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(Article) CSM - October 2012: Judicial Activism and Indian Democracy

Judicial Activism and Indian Democracy

Democracy is a form of government where people surrender some of their rights to a small elite body who are elected by people to rule over themselves. This elite body or the public representatives make law for the betterment of people. Once elected the public representatives remain all powerful till the end of the term by constitutional provision or otherwise because the constitution does not provide “call back” power to the people. The assumed principle is that  these public representatives should make laws for the benefit of the people. The loophole in our administration is that it is not very transparent and popular participation is bare minimum. The prescribed methods of control on government have been largely unsuccessful. So in such a situation a vacuum is created in governance i.e. who shall see the validity of a law.

The judiciary as such and by principle cannot act unless an aggrieved party does not knock its door. Hence this vacuum is substantial. As per the theory of “Power vacuum filling” some organ has to extend its influence and it is only natural for judiciary to extend its influence in the sphere. Many argue that it is against the principle of democracy. May be it is true. But there is a widening gap between the principle of democracy and the essence of democracy. Sometimes the hegemonic growth of the form and procedure of democracy become so vast that they make the spirit of democracy in danger. Now it is important to decide what is more important the procedure and principles of democracy like the legislative supremacy or the spirit of democracy i.e. welfare of people. The principle and procedure may be a means to an end but the end is always the spirit of democracy. So if means are abridged to attain the ends then democracy will be more successful than anything else. Judiciary under the veil of activism serves as a watch dog for preserving this basic spirit of democracy.


Judicial activism, like many catchwords, has acquired so many different meanings as to obscure more than it reveals. But at the same time it cannot be discarded as an intellectual void for the vagueness of the definition of the word for at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to  the spheres of executive and the legislative. Judicial activism simply means a pro-active judiciary which does no limit itself to the interpretation of law only but also sees if the law affects people adversely. The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.

Our Constitution & Judiciary

When India’s founding fathers wrote the Constitution, they created three arms — Parliament, Executive and the Judiciary — of the state that together were to be the keepers of the ideals of the nation as enshrined in the Constitution. Over the past several months, however, the Parliament has become dysfunctional, the Executive has abdicated its duties and the Judiciary is cracking the whip. Many think that it is cracking the whip a bit too much. I don’t think so. An active judiciary is one that takes its task of defending the fundamental rights of the people and their liberties against the onslaught of the state, earnestly. As far as judges are concerned, it is a matter of mindset. One judge could say that policy formulation is the job of the Executive and Judiciary does not need to intervene while another could believe that even in policy formulation, the Judiciary would need to step in to guard fundamental rights. The occasion for this often arises when the Executive fails to discharge its statutory, constitutional obligations. As a result of this failure, the fundamental rights of the people are violated.

The Indian judiciary has been constitutionally vested with the power of review to keep the Executive and Legislature within constitutional boundaries. The Judiciary can strike down any law that is beyond Parliament’s legislative competence or is violative of the Constitution. Similarly, it can strike down any Executive action, if there is any patent illegality or arbitrariness to it. A Supreme Court judgment becomes the law of the land. While Articles 13, 21, 32, 226 and 227 encompass this power, Article 142 hands a unique, extraordinary power to our Supreme Court to do ‘complete justice’ in any matter before it. This power has often been wielded unpredictably. It granted a divorce to a Hindu couple on the ground of irretrievable breakdown of marriage, even though no such ground exists under the Hindu Marriage Act.

To understand the concept of the judicial activism two theories have been expounded. The first theory “Power vacuum filling” theory says if in a system there is a vacuum because of the lack of any particular organ or the inaction of it, then other organs extend their influence to the vacuum created. Nature does not allow the vacuum to remain as such. In the government in certain areas vacuum is created due to the lack of interest in executive or legislative or simply due to the inaction and indifference in their part. This vacuum is filled by a dynamic judiciary. This is called the judicial activism. The other theory of “social want” says that people want something which is neither provided by the executive or the legislative. So judiciary took it upon itself to provide the wants of the people. So it became proactive and this proactiveness is called as judicial activism.

The doctrine of separation of powers is embedded in our constitutional scheme. Explaining the need for separation of powers, Montesquieu wrote: “There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator. If it were not separated from executive power, the judge would have the strength of an oppressor…”


Ruler of England Stuart King James I on November 13, 1608, entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: “This means that I shall be under law which is treason to affirm.” Coke replied: “the King should not be under man but should be under God and law.” Chief Justice Coke’s reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.

In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress. Chief Justice Earl Warren of the U.S. was one of the great activist judges who have profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants.

