judicial activism in India

Legitimacy

of judicial activism in india

Judicial Activism in India is an important

book by S P Sathe and one that provide great

insight into how the S.C of India has operated

and evolved over the past 50 years.

The journey of judiciary through the trial

and error method to pave justice to all in the

grab of Judicial Activism is considered of a

pilgrim of Judiciary. Judicial Activism is the

concept that originated in U.S it is the process

in which Judiciary uses concept of Judicial

Review to tell unconstitutionality of legislature

and executive orders. Inactiveness of legislature

and the executive makes or compels the Judiciary

to be more active.

There is no precise definition to Judicial

activism accepted be one and all According to

‘Upendra baxi’ Judicial activism is that way of

exercising Judicial power which seeks fundamental

re-codification of power relations among the

dominant institutions of state manned by members

of the ruling closer.

The Indian model of judicial activism is

developed on the basis of public interest

litigation the judicial activism in India is a

movement from personal injury to public concern

by relaxing, expanding and broadening the concept

of local stand.

Supreme court of India become the most

powerful apex court in the world because the S.C

of India can review even a constitutional

amendment and strike it down if it undermines the

basis structure of constitution Keshavananda

Bharathi V State of Kerala AIR 1973 S.C 1460. It can

decide the legality of the action of the

president of India under Article 356 of

constitution where by a state government is

dismissed .

In S.R .Bommai V Union of India (1994) through public

interest litigation, the court has granted access

to persons inspired by public interest to invite

Judicial interevention against abuse of power of

misuse of power or inaction of Govt. the concept

of Local standi liberalized.

The realist school of Jurisprudence

exploded the myth that the Judges Merely declared

the pre-existing law on interpreted it and

asserted that the Judge made the law. It stated

that the law was what the courts said it was this

is known as legal skepticism and way really a

reaction to Austin’s definition of law or a

command of the political sovereign. According

analytical Jurisprudence a court merely found the

law or merely interpreted the law. The American

realist school of Jurisprudence descried that the

Judge made law, though interstitially. Jerome

Frank, Justice Holmes, Cardozo were the chief

exponents of the school.

In the sense of the realist Jurisprudence

the Indian S.C not only make laws, but actually

has started “legislates” exactly in the way in

which a legislature legislate Judicial Law-making

in the realist sense is what the count does when

it expands the meaning of the words ‘personal

liberty’ or “Due process of Law” “Freedom of

speech and expression”. When the court held that

a commercial speech was entitled to the

protection of freedom of speech and expression

(Tata Press Ltd V Mahanagar Telephone nigam (1995)). It

was Judicial Law making in realist sense.

Similarly the basis structure doctrine or the

parameters for reviewing the president’s action

under Article 356 or the wider meaning of the

word ‘life liberty’ and ‘procedure established by

law’ in article 21 of the constitution by the S.C

(Maneka gandhi V UOI AIR 1978) are the instances of

Judicial law-make us in realist sense.

In India we adopted the doctrine of

separation of powers. In realist sense such water

tight separation exists nowhere and is

impracticable. Broadly it means that one organ of

the state should not perform a function that

essentially belongs to another organ. While law

making through interpretation and expansion of

meaning of open textured expressions is a

legitimate Judicial function when, however the

S.C lays down guidelines for inter country

adoption (Laxmikant pandy V Indian AIR 1987), against

Sexual harassment of working women at work place

(Vaisakha V Rajastan 1997) it is not Judicial Law

making in the realist sense but amounts to

legislating like a legislature. In a strict sense

these are the instances of JUDICIAL EXCESIVISM

A survey of the decisional law of Indian

S.C has brought as to the conclusion that the

court has clearly cross the limits of Judicial

function and has undertaken functions that really

belong to other governmental organ. Judicial

activism is welcomed by not only individual and

social activists but also by government,

political parties and constitutional authority.

Moreover, the people in general consider the

government and other authorities bound to abide

by the decisions of the court.

