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whereby judges allow their personal views about public
policy, among other factors, to guide their decisions”.3b
5. “Judicial activism is a procedure to evolve new principles,
courts for needy or to entertain litigation affecting the entire
society or a section of it”.3c
The concept of judicial activism is closely related to the concept
of Public Interest Litigation (PIL). It is the judicial activism of the
Supreme Court which is the major factor for the rise of PIL. In
other words, PIL is an outcome of judicial activism. In fact, PIL is
JUDICIAL REVIEW AND JUDICIAL ACTIVISM
The concepts of judicial review and judicial activism are closely
related to each other. But, there is a difference between them. The
following points bring out this difference:
1. Since about the mid-20th century, a version of judicial review
has acquired the nick-name of judicial activism, especially in
the USA. In India, the participants in the debate mix up
judicial activism with judicial review. The former is that form
of latter in which judges participate in law-making policies,
i.e., not only they uphold or invalidate laws in terms of
constitutional provisions, but also exercise their policy
preferences in doing so.3d
2. The concept of judicial activism is inherent in judicial review,
which empowers the court to uphold the constitution and
declare the laws and action inconsistent with the constitution
as void. Judicial activism is necessary for ensuring proper
discharge of duties by other organs.3e
3. The term “judicial activism” came into currency some time in
the twentieth century to describe the act of judicial legislation
i.e., judges making positive law. However, there is no
standard definition of the term “judicial activism”. As a whole
it can be said that judicial activism stresses the importance
of judicial review and a powerful judiciary in the protection
and promotion of certain core rights.3f
4. The expanded concept of locus standi in connection with
PIL, by judicial interpretation from time-to-time, has
expanded the jurisdictional limits of the courts exercising
judicial review. This expanded role has been given the title of
“judicial activism” by those who are critical of this expanded
role of the judiciary.3g
5. Judicial activism, as regards constitutional cases, falls under
the rubric of what is commonly called judicial review, and at
the broadest level, it is any occasion where a court
JUSTIFICATION OF JUDICIAL ACTIVISM
According to Dr. B.L. Wadehra, the reasons for judicial activism
are as follows:4
(i) There is near collapse of the responsible government, when
the Legislature and Executive fail to discharge their
respective functions. This results in erosion of the confidence
in the Constitution and democracy amongst the citizens.
(ii) The citizens of the country look up to the judiciary for the
protection of their rights and freedoms. This leads to
tremendous pressure on judiciary to step in aid for the
suffering masses.
(iii) Judicial Enthusiasm, that is, the judges like to participate in
the social reforms that take place in the changing times. It
encourages the Public Interest Litigation and liberalises the
principle of ‘Locus Standi’.
(iv) Legislative Vacuum, that is, there may be certain areas, which
have not been legislated upon. It is therefore, upon court to
indulge in judicial legislation and to meet the changing social
needs.
(v) The Constitution of India has itself adopted certain provisions,
which gives judiciary enough scope to legislate or to play an
active role.
Similarly, Subhash Kashyap observes that certain eventualities
may be conceived when the judiciary may have to overstep its
normal jurisdiction and intervene in areas otherwise falling within
the domain of the legislature and the executive:5
(i) When the legislature fails to discharge its responsibilities.
(ii) In case of a ‘hung’ legislature when the government it
provides is weak, insecure and busy only in the struggle for
survival and, therefore, unable to take any decision which
displeases any caste, community, or other group.
(iii) Those in power may be afraid of taking honest and hard
decisions for fear of losing power and, for that reason, may
have public issues referred to courts as issues of law in order
to mark time and delay decisions or to pass on the odium of
strong decision-making to the courts.
(iv) Where the legislature and the executive fail to protect the
basic rights of citizens, like the right to live a decent life,
healthy surroundings, or to provide honest, efficient and just
system of laws and administration.
(v) Where the court of law is misused by a strong authoritarian
parliamentary party government for ulterior motives, as was
sought to be done during the emergency aberration.
(vi) Sometimes, the courts themselves knowingly or unknowingly
become victims of human, all too human, weaknesses of
craze for populism, publicity, playing to the media and
hogging the headlines.
According to Dr. Vandana, the concept of judicial activism can
be seen to be reflecting from the following trends, namely:5a
(i) Expansion of rights of hearing in the administrative process.
(ii) Excessive delegation without limitation.
(iii) Expansion of judicial control over discretionary powers.
(iv) Expansion of judicial review over the administration.
(v) Promotion of open government.
