Anju Beniwal, Ph.D., Research Scholar, Department of Law, M.D.U. Rohtak
The ultimate goal of our constitution, enunciated by our worthy founding fathers, in its preamble is to secure ‘Welfare state’. For achieving this goal the constitution has created three organs- the Legislature, the Executive and the Judiciary ((Justice B.P. Jeeven Reddy, “JUDICIAL ACTIVISM: A PERSPECTIVE”, THE HINDU (Delhi) April 30, 2008)). The Judiciary has been entrusted with the task of protection and interpretation of basic structure of constitution and welfare of downtrodden section of society. In order to realize this grand goal the activist judges are the legal locomotive and the technology of transformation is inscribed under articles 32, 141, 142 and 144 and PIL is the versatile modus operandi in its forensic flavour ((Justice V.R. Krishna Iyer, “A FUNCTIONAL DIMENSION OF SOCIAL JUSITCE”, THE HINDU (Delhi) March 27, 2008; It is only after 34 years of the republic, the supreme court of India has at long last become the supreme court for Indians; see also Dr. Upendra Baxi, “Taking Rights seriously: Social Action Litigation in the Supreme Court of India”, The Review. International commission of Jurists No.29, p.37 (December 1982).)). And it must be stated that strategy evolved through judicial activism has come to be known as PIL ((Dr. N.V. Paranjape, STUDIES IN JURISPRUDENCE AND LEGAL THEORY, (2006) p. 378.)).
In this process, in recent years law-making has assumed new dimensions through judicial activism of law courts. The judiciary has adopted a healthy trend of interpreting law in social context ((Ibid.; See also Puja Khattar, “EVOLUTION OF CONCEPT OF SOCIAL JUSTICE AND JUDICIAL ACTIVISM” in K. Mahesh Bishwajit Bhattcharyya (ed.), JUDGING THE JUDGES (1999) p. 155; See also Nilanjana Jain, “JUDICIAL ACTIVISM IN ACTION : POLICE, PRISONERS AND UNDERTRIALS” NYAYA DEEP (The official Journal of National Legal Services Authority) vol. X issue I Jan,2009,p.74.)). Karl Marx has also observed: “Philosophers
have interpreted the world; our task is to change it. I would add in a similar strain, Judges have adjudicated disputes but their constitutional task is to transform society too ((Quoted by Justice V.R. Krishna Iyer, “JURISPRUDENCE STRUCTURES” In LEGALLY SPEAKING (ed.) (2004) p.259.)).”
TERMINOLOGY AND DEFINITION
Judicial Activism is a term used for the unconventional role played by the court when it gives value judgements and grants relief to the aggrieved person or persons according to its moral and social sense of justice in a situation where statutory law is silent or even contrary. It has also been defined by some jurists as “non- interpretive judicial review ((Bachan Lal Kalgotra, “EVOLUTION AND JURISPRUDENITAL DIMENSIONS OF JUDICIAL ACTIVISM” in Dr. Bhatia (ed.) JUDICIAL ACTIVISM AND SOCIAL CHANGE (1990) p.242)).”
Webster’s Dictionary of law defines Judicial Activism in following words: “The practice in the judiciary in protecting or expanding individual rights through decisions depart from established precedents or are independent of or in opposition to supposed constitutional or legislative intent ((Refer to http:// www. Merriam- Webster’s Dictionary of law. ; see also http:// dictionary. reference. com (last visited on 21 July 2009).)).”
In other words it signifies the anxiety of courts to find out appropriate remedies to the aggrieved by legislature and executive actions ((Refer to http: // www. two circles. net / legal-circle/ Public- interest- litigation- & judicial activism-kamaluddin-khan (last visited on 21 July 2009).)). In this context judicial activism in a dynamic process of judicial outlook in a changing society.
According to Black’s law Dictionary- “ Judicial Activism is a judicial philosophy which motivates judges to depart from the traditional precedents and new social policies ((Quoted in supra note 3)).”
