was the Prime Minister of India.

When late Mrs. Gandhi tried to introduce progressive reforms in order to implement certain measures to remove poverty thus by abolishing the privy purses and nationalizing 14 of the major banks, the conservative judiciary intervened in that and struck down the relevant provision as unconstitutional. The judgment of the apex court in the bank nationalization and the privy purses cases was considered by Mrs. Gandhi as Judicial overreach. It is believed the conservative and the most senior judges were disregarded to be appointed for the post of the Chief Justice of India and Justice M.N. Ray who was fourth in the line of majority was appointed, which hence resulted in the resignation of three senior most judges i.e. Justices Hegde, Justice Shelat and Justice Grover. This marked as the beginning of the concept of judicial activism that has resulted from the dead heat between the executive and the judiciary.

  1. Transgressing The Boundaries: Transformation From Activism To Overreach

Judiciary has evoked the executive to perform its obligations that has been provided under the Constitution. This will thus continue to be desirable but still it is against the suprema lex i. e the Constitution, if the Judiciary interferes into the domain of the executive and the legislature.

While in matters related to labour policies like wages, working conditions etc, economic and ecological matters judicial behavior can be perceived to be proactive, judicial interference in cases related to fiscal policies, political affairs, internal proceedings of the legislature etc can amount to judicial overreach.

“Judicial Activism” and “Judicial overreach” has to be properly distinguished so that the constitutional democracy can function smoothly. This can be achieved by keeping separation of powers as the central characteristic and supremacy of the Constitution as the key foundation for the edifice.

The apex court in S.R. Bommai v. Union of India[5] had laid down that the Presidential Proclamation dissolving a state legislature is subject judicial review and the court has the power to restore the dismissed state government to its office, if it strikes down the proclamation, judicial decision in Vishakha v. State of Rajasthan[6] which was regarding sexual harassment of women at work place, Judicial interference in the educational policies of the Government in T.M.A. Pai Foundation’s case[7]and many others are examples of Judiciary acting actively in the domain of the legislature and the executive.

The recent Gujarat fake encounter case, in which the court has decided to look after into the  investigation and take over the role of the investigating agency and not entrusting the case to the CBI, is a case of over-stepping the constitutional fine line  of demarcation.

  1. Judiciary: A despotic branch of the state

The Supreme Court has widened its scope of intervention in the matters of public administration and various policy decisions of the Government. It knows it very well its limitations. It has itself in the matter of   P Ramachandran Rao v State of Karnataka[8] observed that

“The Supreme Court does not consider itself to be an imperium in imperio or would function as a despotic branch of the State.”

There is no clear concept of separation of powers in the Indian Constitution, though the powers of three wings are well-defined with the object that each wing has to function within the field earmarked by the Constitution. This has been also intervened by the apex court in State of Kerala v A Lakshmi Kutty[9] where it had held that  “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State.”

 The judges should avoid their entry into the field specified constitutionally, to the legislature and the executive. They cannot be legislators as they neither have the mandate of the people nor they have the practical wisdom to understand the needs of different sections of people living in the society.

It is often seen that while interpreting the provisions of the constitution without proper explanation often rewrites them which results in crystallization of the legal principles and the constitutional values by the personal opinions of the judges into the judgments. A recent order by the Supreme Court clearly explains this situation. In this order the apex court has ordered to demolish and seal off the commercial entities run in the residential areas of Delhi.

The Supreme Court went against the decision of the Delhi Government regarding regularizing all the Constructions and took the view that all the places should be sealed off. The municipal corporations were reluctant in retaining this order but this had no impact on the decision. The Supreme Court remained steadfast in its decision and the municipal authorities had no other option except to go ahead.

The Supreme Court of India is well versed with its limitations, and hence exercises self-restraint and caution over inducement of the area exclusively reserved for the legislature and the executive.

In P Ramachandra Rao’s case[10] the seven judge bench of the Supreme Court has opined that

“The primary function of the Judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation. But they cannot entrench upon in the field of legislation properly meant for the legislature. It is no difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law – the field exclusively reserved for the legislature.”

Judiciary has many times through intervening into the domain of the executive and legislature crossed the borders setup for the transparency in the functioning of the three organs of the Government.

Thus, defining laws and transgressing boundaries is found relevant only when it doesn’t shape into over activism and results in despotism. Hence, judges should limit their scope of decision making till the time it doesn’t turnout the third most important pillar to be puppet in the hands of the state.

  1. Judicial Restraint: Need of the hour

The importance of judicial restraint for the maintenance of the delicate balance of power of the different limbs in a democracy has been highlighted by the Supreme Court immensely.