(vi) Indiscriminate exercise of contempt power.
(vii) Exercise of jurisdiction when non-exist.
(viii) Over extending the standard rules of interpretation in its
search to achieve economic, social and educational
objectives.
(ix) Passing of orders which are per se unworkable.
ACTIVATORS OF JUDICIAL ACTIVISM
Upendra Baxi, an eminent jurist, has delineated the following
typology of social / human rights activists who activated judicial
activism6 :
1. Civil Rights Activists: These groups primarily focus on civil
and political rights issues.
2. People Rights Activists: These groups focus on social and
economic rights within the contexts of state repression of
people’s movements.
3. Consumer Rights Groups: These formations raise issues
of consumer rights within the framework of accountability of
the polity and the economy.
4. Bonded Labour Groups: These groups ask for judicial
activism is nothing short of annihilation of wage slavery in
India.
5. Citizens for Environmental Action: These groups activate
an activist judiciary to combat increasing environmental
degradation and pollution.
6. Citizen Groups against Large Irrigation Projects: These
activist formations ask the Indian judiciary the impossible for
any judiciary in the world, namely, cease to and desist from
ordering against mega irrigation projects.
7. Rights of Child Groups: These groups focus on child
labour, the right to literacy, juveniles in custodial institutions
and rights of children born to sex workers.
8. Custodial Rights Groups: These groups include social
action by prisoners’ rights groups, women under state
‘protective’ custody and persons under preventive detention.
9. Poverty Rights Groups: These groups litigate issues
concerning draught and famine relief and urban
impoverished.
10. Indigenous People’s Rights Groups: These groups
agitate for issues of forest dwellers, citizens of the Fifth and
Sixth Schedules of the Indian Constitution and identity rights.
11. Women’s Rights Groups: These groups agitate for issues
of gender equality, gender-based violence and harassment,
rape and dowry murders.
12. Bar-based Groups: These associations agitate for issues
concerning autonomy and accountability of the Indian
judiciary.
13. Media Autonomy Groups: These groups focus on the
autonomy and accountability of the press and instruments of
mass media owned by the State.
14. Assorted Lawyer-Based Groups: This category includes
the critically influential lawyers’ groups which agitate for
various causes.
15. Assorted Individual Petitioners: This category includes
freelance activist individuals.
APPREHENSIONS OF JUDICIAL ACTIVISM
The same jurist Upendra Baxi also presented a typology of fears
which are generated by judicial activism. He observes: “The facts
entail invocation of a wide range of fears. The invocation is
designed to bring into a nervous rationality among India’s most
conscientious justices”. He described the following types of fears7
:
1. Ideological fears: (Are they usurping powers of the
legislature, the executive or of other autonomous institutions
in a civil society?)
2. Epistemic fears: (Do they have enough knowledge in
economic matters of a Manmohan Singh, in scientific
matters of the Czars of the atomic energy establishment, the
captains of the Council of Scientific and Industrial Research,
and so on?)
3. Management fears: (Are they doing justice by adding this
kind of litigation work load to a situation of staggering growth
of arrears?)
4. Legitimation fears: (Are not they causing depletion of their
symbolic and instrumental authority by passing orders in
public interest litigation which the executive may bypass or
ignore? Would not the people’s faith in judiciary, a
democratic recourse, be thus eroded?)
5. Democratic fears: (Is a profusion of public interest litigation
nurturing democracy or depleting its potential for the future?)
6. Biographic fears: (What would be my place in national
affairs after superannuation if I overdo this kind of litigation?)
JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT
Meaning of Judicial Restraint
Judicial activism and judicial restraint are the two alternative
judicial philosophies in the United States. Those who subscribe to
judicial restraint contend that the role of judges should be
scrupulously limited; their job is merely to say what the law is,
leaving the business of lawmaking where it properly belongs, that
is, with the legislators and the executives. Under no
circumstances, moreover, should judges allow their personal
political values and policy agendas to colour their judicial opinions.
This view holds that the ‘original intent’ of the authors of the
constitution and its amendments is knowable, and must guide the
courts.8
Assumptions of Judicial Restraint
In the USA, the doctrine of judicial restraint is based on the
following six assumptions9 :
1. The Court is basically undemocratic because it is non-
elective and presumably non-responsive to the popular will.
Because of its alleged oligarchic composition the court
should defer wherever possible to the ‘more’ democratic
branches of government.
2. The questionable origins of the great power of judicial
review, a power not specifically granted by the Constitution.