In a way it is and absurd term- if we have a judiciary it is to be hoped that its members will be active. Present Finance Minister has called it a media coinage ((http:// www. ptinews. com/news/181034(last visited on 21 Oct. 2013); Dr. Pranab Mukhrjee said that the constitution was not a static document and therefore some contradiction and some resultant alteration might take place. In the history of constitution we have seen three major amendments. These have been possible due to close co-operation of law makers and higher judiciary.)). In this sense judicial activism is not an increased judicial activity, enthusiasm or a keen sense of the value and importance of justice in action, but judicial self-awareness, responsibility and concern in the light of socio-economic existence and distribution of power in society. Judicial activism is nothing but participation in the constitutional progress which is in a different way a fulfillment of the functions of welfare state and enforcement of the resolve of our government to make people happy and well-fed. Judicial activism then is judge’s self identification and publicizing the popular social zeal for the cause of downtrodden or the ‘Dridra Narayan’ of our nation ((R.N. Sharma, “DIRECTIVE PRINCIPLES OF JURISPRUDENCE AND JUDICIAL ACTIVISM” in K.L. Bhatia (ed.), JUDICIAL ACTIVISM AND SOCIAL CHANGE (1990)p. 225; see also fertilizer corp. Kamgar Union v. Union of India (1981) SC 344; Dr. Upendra Baxi and other v. State of U.P. and others (1986) 4 SCC 106; Bandhua Mukti Morcha v. Union of India and others (1984) 3 SCC 161.)).
JUDICIAL ACTIVISM V. SEPARATION OF POWERS
Per-se judicial activism is not problematic. The real issue is only about its legitimate limits. The basic design of the constitution is premised on the principle of separation of powers introducing the system of checks and balances. Conceptually, there is no difficulty in demarcating the respective functional areas of the three principal organs of the state- the Legislature, the Executive and the Judiciary. Functionally, however, in the course of dispensation of justice, at times situations do arise that require correction of an executive order or removing some legislative lacuna. In such situations sometimes the court may find itself involved in a policy making decision that partake the character of political decision making ((Prof. Virendra Kumar. “JUDGES V. JUDGES” THE TRIBUNE (New Delhi) December 21, 2007)). In addition, the question of balancing of judicial activism and separation of powers arises ((See also Surat Singh, “JUDICIAL ACTIVISM- HOW WISE, HOW OTHER WISE” In K. Mahesh Bishwajit Bhattacharyya (ed.) Judging the judges (1999) pp. 141, 142 and accompanying text;)). On February 18, 2008 at a function of the high court bar association in Nagpur, lok sabha speaker Somnath Chatterjee (as he then was) warned that attempts by the judiciary to usurp the onerous responsibility of the country’s governance would have serious implications ((Quoted in Ramesh Thakur, “JUDICIAL ACTIVISM, ROMANTICISM AND OVERREACH” THE HINDU (Delhi) March 4, 2008)).
In this connection, Dr. Surat Singh ((Senior Advocate of Supreme Court))has taken a review of dominant trends of the Supreme Court decision making over last five decades as under ((Dr. Surat Singh made this observation in his “JUDICIAL ACTIVISM- HOW WISE, HOW OTHERWISE” published in K. M. Bishwajit Bhatta charyya (ed.) JUDGING THE JUDGES)):
Period of excessive difference towards legislative and executive wings of the government [1950 to 1966] ((A.K. Gopalan v. State of Madras, (AIR 1950 SC 27).)).
Zealous protector of fundamental rights ((For example, see Golak Nath v. state of Punjab (AIR 1967 SC 1643).)).
Self-declared protector of fundamental values of the constitution ((Keshvanand Bharti v. state of kerala (AIR 1973 SC 1461).)).
The implementation of Basic Structure theory against Smt. Indira Gandhi herself  ((Smt. Indira Gandhi v. Raj Narain(AIR 1975 SC 2299).)).
