Judicial Activism and Indian Democracy (2004)
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.
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
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
3. Minnerva Mills vs. the union of India and other
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
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
have-nots 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?
Is Democracy Under Threat?
No, Given the above scenario, judicial activism may not be a
derailing force provided it does not go into excess. In fact limited judicial
activism may keep democratic evolution on proper track and ensure that chaos and
excessive behavior does not develop. Independence is not over interference.
Judicial activism can only be effective, it is sparsely used. Media needs to
show maturity. Over hyping judicial activism is going to be counterproductive.
Political parties need to show maturity and rather than branding the verdict as
conspiracy against democracy, should avoid the collision course. The rise of
judicial development can potentially lead to stable democracy provided the
stakeholders show restrain and maturity.
The great contribution of judicial activism in India has been
to provide a safety valve in a democracy and a hope that justice is not beyond
reach. Judicial activism has come to stay in India and will prosper as long as
the judiciary is respected and is not undermined by negative perceptions, which
have overtaken the executive and the legislature. There is concern among the
public about lack of transparency in judicial appointments and a sense of
increasing unease because of a lack of a credible mechanism to deal with serious
complaints against the higher judiciary. For instance, there are laws to prevent
children from working in hazardous occupations. Now there are parents who
willingly let their children work because of economic necessities. The factory
owners fix the inspectors and the laws that are supposed to protect the children
are not implemented. In such cases, a court hearing a complaint from a bonafide
NGO can order the state to enforce the laws because by not implementing them it
is violating the children’s fundamental right to a healthy life. That is
activism in the right sense.
Many critics are of the opinion that the judges become
proactive to come to limelight because they are devoid of limelight compared to
the legislature and the executive. There is a great chance of PILs being
misused. Anybody can file PILs for any petty reasons and thereby there will be
such huge volumes of litigations pending on the floor of court that it will one
day become unwieldy.
The criticism that judges crave for limelight has little credibility. Because as
such judges occupy a revered position in the society. However if ever any judge
wants to be in lime light then there is not major sin because after all he is
also a human being, so, there is no need to get this problem exaggerated.
Regarding the abuse of PILs the apex court in several of its pronouncements has
categorically mentioned about some guidelines regarding the PILs and their
Judges should, however, be careful about one thing. Judicial
activism should not become judicial adventurism. They should not get into areas
in which they do not have any expertise. The court, for instance, can order the
government to prepare a welfare scheme, but not undertake the task of framing it
itself. And in PILs, the Judiciary should refrain from the temptation of getting
media headlines. India cannot afford to let the Judiciary to fail as it is the
only ray of hope and protection to the common man against arbitrary actions of
the Executive. The great contribution of judicial activism in India has been to
provide a safety valve in a democracy and a hope that justice is not beyond
reach. The doctrine of separation of powers is embedded in our constitutional
scheme, and the soul of our constitution should be kept intact.
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