3. The doctrine of separation of powers.
4. The concept of federalism, dividing powers between the
nation and the states requires of the Court deference toward
the action of state governments and officials.
5. The non-ideological but pragmatic assumption that since the
Court is dependent on the Congress for its jurisdiction and
resources, and dependent on public acceptance for its
6. The aristocratic notion that, being a court of law, and
inheritor and custodian of the Anglo-American legal tradition,
it ought not to go too far to the level of politics–law being the
process of reason and judgment and politics being
concerned only with power and influence.
From the above, it is clear that all the assumptions (except the
second dealing with the judicial review) hold good in the Indian
context too.
Supreme Court Observations
While delivering a judgement in December 2007, the Supreme
Court of India called for judicial restraint and asked courts not to
take over the functions of the legislature or the executive, saying
there is a broad separation of powers under the Constitution and
each organ of the state must have respect for others and should
not encroach on others’ domain. In this context, the concerned
Bench of the court made the following observations10 :
1. The Bench said, “We are repeatedly coming across cases
where judges are unjustifiably trying to perform executive or
legislative functions. This is clearly unconstitutional. In the
name of judicial activism, judges cannot cross their limits
and try to take over functions which belong to another organ
of the state”.
2. The Bench said, “Judges must know their limits and must
not try to run the government. They must have modesty and
humility, and not behave like emperors.”
3. Quoting from the book ‘The Spirit of Laws’ by Montesquieu
on the consequences of not maintaining separation of
powers among the three organs, the Bench said the French
political philosopher’s “warning is particularly apt and timely
for the Indian judiciary today, since very often it is rightly
criticised for ‘overreach’ and encroachment on the domain of
the other two organs.”
4. Judicial activism must not become judicial adventurism, the
Bench warned the courts Adjudication must be done within
the system of historically validated restraints and conscious
minimisation of judges’ preferences.
5. “The courts must not embarrass administrative authorities
and must realise that administrative authorities have
expertise in the field of administration while the court does
not.”
6. The Bench said, “The justification often given for judicial
encroachment on the domain of the executive or the
legislature is that the other two organs are not doing their
jobs properly. Even assuming this is so, the same
allegations can be made against the judiciary too because
there are cases pending in courts for half-a-century.”
7. If the legislature or the executive was not functioning
properly, it was for the people to correct the defects by
exercising their franchise properly in the next elections and
voting for candidates who would fulfil their expectations or by
other lawful methods, e.g., peaceful demonstrations.
8. “The remedy is not in the judiciary taking over the legislative
or the executive functions, because that will not only violate
the delicate balance of power enshrined in the Constitution
but also (because) the judiciary has neither the expertise nor
the resources to perform these functions.”
9. The Bench said: “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, judicial restraint not only recognises the
equality of the other two branches with the judiciary, it also
fosters that equality by minimising inter-branch interference
by the judiciary. Second, judicial restraint tends to protect the
independence of the judiciary. When courts encroach on the
legislative or administrative fields almost inevitably voters,
legislators, and other elected officials will conclude that the
activities of judges should be closely monitored.
NOTES AND REFERENCES
1. His article entitled as “The Supreme Court: 1947” was
published in the Fortune magazine.
2. Black’s Law Dictionary.
3. Merriam Webster’s Dictionary of Law.
3a. V.G. Palishikar, Judicial Activism, AIR 1998, Journal
volume 8, p. 201.
3b. Black’s Law Dictionary.
3c. P.B. Sawant, Judicial Independence - Myth and Reality,
(Pune: Board of Extra Mural Studies), 1987, p. 70.
3d. V.N. Shukla and Mahendra Pal Singh, Constitution of
India, Eastern Book Company, Thirteenth Edition, 2017,
p. A-51.
3e. Adish C. Aggarwal, Judicial Activism in India, Chapter
12 in Judicial Activism in India: A Festschrift in honour
of Justice V.R. Krishna Iyer, Edited by Lokendra Malik,
Universal Law Publishing Co., First Edition, 2013, p.
126.
3f. Dr. Vishal Guleria, Judicial Activism: A Ray of Hope for
the Marginalised Masses, Chapter 22 in Judicial
Activism in India : A Festschrift in honour of Justice V.R.
Krishna Iyer, Edited by Lokendra Malik, Universal Law
Publishing co., First Edition, 2013, pp. 292–293.
3g. Justice A.S. Anand, Judicial Review-Judicial Activism-
Need for Caution, Chapter 1 in Judicial Activism in
India: A Festschrift in honour of Justice V.R. Krishna