November 26, 2020

Implications of Judicial Activism on The Indian Democracy

What Does Judicial Activism Mean?

A very pertinent topic in the context of the Indian scenario, Judicial activism helps to reflect the transformative and dynamic essence of our constitution. It refers to those instances when our judiciary takes into consideration all the social and cultural factors of our society and considers the voice of the people instead of solely relying on the script of the law. If it weren’t for this freedom, most of the sensitive issues such as the Ayodhya incident or the Tripple Talaq practice in recent times, would not get the most favourable judgements for the society. The major responsibility of the state, as laid down by its guiding book ‘The Constitution’ is to protect the fundamental rights (FR’s) by ensuring equality, justice, fraternity and brotherhood and to implement the directive principles of state police (DPSP)[1]. To ensure that the state upholds its responsibilities, the Indian judiciary reviews state actions and plays the role of a protector and preserver of the sanctity of the Indian constitution.

Articles 13, 32 and 226 of the constitution provide the high courts and supreme court the power of judicial review and measures to move to court and declare any legislative, executive or administrative actions as void, if they are in violation to the constitution[2]. Bestowed with this constitutional duty, the judiciary takes an active role to protect ones Fundamental rights against unfair, unreasonable acts and omissions of the state using active decision making skills where “personal views of the judges”[3] play a crucial role in decision making and in the implementation of the rule of law which according to Justice J.S Verma is “essential for the preservation of a functional democracy”.

Law, which is meant to have a social purpose, is aimed at the betterment of society. It is not always possible for the legislature to visualise all possible situations that may arise in the future that would need the support of the law. Consequently, the judiciary under the constitution is conceived as an attribute of social reform every time a development in law has to be made, or an interpretation of new situations has to be done. The concept of judicial creativity or ‘craftsmanship’ fills the gap between the law as it currently is and the law as it ought to be, taking social values into consideration. This judicial creativity can also be termed as judicial activism [4].

Judicial activism through social action litigation taking social values into consideration was first seen in Bihar’s under trials case in 1979 where prisoners had been imprisoned for terms longer than the maximum imprisonment period while waiting for trial. Here the court declared that even those who are poor and needy should get the disposal of legal services under the guarantee of article 21. Moreover, new courts were to be built and additional judges were to be appointed to ensure a just and speedy trial.[5] However, with all this comes the very important discussion of whether this gives our judges extra freedom and unregulated power as their technical role is to apply the law that is formed by the legislative who in effect indicate what the people want. Does this concept undermine the doctrine of separation of powers. Keeping this in mind, we look to analyse this concept, which doesn’t have any statutory backing behind it, in detail.

Background Behind the Topic of Discussion: Judicial Activism

Before we go into the main questions of discussion, it is essential to discuss the background and evolution of judicial activism in India. From back in 1893 when Justice Mahmood of the Allahabad High Court delivered a dissenting judgement in a case which dealt with an under trial who couldn’t afford a lawyer, laying the ground for judicial activism way before the Government of India Act was passed in 1935.[6]

There are a few decisions by the Supreme Court that reflect, and further help establish the concept of judicial activism in India which are as under:

  1. The “basic structure and framework of the constitution” can’t be altered and since it was established in the Keshavananda Bharti vs State of Kerala case of 1973 which gave the judiciary the power to nullify any amendment to the constitution, statute, act or law that would violate this basic structure doctrine of the constitution[7]
  2. All public, quasi-public authorities such as The BCCI, defined under the right to information act of 2005 which began as government bodies but later became separate entities have been included in the definition of ‘state’ to widen the scope of successive judgements for the enforcement of fundamental rights.
  3. The Supreme Court has used judicial legislation or rulings that are thought to be based on personal opinions under article 141[8] which declares the law to be binding on all courts within the Indian territory to fill a gap created due to laws which are ‘non liquet’ or not clear creating a ‘legislative vacuum’. This idea stems from Vishaka vs State of Rajasthan (1997) which will be discussed later.

Indeed, it is challenging to trace the origin of judicial activism in post-1947 India due to the lack of uniformity in all the jurisdictions and areas of the Supreme Court. Activism varied in the sense of interpreting the constitution differently, protecting the fundamental rights of the citizens, the widespread nature of judicial review, expansions along the lines of article 21, defining certain directive principles as FR’s, etc.

Hence after defining the vastness of this topic and establishing judicial activism as an abstract concept, we realise that it means differently to different people.