Concept of Legitimacy:-

John Austin defined law as a command of the

sovereign backed by a sanction. According to him

it is the coercive power behind it that

distinguishes law from other species. Austin did

not make any destination between good law and bad

law even a bad law was law if it fulfilled the

three characteristics of law, namely

1) It was a command

2) Issued by the sovereign authority

3) Baked by sanction

H.L.A Hart. Criticized this view by giving the

example of gunman asking a bank teller to hand

over his cash, in law. The order of gunman is

also backed by sanction that is fear of death. In

this case the gunman is not sovereign authority.

According to that, the teller is ‘obliged’

to obey the gunman. He is not under an obligation

to obey.

The main essentials of legitimacy are (1)

legal validity (2) widely accepted among the

people. (3) Actual obedience of the law by a

large no: of people

The Period of Nehruvian Vision

The court in Nehru’s words could point to

us if we go wrong here and there ‘but in matters

of policy the parliament was supreme’

(constituent Assembly Debates). The S.C gave

decisions to frustrate the land reforms envisaged

by the parliament the constitution was amended to

exclude judicial Review from such controversial

areas. If the court had power to interpret the

constitution, the parliament had the power to

change it that was an understanding between the

parliament and the court.

The S.C had adopted a very narrow construction

of the provisions regarding personal liberty

under 21 in A.K Gopalan V madras ((AIR 1950 SC.27) and

had there by delineated itself from political

dissenters.

In that time only in little case judicial

activism appeared and those were appreciated by

political leadership. At the time of P.B

Gajendragadkar there was a great harmony between

the court and the parliament. The only point of

conflict was decision relating right to property

Judicial process was legitimate as a legal

censor of the act of parliament as well as

executive. But the court must act with in the

four limits of constitution. The court itself had

defined its role in A.K.Gopalan V Madras (AIR 1950 SC

27) and there was agreement about the conception

of Judicial ROLE among the legislature, the

executive, the judiciary. Nehru did not

appreciate that the court could have any role as

a lawmaker. He shared the English view of

judicial process which assigned a limited

function of applying the existing law to a given

situation without bothering about the results of

such application. Weather the law was just and

whether a particular view of the law produced

justice was not the concern of the Judiciary.

This is what is called the technocratic model of

judicial process.

In sajjan singh V Rajastan AIR 1965 SC 845 Two Judge

Namely Hidayathullah and Mudhollkar, raised

doubts about the competence of parliament to

amend the constitution so as to take away or

abridge the fundamental rights. The majority led

by chief justice Gajendragadkar, however,

reiterated the earlier position held in shankari

Prasad V India AIR 1951 SC: 458 the parliament’s power

to amend the constitution was unlimited.

In Golaknath V Punjab AIR 1967 SC: 1643 C.J.Subha

Rao Overruled the previous decision of the court

and held that parliament had no power to amend

the constitution which take away or abridge the

Fundamental rights. This decision shocked the

entire community such a decision affects the

stability of our constitution. Eminent legal

scholars including H M Seervai, M P Jain said

that the function of court was to say what the

constitution provides, not to say what it should

provide.

The setting aside by the Allahabad High Court

of the election of Mrs.Indira Gandhi was an event

of great significant. It was also established

that no one was above the law. Mrs.Indira Gandhi

go for an appeal at S.C against the decision of

High Court of Allahabad. However she did not

choose to face the uncertainty of how the S.C

would finally decide her appeal. She had the

constitution amended to make her election valid

despite any judicial decision. The constitution

(39th Amendment) Act, 1976 S.C struck down that

clause as being a violative of basic structure of

constitution. Indira Gandhi V Raj Narain AIR 1975 SC 99.

At that time the Supreme Court struggled a lot to

keep alive and sustain the people faith in Indira

Gandhi V Raj Narain the count strike down the

constitutional amendment and the election of Mrs.

