Judicial Activism

November 10, 2015

Judicial activism is one step ahead of judicial review. It is possible and available only in the presence of judicial
review. That is the reason why we say that. Judicial activism is an extension of the power of judicial review.
This grants to the Judiciary a positivist and constructionist role together with its deterrent role. Earlier, the
judiciary was a quite spectator till a case was registered. However since the 1980s some judges have taken up
this movement with a missionary spirit and is now on its way of being institutionalized. While a PIL has to be
registered, judicial activism is one step ahead. In this, the court on the basis of a written complaint, a newspaper
clipping or a report over the television can register a case and begin legal proceedings.
Blacks Law Dictionary defines that the judicial philosophy which motivates judges to depart from strict
adherence to judicial proceeding in favour of progressive and new social policies which are not always
consistent with restraint expected of judges. It is commonly marked by decisions calling for social engineering
and occasionally these decisions represent intrusion in legislative and executive matters.
The constitution of India divides the powers of the government into three branches; legislature, executive and
judiciary. It is when the judiciary steps into the shoes of the executive and the legislature and embarks on the
work of lawmaking rather than interpreting laws, it is deemed to be judicial activism.
The courts are being force to step into the shoes of the legislature and the executive because of the constantly
deteriorating nodal and political conditions of the country. If the other two branches had been responsible and
responsive, the need for activism of the judiciary would not have been felt. The administration today is
considered as least sensitive to the needs of the public, the legislatures are a symbol of disorder and there have
been scams involving millions of rupees in which the needle of suspicion points to the highest level of
politicians and the bureaucracy. The individual finds himself alone in this hopeless situation and it is the
judiciary that steps in to fill that vacuum and assure him that all is not lost. The judiciary had to adopt this
activist approach because the other two organs appear apathetic and often fail to discharge their obligations and
the law enforcing authorities show carelessness in the implementation of the law. Hence the need for activism
by the judiciary. The judges cannot isolate themselves in an ivory tower and neglect the problems that plague
our society. Besides, the Supreme Court has been made the guardian of fundamental rights by the constitution.
The courts therefore can adopt an activist approach and issue directions to the governmental organs and
agencies at all levels with a view to enforcing the fundamental rights of the citizens. Currently there are a large
number of groups in India that are being subjected to exploitation, violence and injustice. In such an
environment the judges cannot content themselves by invoking the doctrine of self restraint and passive
interpretation. The judiciary, by being active, can remedy the abuses and misuse of power and also help in
containing exploitation and injustice.
The Indian Supreme Courts gaze has now gone beyond the protection of the socially and economically
downtrodden and securing justice for them, into the realm of public administration. It has started issuing
guidelines and directives to the government. Judicial activism has touched almost all the facets that public
administration deals with. Some of the areas in which the court has issued guidelines are: bonded labour,
rehabilitation of freed bonded labour, payment of minimum wages, protection of pavement and slum dwellers,
child labour, juvenile offenders, illegal detentions, torture, maltreatment of women in police lock-ups,
environmental problems, closure of factories emitting poisonous gases, amendment of prison laws etc. The
court has punished the wrong doers in matters relating to the unfair allotment of official flats and arbitrary

allotment of petrol pumps and gas dealerships. It has asked the officers of the Central Bureau 0 Investigation to
complete investigations in a particular matter by a fixed date. It has looked into the telecom policy and asked
the union or state government to construct dam upto a certain height and to release the bonded labourers. In
2006, the Supreme Court issued guidelines to reform the police administration. Following the Mumbai terrorists
attack of November 2008, a former Attorney General of India filed a petition before the Supreme Court seeking
to better equip the Indian Police. In 2009, the Supreme Court issued a notice to the union government seeking
an explanation of steps taken b; it to improve the plight of Indian students in Australia who have been facing
racially motivated attacks. In 2009, it sent a notice to the Uttar Pradesh government questioning the
proliferation of Mayawati statues allegedly worth crores of rupees. Thus we see tha the Supreme Court is
displaying zeal not only in entertaining petitions for the protection of fundamental rights but also questioning
the government and issuing directives in the breader realm of governance.
Detractors of the judicial activism charge that judicial activism is undemocratic Legislation is primarily the
concern of the elected representatives of the people. The detractors further argue that an unelected judicial
branch has no legitimate grounds t overrule the policies made by the elected representatives. When it issues
guidelines f( the administration, it becomes the virtual lawmaker and has been accused of being the star
chamber or the third branch of the legislature.
It is judicial tyranny in the sense that it is virtually tantamount to rebuking an emu government. Critics also say
that the Supreme Court should spend its time in solving cases which have been pending for ages rather than
interfering with the other two organs.
Indian judiciary is at a cross roads today facing several challenges. Its conduct impartiality, independence and
readiness to dispense justice is under a question mark.
Though the judiciary is quick enough to bring the administration to book, there have been instances when the
conduct of the judges themselves has brought embarrassment to it and cast doubts on the dignity and neutrality
of judges. In 1992, a committee set up by the Supreme Court found V Ramaswamy a judge of the Supreme
Court guilty of misconduct and sent a proposal to the Parliament to impeach him. On 11 May 1993, the motion
was put up before the Lok Sabha for voting. 108 MPs of the opposition voted for his removal but all the 205
MPs of the ruling party abstained from voting and Ramaswamy was saved. Clearly the matter had become
highly politicized. In 2008, the Ghaziabad Provident Fund Scam came to light. 36 judges at various levels of the
judiciary were charged with embezzlement of 23 crore out of the provident fund of class III and IV employees
of the Ghaziabad High Court. The Supreme Court handed over the investigation of the case to the CBI. Though
the case does not pertain to the Supreme Court, it did tarnish the image of the judiciary as a whole.
In September 2008, the Chief Justice of the Supreme Court, Justice Balakrishnan, advised the government to
initiate impeachment proceedings against a judge of the Calcutta High Court Soumitra Sen. He has been
charged with the misappropriation of several lakh rupees. He resigned in September, 2011. Although it was the
case related to a High Court judge but it is the judiciary as a whole that suffers.
Judicial processes and procedures are often long drawn, complex and extremely expensive and therefore beyond
the reach of the common man. It takes years before a case is solved. Then too the matter does not get resolved.
The other party appeals to a higher court, one of the parties could die and often the time and money spent is so
high that it cannot be compensated. The procedures are long drawn too. Looking at the trouble one has to face
in making appearances in the court, bringing the witnesses to the court, the witnesses turning hostile and a horde
of other problems, the common man refrains from registering a case. It is a matter of serious concern that in the