Indian context

When one talks about the judicial activism in India the following Supreme Court judgments come to mind.

1. Golaknath Vs. the state of Punjab

In a land mark judgment Supreme Court made it clear that no constitutional amendments can be made on the part III of the constitution and there by fundamental rights cannot be abridged by the legislature. By this pronouncement the Supreme Court has retraced its own judgment in Shankari Prasad case and Sajjan Singh vs. state of Rajasthan case that the fundamental rights can be amended. To remove the difficulties in the process the government in the 24<sup>th amendment amended article 368 empowering the legislature the power to amend the constitution.

2. Keshavananda Bharti Vs. the state of Kerala

In this landmark judgment Supreme Court first kicked the Hornet’s nest in the name of the basic structure of constitution. In this case the Golaknath case was over ruled and parliament regained the power of amending but Supreme Court explicitly said that the legislature by virtue of the amending power cannot change the basic structure of the constitution. But what constitutes the basic structure was not specified. To remove the constitutional hurdles in an amendment the government inserted clause 4 and 5 in the article 368 which mentions that limited power of amendment is a basic structure of constitution.

3. Minnerva Mills vs. the union of India and other states

In this case the supreme court over ruled that amending power is a basic structure of constitution. By this time the legislative and the judiciary in India were at loggerheads.

4. Sunil Batra vs. Delhi government

In this case Supreme Court reinterpreted the writ of Habeas corpus as not only producing a person in the court but also preventing a person jailed from the inhuman treatment in the prison.

5. M. C. Meheta vs. the sate of Tamil Nadu

In this case Supreme Court not only pronounced that deployment of children in hazardous factories is unlawful but also provided various guidelines for the children welfare.

Very recently the Union government has filed a review petition in the Supreme Court against its order in Ram Jethmalani’s case by which it created a Special Investigation Team (SIT) to probe the black money. It is for the first time that the court has taken over investigation by appointing a former judge of the Supreme Court as the chairman of the SIT and another former judge of the same court as the vice-chairman.

The Union government had appointed a high level committee comprising revenue secretary; deputy governor, RBI; Directors, IB, CBI, (financial intelligence unit) and ED; chairman, CBDT and DGs, Narcotics Control Bureau and Revenue Intelligence. The Supreme Court added three more members to it-two former judges and Director, RAW-and rechristened it as SIT. Even now the investigation will be done by the police, but what is unprecedented is that the SIT will report to a former judge. Under the Cr. Pc., the court cannot take over investigation though it can appoint any one to investigate impartially to its satisfaction.

In another case, Nandini Sundar- vs- Chhattisgarh, the apex court declared the appointment of special police officers (SPO) under the policy of arming of a civilian vigilante group, the Salwa Judum. In both these cases, the court has lambasted the neo-liberal economic policy of the government and held it responsible for the growth of black money and invidious inequality which has led to the menace of Naxalism. Both judgments are replete with condemnation of the state’s “amoral” economic policies in florid language. The question is: Are judges competent to do it? Chief Justice of India S. H. Kapadia, while delivering the Motilal Setalvad Memorial Lecture, diagnosed the disease properly and cautioned his colleagues against breaching the doctrine of separation of powers: “We do not have the competence to make policy choices and run the administration…Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the constitution.” Justice Kapadia rightly raised the issue of accountability. If one examines all the above cases it is pretty clear that judicial activism is against the legislative hegemony but the question may arise is it against democracy? Legislative is a democratic body. It gains the authority from the people. On the other hand judiciary has no popular mandate backing it. It is an independent authority. So by principle judiciary ratifying the legislature is against the principle of democracy. But arriving any such conclusion is not an easy task. There are many a loopholes in such straight forward criticism. Suppose the legislature makes the law which affects the liberty of people and which is a gross violation of human rights. In this case does the judiciary remain silent and follow the rule of law principle even if the law is inhumane? This is a question which has far reaching significance. There is no absolute solution for this. To analyze this one needs to reinterpret the word democracy itself.

In America, judges are chosen on ideological grounds by the presidents who are grilled by the Senate live on television. Thus, people know the ideological commitments of the person going to be appointed judge of the Supreme Court. Still, they tenaciously stick to the constitution. While in India, judges are apolitical and they have to interpret laws strictly within the mandate of the constitution. In the black money order, the court has clearly overstepped on the ground of protecting the fundamental right to equality (Article 14) and the right to life and personal liberty (Article 21). Law’s hands are long and some kind of amorphous connection can always be established with these rights to justify judicial intervention. Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the havenots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning.

There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses. The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen’s child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?

Sandeep Dogra