Reasons for The Growth and Existence of Judicial Activism

From being considered as a ‘judicial creativity’ and a judicial ‘social and cultural’ revolution to the dynamism of judges, the causes for the emergence of judicial activism are widespread and hard to point out because of the divergent ideas and interests of different classes of our society dealing with this topic of judicial activism and also judicial power. However, there are still a few universally accepted facts that force a court or a judge to be proactive while employing their judicial duties involving the law

1. Malfunction of the accountable government- naturally, when the two political pillars of the government will cannot execute their duties and responsibilities, there arises the prevalent question of the collapse of government. The primary characteristic of a successful democracy and constitutional government is a responsible government. The function of the legislative is to pass laws and policies to rule the nation. The president along with the two houses namely the Rajya Sabha and the Lok Sabha ensure that necessary legislation is made to account for the transforming times and situations where the organisational agencies of the government are incapable of rendering the functions of administration. This leads to loss of accountability of the government and confidence in the constitution, a situation which is taken care of by the judiciary when the judiciary steps into domains usually meant for the legislative and executive to exercise judicial legislation,

2. A constant pressure on the judiciary to provide assistance when required- a well-known establishment is that the judiciary cannot play a passive role when fundamental rights (part III) or human rights of citizens are violated by some third part or perhaps even the government. Being the guardian of the constitution which was essentially established by Indian citizens to protect their rights, we know that the judiciary plays an important function in improving the depleting circumstances of the citizens especially because citizens look up to the judges to protect their rights. Articles 13, 32 and 226 of the constitution make this very clear.

a. Under article 13, any law which violates the FR’s shall be declared void by the Supreme Court and the 18 high courts.[9]

b. Under article 32, the SC can issue any writ to order, which essentially allows it to order, direct any person or organisation that is violating the FR’s of citizens. [10]

c. Under article 226, the High court’s enjoy the power to impose the fundamental rights or other rights in part III on citizens by invoking the writ jurisdiction. These vast powers of judicial review are often the reason for the widespread nature of judicial activism.[11]

Much like Upendra Bakshi, a legal scholar and professor of law had pointed out when he said that the Indian nation is ‘obsessed with judicial Salvation[12]. This pressure on the judiciary leads them to play an activist role.

3. Practicality and scope of law-making- There is a saying in administrative law that says that even if the parliament and legislatures work 24 x 7 all throughout the year, they wouldn’t be able to cater to the ever-changing needs of the modern society.[13] Despite there being a vast array of laws before and after the constitution was formed, there are always a few aspects that are not covered by the legislature. This could be due to lack of attention, exposure towards an issue, not much public voice or activity regarding the same or even due to the indifference of the legislature.

An eminent case law that talks about this ‘legislative vacuum left open’ is Vishaka v State of Rajasthan[14] a 1997 case where Vishaka and other women filed a Public Interest Litigation (PIL) for the enforcement of fundamental rights of employed women under articles 14, 19 and 21 against the state of Rajasthan and the Union of India. Bhanwari Devi where a social worker was brutally gang-raped for the mere reason of stopping child marriage[15]. Here the Supreme Court declared that in the absence of any law to provide the proper enforcement of basic human rights of gender equality and a guaranty for the protection against sexual harassment and abuse particularly in the workplace, specific guidelines and regulations were specially laid down for observance at all workplaces and other institutions until a formal legislation would be adopted for the same.

The above reasons are a few of the reasons that prompt the judiciary to take an active role or passive role depending on the internal and external circumstances in the society and government at that time.

Merits of Judicial Activism.

The goal of the constitution, as established in the preamble of India, is to deliver social justice, political liberty, and economic liberty through belief, faith and worship. This is the reason why the constitution created 3 state organs. While the legislature, inclusive of the parliament and state legislatures, has performed its duties satisfactorily, the executive has failed to perform its duties of implementing laws which provides a reason for the judges and courts to respond to the situation by giving directions and relief. What judicial activism does is that it helps stabilize public opinion in law and consequently restabilizes the pillars of democracy[16]

Judicial activism is based on the concept of how judges interpret the law and its implementation. This rules out the intervention of traditional political influence that is prevalent in other government branches because the judiciary is the ultimate interpreter of the articles and provisions in the constitution, a guardian of our fundamental rights that is aimed at safeguarding our interests. Consequently, constant public gaze is on the decisions that the judiciary takes and hence to maintain the trust factor that the general public has placed on judges, judicial activism also ensures a greater responsibility on the part of the judges to maintain their stature in the eyes of the common man. With the power to indirectly voice their own opinions, judicial activism also potentially reduces the possibility of misuse of power by the other two branches of the constitution. One may argue that by giving an individual the liberty to question the validity and attributes of specific laws that would impact millions is unjust. However, judicial activism has its own mechanism of ‘checks and balances’ where even if a particular judgement by a judge may be unfair, it can still be overruled due to the appeals system, by another court or even the supreme court. Therefore, a complex process is followed before a final resolution is derived at.