year 2011, there were about three crore cases pending in the various courts of India. When a case is examined
after several months or years many facts are lost and the pleas taken are forgotten by the concerned judge.
Most administrative actions are full of technical complexities. The judges are no doubt legal experts but
sometimes they are unable to fathom the technical aspect of administrative problems. They entangle themselves
in the legal web and cannot comprehend the human aspect of administration. Therefore, the tendency to set up
Administrative Tribunals is on the rise. In 1976, the 42nd Amendment Act was passed. It authorized the
Parliament and state legislatures to constitute administrative tribunals ,ad determine their work procedures.
Such tribunals have been set up in areas such as the civil service, railways, income tax, public corporations, land
reforms, food and civil supplies, industry and labour. Since justice is dispensed faster in these courts the citizens
take recource to these courts rather than approaching the regular courts. No doubt they reduce the burden of
work on the regular courts but at the same time they reduce the jurisdiction of the courts. Appeals against their
decision can however be made to the Supreme Court.
Judicial decisions also do not apply uniformly to all administrative acts. All administrative actions cannot be
subjected to judicial review. A list of Acts that are immune from judicial review are given in the Ninth Schedule
of the constitution. This schedule gives a list of 284 Acts, which are the Acts of various state governments. Until
2007, these 284 Acts were immune from judicial review. This arrangement was challenged in 2007 in the case
of I R Coelho vs. State of Tamil Nadu. Justice Sabharwal while delivering his judgement, said, that only laws
from 1 to 661, that is only those laws of the Ninth Schedule would be immune from judicial review which had
been passed on or before 24, April 1973. This date is important because the judgement in the Keshavanand
Bharati case was delivered on this date. The decision in this case was that each law of the land should be
examined on the yardstick of whether this law violates the basic structure of the constitution. The words basic
structure encompass all those features that are the cornerstone or foundation stone of the constitution. Some of
these features are fundamental rights, secularism, judicial review, parliamentary democracy etc. Laws ranging
from 67 to 284 in the Ninth Schedule were examined on this yardstick and since they were found violating the
basic structure they can now be subjected to judicial review.

Disturbing trends in judicial activism

Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has
now been diluted to interfere with the power of the government to take decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons. Critics
denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the
eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections
of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable
judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a
manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of
social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Courts
activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies
of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other
judiciary.
FOR BASIC RIGHTS
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained
complaints by social activists drawing the attention of the Court to the conditions of certain sections of society
or institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Courts attention to a series of articles in a
newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more
than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice
Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable
conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane
conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the
barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ
petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was
brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in
quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court
against the evictions of pavement dwellers of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and
devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL
as it originated. He emphasised that PIL a strategic arm of the legal aid movement which is intended to bring
justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally
different kind of litigation from the ordinary traditional litigation.

No longer were the Courts clientele drawn from landlords, businessmen, corporations and affluent persons.
With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the
Court with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry
Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.
THE NEW INTERVENTION
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 courts 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. In the interest of preventing pollution, the Supreme Court ordered
control over automobile emissions, air and noise and traffic pollution, gave orders 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 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 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 a collegium 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.

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, 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.
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
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.
OTHER EXAMPLES
Matters of policy of government are subject to the Courts scrutiny. Distribution of food-grains to persons below
poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with
the complex food distribution policies of government. 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
Courts 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 teledensity 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 21 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 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.