Gandhi. Suppose if court deviate from this

decision for an ordinary person, it would have

appeared that the court had completely

surrendered itself before executive. The time of

this decision was described by H M Seervai as the

finest hour in the life of the S.C. But in

A.D.M.Jabalpur V Shivakant Shukala (AIR 1976 SC 1207) it

lost. While criticizing the S.C for its decision

in A.D.M.Jabalpur case, the anti-emergency discourse

emphasized that the power of declaring

emergencies and the power of suspending judicial

review, must be circumscribed by adequate safe

guards and the independence of the judges must be

established. It was during the emergency that a

consensus in favors of judicial review and the

basic structure limitation upon parliament’s

power of constitutional amendment emerged. The

decision of Jabalpur case make people believe

that judicial review by an independent court was

desirable for democracy. The basic structure

doctrine that did not get public support in 1973

acquired legitimacy because of emergency. After

the S.C asserted the power to review a

constitutional amendment in (Minerva mills V UOI AIR

1980 SC 1789) even the Indira Government did not

make any effort to restore the unlimited

constituent power of parliament.

From 1978 onwards the S.C started its activism

by acquiring the support of people. The court had

started taking cudgels on behalf of the

underprivileged such as pre-trial prisoners (

Hussainara khatoon V Bihar AIR 1979 SC 1360) Free legal

aid to poor and in case of unorganized labor

(P.U.D.R V UOI AIR 1982 SC 1473) and in 1982

challenged the Gandhi Government’s attempt to

transfer judges or appoint judges on ulterior

considerations. The judges case (S.P.Guptha V

President of India AIR 1982 SC 149) was a clear

declaration by the court that it would address

issues of governance, like independence of

judiciary, and reinterpret the existing laws, so

as to impose curbs on the power of the

government, this case is also important in

liberalizing the rule of locus standi and govts

privilege to withhold disclosure of document.

In Bandhua Mukti morcha V Bihar (AIR 1984) the court

claimed the right to oversee the implementation

of beneficial legislation which sought to abolish

bonded labor. Though constitutionally forbidden,

the practice survived because of inaction on the

part of parliament and the Govt (Article : 23).

To overcome the negative attitude of people, the

emergency regime enacted various progressive laws

such as Civil Rights Act 1995, untouchability

offence Act, the Bonded Labor Act 1976.

The court began its activism with issue that

the emergency regime had included on its agenda

and our court started insisting on the actual

implementation of social reforms that the

executive had initiated through the above

legislation. The govt seemed to be on the

defensive, but it could not blame the court

because the court merely asked the Govt to do

what they promised to do through its legislation.

It was after such activism had stabilized that

the court turned its attention to issues of

governance such as the transfer and appointment

of judges.

Judicial appointments subject to Judicial

review on the limited grounds of whether the

government had followed the requirements of

Article 124 or 217. The court could examine

whether the govt had meaningfully consulted the

Chief Justice and other judges, but the final

decision after such consultation belonged to the

govt. Even this little dent that the court made

in the power of judicial appointments must have

been disliked by the political establishment.

Anti-defection legislation 10th schedule

provided under Indian constitution provided that

a person shall be disqualified being a member of

either house of parliament or a member of

legislative assembly of a state. If he is

disqualified under the 10th schedule of

constitution (Article 102 & 194). The schedule

further increased the power of the party high

command over individual members. This legislation

was supported by all parties and even S.C

observed judicial restraint while considering the

challenge to its constitutional validity (kihoto

Hollohan V Zachilhu 1992). The court held that such

restriction on an individual member’s freedom did

not violate the basis structure of constitution.

Thus way obviously a political decision not to

hold the anti-defecation law invalid.

Judges participating in Judicial review of

legislative action should be creative and non-

mechanistic in their interpretation.