The Dark period of Emergency and the retreat of Judiciary in its cell ((See A.D.M. Japalpur v. S. Shukla (AIR 1976 SC 1207).)).
Post – emergency, liberal interpretation of traditional standards of locus standi ((See Menaka Gandhi v. Union of India (AIR 1978 SC 597).)).
The Supreme Court in search of its identity – exploring the potential and limitation of its role [late 1980s] ((See Mohd. Ahmed Khan v. Shah Bano Begum[(1985) 2 SCC 556].)).
Attaining the maturity and asserting its self – importance (mid 1990s) ((The remarkable cases of this period were: (a) Supreme Court on Record Association v. Union of India [(1993)4 SCC 441] (b) S.P. Gupta v. Union of India (AIR 1982 SC 149) (c) S.R. Bommai v. Union of India [(1994) SCC 1.)).
Supreme Court in the 21st century – utilizing its potential to the fullest extent and acknowledging its limitations ((I.R. Coelho (dead) by L.R. v. State of Tamilnadu [(2007)(1) SC 137])).
As, here we are more concerned with the controversy between judicial activism and separation of power, there are two different view-points expressed by judiciary itself. There is a series of case laws where judiciary has played its pro-active role. On the other hand, in some cases judiciary itself has abstained from interfering in the respective spheres of the executive and the legislature and some of them are given below:
In Ram Jawaya Kapur V. State of Punjab ((AIR 1955 SC 549))a constitution Bench observed:
“12………..The Indian constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption by one organ or part of the state, of functions that essentially belong to another ((See also Asif Hameed v. State of J. & K. (AIR 1989 SC 1899) where a three-Judge Bench of Supreme Court observed: [in para 17-19] “No organ can usurp the functions assigned to another. ——— the only check on our own exercise of power is the self imposed discipline of judicial restraint.)).” Similarly, in Union of India V. Deoki Nandan Agarwal ((AIR 1992 SC 96))the apex court was of the view that the court cannot direct the legislature to make a particular law.
In 1994 in Tata Cellular v. Union of India ((AIR 1996 SC 11))the apex court observed that the modern trends points to judicial restraint in administrative action. The court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the court does not. In the words of Neely C.J. ((Quoted from Bernard Schwartz in Administrative Law, 2nd Edn, p. 584)),
“ I have few illusions about my own limitations as a judge ………….. I am not an accountant, electrical engineer, financer, banker, stock broker or system management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of judge to act as a super board, or with the zeal of a pedantic school master substituting its judgement for that of the administrator.”
Jagdambika Pal Case ((9 SCC 95))of 1988 involving U.P. Legislative assembly and Jharkhand Assembly Cases of 2005 are two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers and was described by hon’ble Justice J.S. Verma as aberrations, which he hoped that the Supreme Court will soon correct.
In the same way in Rajindra Singh v. Prem Mai ((2007  SCC 37; see also Suresh Seth v. commissioner, Indore Municipal Corporation (AIR 2006 SC 767); Bal Ram Bali v. Union of India [(2007) 6 SCC 805]; Vemareddy Kumara swamy Reddy v. state of Andhra Pradesh [(2006) 2 SCC 670;] Indian Drugs and Pharmaceuticals Ltd. V. Workmen[(2007), SCC 408]; S.C Chandra v. State of Jharkhand [(2007) 8 SCC 279]))the court even rejected the justification often given for judicial encroachment into the domain of executive or legislature in the cases where the other two organs are not their jobs properly as the same allegation can be made against the judiciary too because there are cases pending in courts for half a century.