Justice Markandey Katju in Minor Priyadarshini’s case[11] has explained that:

“Under the Constitution, the legislature, the executive and the judiciary have their own broad spheres of operation. It is, therefore, important that these three organs of the state do not encroach upon the domain of another and confine themselves to their own; otherwise the delicate balance in the Constitution will be upset…. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state. It accomplishes this in two ways. First it not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary… Second, it tends to protect the independence of the judiciary… If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. The touchstone of an independent judiciary has been its removal from the political and administrative process… Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.”

 The Madras High Court while dealing with a matter of PIL which vituperated the executive order related to the free distribution of colored television sets to reasonable families in Tamil Nadu State.

Thus, often the need of judicial restraint arose in dealing with the matters of the executive orders and administrative functions. The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super legislature by doing so, it will only enhance its own respect and prestige.

  1. Lack of accountability

Judiciary as an institution is less accountable to the people when compared to the other two organs i.e. the executive and the legislature. The actions of the executive are subject to judicial review when there is social, economic or political injustice – or departure from the provisions of law and the constitution. When the legislature makes laws beyond constitutional bounds or acts arbitrarily contrary to its basic structure, the highest court examines and corrects them. When the judiciary is guilty of excesses, only a larger Bench or a constitutional amendment can intervene. Even today, the only mode of removal of judges as prescribed in the constitution is impeachment, which is a difficult step to be undertaken. This lack of accountability requires the judiciary exercise self-restraint by scrutinizing its actions.

  1. Abuse of Power of Contempt

Rule of law is the supreme law for the functioning of any democracy. Contempt power given to the court often act as a challenge to the rule of law. It is often seen that the use of the power of contempt by the higher courts has often been uncalled for and unregulated. There are many instances of abuse of the contempt power than its use. Judiciary has been struck with its own image of authority and truth is turning out to be an unpalatable truth.

The governance of a Republic like our country is completely vested if the trinity has totality in their administration. The Constitution of India is the supreme law of the land and the rule of law adheres to each and every organ of the state. Hence, it is the duty of all the organs to be vested by the concept of rule of law and to work while limiting into the boundary of rule of law.

  1. Conclusion-

India has seen the instances of beneficial judicial activism in the recent years. It can’t be overlooked that Judicial activism has done a ton to improve the states of the masses of our nation. Judicial Activism also tried to improve the occasional aberrations by granting timely justice to the people in need of it. It is thus an answer to judicial inertia or judicial tardiness.

This can be promoted just by genuine and blunt judicial activism and not by dropping down judiciary in the eyes of the public. The best resource and the most grounded weapon in the ordnance of the legal is the certainty it summons and the confidence it moves in the brains of the general population in its ability to do impartial equity and keep the scales in adjust in any dispute.

The real source of strength of the Judiciary lies in the public confidence and judges should ensure that this confidence is not lost. Judicial activism is a sharp-edged instrument which must be utilized as a surgical tool by a skilful specialist to cure the illness. The courts have innovated to reach justice to the deprived section of the society. Many critics believe that the great danger lies in the activism of the courts that it may result in aggravation of the activism of the authorities. It is nowadays seen that inconvenient decisions are left by the executive for the judiciary to look into. Excessive usage of the judicial power in the administrative blunts them. The only solution for stopping the activism to turning into overreach is that the task of this court should be to compel the authorities to act and to pass executive orders. They must be told the manner in which they should act. The Supreme Court recently noted in Indian Drugs &Pharmaceuticals Ltd v Workmen[12]that: “the supreme court cannot arrogate to itself the powers of the executive or legislature… there is a broad separation of powers under the constitution of India, and the judiciary, too, must know its limits”

It is necessary for sustaining the democratic system and the establishment of a rule of law in society. Therefore, one has to be both audacious and careful in this respect and the judiciary has to keep on learning mostly by experience.

[1] S.P. Sathe , ‘Curbs on PIL : UF Government’s Evil Designs’ Economic and Political Weekly 1 March 1997, p 441

[2] AIR 1973 SC 1461

[3] S.C.Kashyap,   Judiciary-Legislature Interface (Universal Publishing House, New Delhi, 1997),  p.71.

[4] Shailja Chander, Justice V.R.Krishna Iyer on Fundamental Rights and Directive Principles, (Deep and Deep Publications, New Delhi. 1998), p.223.

[5] AIR 1994 SC1918

[6] AIR 1997 SC 3011

[7] AIR 1995 SC 1938

[8] AIR 2002 SC 1856

[9] AIR 1987 SC 331

[10] Supra note 8

[11] 2005 (3) CTC 449

[12] (2007) 1 SCC 408

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