After Hindu Marriage Act 1955, the Crpc of

1973 included divorcee within the meaning of word

‘wife’ in section 125. At that time Muslims

practiced giving an amount to wife known as Maher

at the time of marriage. In Bai Tahira case AIR 1979

SC 362 SC held that were Maher was not adequate

sustenance of the divorcee, and then she could

obtain an award of maintenance over and above the

amount of maher. In Shan Bano case, the SC

reiterated that view and confirmed the award of

maintenance made by trial court. By this decision

the Muslim fundamentalist were agitated although

at initial stage Rajiv Gandhi supported this

decision but he changed his mind on political

consideration due to fear of defeat in the

forthcoming election and govt decided to reverse

the decision of SC in Shan Bano case by passing a

law. The Muslim women (Protection of Rights on

Divorce) Act 1986 and Muslim women was taken out

of the purview of section 125 of Crpc by virtue

of this Act she would get maintenance from her

relations other than the husband. The 1986 Act

was challenged in the S.C but the court has not

struck it down. The court interpreted the new

legislation liberally Muslim husband liability

only to give maintenance during the period of

iddat provided that for her future life an amount

to be paid during the period of iddat by her

husband (K.Kunhammed Haji V K.Amina 1995). From this

it is clear that activism through liberal

interpretation of statutes without challenging

the Muslim personal law is more successful than

activism that against Muslim personal law.

In Sarla mudgal V India (1995) in that case justice

kuldip singh made a passionate appeal for a

uniform civil code. In this case, the court

directed central govt to file an affidavit as to

why they had not taken any steps towards a

uniform civil code. The learned judge asked when

the majority community had made a sacrifice for

national integration by giving up its personal

law, why should the other community not do so.

The Muslims felt that uniform civil code was a

threat to their identity. The court clearly

exceeded its limits because the constitution very

clearly says that the directive principles cannot

be enforced by any court (Article 37)

In AWAG V India 1997 provision of Muslim

personal law regarding polygamy and oral divorce

that is talaq were challenged on the ground that

violated the fundamental right to equality . The

court held that the petitioner raised questions

of social policy so it fell outside the scope of

its power. Although the court had held in an

earlier case that personal laws also had to be

consistent with the fundamental rights.

In Mohd.Hanif Quareshi V Bihar AIR 1958 in this case

court take a compromise that we saw in respect of

Muslim women right and the court compromised the

concept of secularism a Judicial decision either

stigmatizes or legitimizes a decision of

legislator or executive.

Indra Sawney V India (1993), the S.C was asked

whether the criteria for classification of

backward classes adopted by Mandal commission

were valid, whether reservation of so many posts

are valid, and several other questions relating

to the subject of reservation the issues of this

case seemed to divide the Indian nation

vertically. There were large no: of people who

thought that reservation on the basis of caste is

against principle of equality before the law.

There were some people who favored this

recommendation. This division was reflected among

the judge of S.C. Two out of nine judges held

that there should not be reservation on the basis

of caste at all. The majority upheld the decision

of the govt to implement the recommendations. The

court held that caste could be one of the

criteria for determination of backwardness and

those reservations up to 50% of the total no: of

jobs was constitutionally valid. The court

approval of the govts decision conferred

legitimacy on that decision. This task was not

easy (opponents of Mandal commission said that

there should be no reservation on the basis of

poverty. The majority justices held this clause

to be unconstitutional. Reservations or

protective discrimination is confined to socially

and educationally backward classes of people. It

is a fact that a large no: of those who are

socially and educationally backward are also

economically backward but the reverse is not

true. All economically backward people are not

necessarily socially and educationally backward).