ARAVALI GOLF CLUB CASE ((Divisional Manager, Aravali Golf Club and another v. Chander Hass and Another, (2008), SCC 683))- Advocating self restraint:-
On December 10, 2007 the Supreme Court added a new chapter to this controversy when the two judge bench consisting of justice A.K. Mathur and Markandey Katju decried the tendency of “Judicial activism” betraying overreach that was discernible to them in two earlier pronouncements of the apex court itself ((See also supra note 12 and accompanying text)). Court held that creation, sanction of posts is a prerogative of the executive or legislative authorities, and the court cannot arrogate to itself this purely executive or legislative function and direct creation of post in any organization. Referring Montesquieu ((Montesquieu : THE SPIRIT OF LAWS))the learned judges said that it is not proper for any of three organs to encroach upon the domain of another, otherwise the delicate balance in the constitution will be upset, and there will be a reaction. As pointed out by Hon’ble Mr. Justice J.S. Verma, the former C.J. in his Dr. K.L. Dubey Lecture:
“Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bunglow to a judge, specific bunglows for the judges pool, monkeys capering in colonies, stray cattles on the streets, clearing public conveniences, levying congestion charges at peak hours at airports with heavy traffic etc. under the threat of use of contempt power to enforce compliance with its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.”
The judges also pointed out that recently the court have apparently if not clearly, strayed into the executive domain or in matters of policy. For instance the orders passed by the high court of Delhi in recent time dealt with subjects ranging from age and other criteria for nursery admission, unauthorized schools, criteria drinking water in schools, numbers of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of subways, the nature of buses we board, the legality of construction in Delhi, identifying the buildings to be demolished, the size of speed breakers on Delhi roads, autorickshaw overcharging, growing frequency of road accidents and enhancing of road fines, etc ((In this judgment court also quoted following observation Justice A.S. Anand: “with a view to see that judicial activism does not become ‘judicial adventurism’. …. They must remember that judicial activism is not an unguided missile ………. (and) The judiciary should act only as alarm bell.)).
The court also observed that if the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections, and the remedy is not in the judiciary taking over the legislative or executive functions, as the judiciary has neither expertise nor the resources to perform these functions ((See also Justice H.R. Khanna, “THE ROLE OF THE JUDICIARY” in K.M.B. Bhattacharyya (ed.), JUDGING THE JUDGES, (1999) p. 25 and accompanying text)). In addition, of the three organs of the state, only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with utmost humility and self restraint.
The court also observed that judicial restraint complements the twin overarching values of the independence of the judiciary and the separation of powers.
THE RIPPLING EFFECT OF ARAVALI GOLF CLUB CASE:
The above observations made in this case created a rippling effect in as much as it dissuaded another bench of two judges manned by Justice S.B. Sinha and Justice H.S. Bedi to hear a pending PIL on sex workers plight and the Delhi High Court a petition on the rehabilitation of beggars and action against a begging racket in the city employing small children ((See Supra note 12 and accompanying text.)).
After that on December 13, 2007, took place another event when a three judge bench headed by chief Justice K.G. Balakrishanan took a stern stand on the observations on “Judicial activism and overreach” made in Aravali Golf Club case by a two judge bench, saying they are not bound by the observations made in that case, while entertaining a PIL on the condition of widow in Vrindavan and Mathura in Uttar Pradesh.
CJI’s remarks got immediate support from former C.J.I P.N. Bhagwati, Who said, “To my mind if the C.J.I. has made such a statement in the court he is perfectly right and fully justified ((OVERREACH ORDER NOT BINDING: CJI”, THE TIMES OF INDIA (Delhi) December 14, 2007)).”
But recently, on March 11, 2009 in Vishnu Dutt Sharma v. Manju Sharma ((IRRETRIEVABLE BREAKDOWN IS NO GROUND FOR DIVORCE: COURT”, THE HINDU (Delhi) March 12, 2009))the two judge bench consisting justice Markandey Katju and Justice V.S. Sirpurkar denied to grant divorce on the ground of irretrievable breakdown of marriage and observed, “If we grant divorce on this ground, then we shall by judicial verdict be adding a clause to section 13 of the Hindu Marriage Act, 1955. In our opinion this can be done only by legislature and not by the court.” But interestingly, earlier courts have been granting divorce on the same ground ((See also Satish Sitole v. Ganga, THE HINDU (Delhi) July 20, 2008)).