Demerits of Judicial Activism and The Concept of Judicial Overreach

In recent years there has been some criticism of judicial activism by those who favour judicial self-restraint. It is declared that respect should be given to the legislature and that political discourse and debates in the parliament are the best way to derive at decisions in a democratic country. It is believed that an element of uncertainty is introduced due to judicial activism because people may take chances to violate the law and many decisions that may have been concluded from previous laws may be put in question because there is always a chance for the judiciary to bring about a change it. In effect the judiciary is delegating a function that belongs to the legislative to itself.

Lastly, a major issue that arises out of judicial activism that is used by the opposition to the topic is of judicial activism turning into a concept called judicial overreach. The legislative branch always feels that the courts in the form of the judiciary over exceed their powers to become an independent law making body violating the basic principle that stemmed the creation of the judiciary: to interpret laws and not to make them.

A few recent cases show the above concept of judicial overreach:

1. Shyam Narayan Chouskey v Union of India[17]

The Supreme Court on December 2016 made it mandatory to play the national anthem before feature films where all present are obliged to show respect by standing up

2. State of Tamil Nadu v K.Balu[18]

Here, ruling on a PIL about road safety, the Supreme Court banned the sale of liquor at any hotel, stall, restaurant that was 500m of any national or state highway

The following case laws just point out the unnecessary intervention of the judiciary in government affairs. Direct Principles of State Policies are firstly policies that cannot be implemented forcefully by but just suggested, since they are administrative matters. Moreover, this wasn’t a fit case for the court to use article 142 which talks about the power of the Supreme Court to pass decrees in the absence of any information by the government

Continuing from the previous concept of judicial overreach, we can understand that the main topic of discussion is how far judicial activism is justified and to what extent is the involvement of judiciary in decision making acceptable. One thing for sure is that when the fine line of distinction between judicial activism and judicial overreach is crossed, the very spirit and intent of the constitution is destroyed. While judicial activism aims to ease the power of the legislature by reducing conflict firstly between the citizens and the government and secondly the executive and the judiciary, judicial overreach can create conflict between the same. Furthermore, while judicial activism helps in solidifying peoples trust and faith in the judiciary, if overused, it may appear as an act of “tyranny of the unelected,” as said by our finance minister Arun Jaitley. No one person or body should have absolute power.

Similarly, there should be restraints to the power of the judiciary as well. As observed in divisional manager, Aravali Golf Course v Chander Haas[19] “Judges must understand the scope of their power and ability to take action. They must act within their limits, be modest, and also realize the broad separation between the legislature and the executive. Keeping the arguments put forth above in mind, if judicial activism is used judiciously and wisely, it will ensure continuous and effective progress of the Indian democracy.

[1] The Preamble, The Constitution of India,[1949]

[2] L. Chandra Kumar v Union of India, (1997) 3 S.C.C. 261.1

[3] Blacks law dictionary

[4] Shrivastava, Geeta “Judicial Activism in India and Abroad” Central Indian Law Quarterly, Volume 14, 2001, p. 155.

[5] Hussainara Khatoon v. State of Bihar, AIR 1979 ,SC 1377

[6] http://www.allahabadhighcourt.in/event/Justice_Syed_Mahmood_M_Hidayatullah.pdf

[7] Keshavanad Bharti v. State of Kerala AIR 1973 SC 1463.

[8] The Constitution of India,1949 article 141

[9] The Constitution Of India 1949, article 13

[10]The Constitution Of India 1949, article 32

[11] The Constitution Of India 1949, article, 226

[12] Upendra Baxi, Supra note 143….10

[13].Massey, Administrative Law (Eastern Book Company, Calcutta).

[14] Vishkha v State or Rajasthan, A.I.R. 2004 S.C

[15] APURVA, “Sexual Harassment at Workplace” (Indian Express) accessed October 25, 2018

[16] Sahay, Judicial Accountability: Issues,Vol. 45, No., 1-4, 1999,

[17] Shyam Narayan Chouksey v. Union of India, 2017 SCC Online SC 129

[18] State of Tamil Nadu v K.Balu, CIVIL APPEAL Nos .12164-12166 OF 2016

[19] Aravali Golf Course v Chander Haas (2008)1 S.C.C 683

Author: Tejas Kothari (Jindal Global Law School, O.P. Jindal Global University)

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