In yet another case referring to objections raised by two judge bench to the High Court entertaining issues relating to free beds for poor patients in private hospitals which got pubic land at throwaway prices by promising free treatment to under-privileged, the supreme court consisting three judge bench asked what was wrong in it and encouraged the court to entertain PIL relating to social issues ((SUPREME COURT BACKS DELHI HIGH COURT ON PILs, BUT SAYS NEED FOR GUIDELINES”, THE TIMES OF INDIA (Delhi) April 10, 2008)).
Taking stock of the situation on the Mumbai Terror Attacks of November, 2008 a former Attorney General of India filed a petition before the Supreme Court seeking to better equip the Indian Police. The court asked the government about the steps taken in this direction ((Abhinav Chandrachud, “DIALOGIC JUDICIAL ACTIVISM IN INDIA”, THE HINDU (Delhi) July 18, 2009)).
In another glaring recent example the Supreme Court issued a notice to the union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian Students in Australia, who have been facing racially motivated attacks ((Ibid.)).
The next and almost equally striking instance is a Supreme Court order in Mayawati Statues Matter a two judge bench of Supreme Court refused to restrain U.P. Government from installing the statues of Mayawati and other Dalit Leaders, saying that if the State Cabinet has approved the expenditure, then we cannot do anything and asked the applicant to first go to High Court where some other relating petitions are pending ((SUPREME COURT DECLINES TO INTERFERE IN U.P. STATUES CASE”, THE HINDU, (Delhi) July 11, 2009)).
Recently, Supreme Court on July 10, 2009 issued notice to the Union Government on a Special Leave Petition challenging the Delhi High Court Judgement Declaring Section 377 of Indian Penal Code, unconstitutional and refused to grant stay against the High Court Judgement ((APEX COURT TAKES A PLEA AGAINST GAY SEX”, THE HINDU (Delhi) July 10, 2009)).
In this way we can say that the recent trends, which the Supreme Court is following, are inclined towards solving problem of all sections of society along with maintaining the balance of powers between all the three organs.
JUSTIFICATION AND NEED FOR JUDICIAL ACTIVISM:
After a perusal of case laws it needs to be appreciated that there is nothing wrong with judicial activism as per-se judicial activism is not problematic. The real issue is only about its legitimate limits as in the course of dispensation of justice, at times situation do arise that require correction of an executive order or removing some legislative lacuna. In such situations sometimes the court may find itself involved in a policy-making decision that partake the character of political decision. And in such circumstances court is justified in doing so.
Justifying, appreciating and encouraging the guided activist approach of the High Court, the 3 judge bench of Supreme Court defended Delhi High Court decision to entertain Public interest petition relating to various issues faced by citizens. Further the bench said “If the court did not entertain the matter relating to irregularities in admissions in schools and colleges, which affect the careers of thousands of students, at a time when the state government was not taking action against the guilty, who would come to the rescue of common man?” if not the court ((See supra note 42 and accompanying text)).
Former Justice of India A.M. Ahmadi Explained the current phase of activism in his zakir Hussain memorial lecture in February, 1996, when he said, “courts would never have resorted to (activism) had the other two democratic institutions functioned in an effective manner ((Report, “JUDICIARY TAKES OVER”, OUTLOOK, March 6, 1996 p. 13)).”
In a recent case the Bench headed by the CJI came up with a strongly argued rejoinder to the advocacy for courts to follow a hands off policy towards PILs and asked “can the common man rush to the C.M. for redressal of violation of their right ((Supra note 42.))?
Similar view can be expressed in cases of legislative inaction. For instance in Naveen Kohli v. Neelu Kohli (( 3 SC 491))the apex court had made a recommendation that “this court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.”
After this judgement, in case of legislative inaction, the Supreme Court has been granting divorce in cases of irretrievable breakdown of marriage while exercising the power under Article 142 ((Power of Supreme Court to pass any order to ensure complete justice.))of the constitution ((See also Satish Sitole v. Ganga, THE HINDU, (Delhi) July 20, 2008)).
But recently (as we have discussed earlier) in Vishnu Dutt Sharma v. Manju Sharma ((THE HINDU, March 12, 2009))the court denied to grant divorce on this ground calling it a legislative action to make law by saying “if we grant divorce on this ground then we shall by judicial verdict be adding a clause to section 13 of the Act……… this can be done only by legislature.
Thus, in such a state of things there arise a need of judicial activism as there is no remedy with the aggrieved person.
To conclude, we can say that the Indian Supreme Court’s gaze has now gone beyond the protection of the socially and economically downtrodden, and into the realm of public administration. For example, the Supreme Court issued guidelines in 2006 to reform the police administration. Similar guidelines have been issued increasingly in legislative spheres. Because of these opinions, at least in theory, employer must now act against sexual harassment at workplace ((Vishaka v. State of Rajasthan (AIR 1997 SC 3014).))and police officer must follow procedures prior to an arrest, mildly similar to the American Miranda Right , (In India, they could perhaps be called Basu ((D.K. Basu v. State of W.B. [(1993) 2 SCC 746] see also criminal procedure code (Amendment ) Act, 2008))rights] ((Supra note 43)).
But the critics of this concept also argue that it violates the principle of separation of powers. They say that because the purpose of the judiciary is to interpret existing laws and policies, any action that is not done strictly in accordance with existing law must be activism. Indeed they continue, the legislative branch is explicitly empowered by the constitution deliberately has an amending process (involving the legislature and not the judiciary) consequently, any change to the laws or the constitution outside this framework is itself illegal ((Refer to http:// en. Wikipedia. Org)).
Justice V.R. Krishna Iyer says about judicial activism, “It is not opium but a pervasive power and a brooding omnipresence ((For explanation see supra note 5.)).”
Further Justice Khanna raises a point of structural relevance of structural terrorism, “Criticism of judiciary should be constructive and not destructive. Must it aim to habilitate the judicial system and not to debilitate it ((See supra note 5 and accompanying text.)).”
“A stream must not rise above its source” is an observation ((Quoted by Tina Hunter, “JUDICIAL DECISION MAKING IN THE HIGH COURT IN ORIGINAL JURISDICTION: THE EBB AND FLOW OF LEGAL REASONING IN AUSTRALIAN PERSPECTIVE”, JOURNAL OF INDIAN LAW INSTITUTE, Vol. 1, January – March 2009, p. 12.))made by Australian Court in Australian Communist Party v. Commonwealth (1951) 83 CLR 1. In this context Tina Hunter has reviewed the Australian separation of powers and judicial activism. She puts a question. “has the judicial stream risen above its sources exceeding its powers in interpreting the law in the separation of powers or has the judicial decision stream merely changed course, as it meanders its way across the Australian political landscape.” The determination of the answer, she left, to the time ((Id. at p. 127)).
As far as the Indian Judicial stream is concerned, we can say that a guided activist approach is always justified in this direction. In this context Justice J.S. Verma has observed “Judicial activism should be neither judicial adhocism nor judicial tyranny ((http:// www. Indian express. Com /news (last visited on 21 Oct. 2013): Justice Verma, for instance, is best remembered for rocking the political class in 1990s with Jain Hawala case: See also D.K. Basu case and Vishakha case.)).” He adds further, “I see no reason for any conflict between the different limbs of government, which are all meant to serve the common purpose of public good deriving their authority from the common source the constitution of India depicting the will of the political sovereign ‘we, the people of India ((Ibid.));’
As pointed out by Justice Holmes, The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.
As it is flexible separation of powers in our constitution, the flexibility lies in mutual complimentality and co-operation and accordingly the doctrine of judicial activism and the consequent powers of the judiciary shall be interpreted in the same spirit.