The majority Judges decisions that was not likely

to be welcomed by the advanced sections of

society. But the judge made provision for (1) not

to give reservation more than 50% (2) there

should be no reservation in promotions (3) creamy

layers among the backward class should be

gradually made ineligible for reservation. The

Scheduled caste organizations have protested

against it. The reservations have unfortunately

been over politicized and have fallen prey to

vote bank politics leaving the social justice

aspect behind. The legitimacy of judicial review

increased when the courts started entertaining

public interest petitioner against government

lawlessness. During the regime of Mr.Rao, the

courts activism flourished against corruption and

abuse of power. This increased the power of the

court as against the other organ of govt. It

demoralized the executive the court’s decision as

to how vigilance commission should be organized

or he should be appointed were undoubtedly beyond

its power likewise when the court asked CBI to

report the progress of investigation in Havala

cases instead of reporting to the minister

concerned it certainly exceed its power. But the

people welcomed this. In Registered society V

India (1996) in this case the court had lambasted

a minister for having illegally distributed

petrol pumps or for having given out of turn

accommodation to near relations of her staff

member, the people had welcomed judicial

intervention because the public have only hope in

judiciary against this corruption. Judicial

activism does not have its legitimacy because the

other organs of govt have filed. That is only one

reason for judicial activism bordering on

excessivism. Even if the other organs of govt

function efficiently there will be need for

judicial activism for recognizing and protecting

the right of powerless minorities.

Counter-majoritarian character of Judicial activism

Judicial activism is bound to be subjective

depending upon the social philosophy and

conception of judicial function held by a person.

When I use the term! Judicial activism I

definitely have a value based conception in mind.

Since I consider judicial activism essentially a

counter-majoritarian check on democracy, judicial

activism in support of a majority is according to

me unnecessary and in terms of social change is

counter-revolutionary. If judicial activism is to

be conceptualized as interpretation of the law or

the constitution from the perspective of not only

law but justice, any interpretation that tends to

perpetuate the existing class domination is

negative Judicial activism and any interpretation

that expands the rights of disadvantaged sections

as against the dominant sections or the

individuals against the state is positive

Judicial activism.

During the time Nehru, the Judges were

considered mere technocrats. At that time

judicial process inspired confidence because of

its manifest objectivity and reasoned nature. The

only barrier between the people and the court was

their inaccessibility. It is reduced by the

growth of P.I.L. The Supreme Court has

contributed to the promotion of constitutional

and legal culture through its discourses on

various aspects of constitutional law.

The court staffed by Judges, who are human

beings so they are bound to errors. In black

letter law tradition, the judge was not

responsible for a decision because he was

supposed to have no discretion. He merely decides

according to pre-determined law. But an activist

judge cannot hide behind such a myth. He has to

accept that he makes law and if he does his law-

making must be evaluated by somebody media also

play a important role in publicizing the decision

and also have the right to criticize from the

standpoint of policy and fundamental

constitutional values such public criticism can

play a very important role in making the judges

accountable. Such criticism is however,

constrained by law of contempt of court.

Legitimacy of Judicial decisions depends on a

shared perception that they are independent and

non-political. It means his decisions should be

independent and fair it should not be influenced

by any political party or ideology. When

Allahabad High Court invalidate Mrs.Gandhi’s

election. It was surely a political decision

because it unseated a sitting P.M such a decision

was political because it had political

consequences. The judges did not make decision

because they wanted to unseat Mrs. Gandhi.

However, what she did amount to corrupt practices

as defined in election law, and there for her

election was set aside.

A judge need not be apolitical, but he must be

independent independence means free from any

external pressure thatis political, social or

economic. By fearless we mean that a judge should

not be afraid of consequence of her decisions. To

an extent a judge has to possess some qualities.

That is why the constitution has provided that a

judge of S.C shall be appointed by the president

after consultation with the Chief Justice and

such other judges as he may fit 124 (2). A H.C

Judge shall appoint by president with

consultation of C.J of India and Governor of

state concern. He can serve up to 62 years. In a

view of judicial activism we felt that

appointments of S.C and H.C judges become more

transparent.

A judge may resign or may be removed by an

order of president passed after an address by

each house of parliament.

Ground: proved misbehavior and incapacity the

legitimacy of a court depends upon the feeling of

obligation to obey that prevails among the

people. Any dis obedience that goes unpunished

can weaken the institution. If a person

successfully defies a court, the court loses its

legitimacy. Such a situation was faced by the S.C

in Manilal Singh V Dr H.Borobabu Singh.

To prevent the danger that would be posed by

the over activism and to protect the efficacy and

efficiency of the judiciary in India led by the

SC, the Judiciary should exercise certain

controls or should limits its power.

Another question that arises here is to whom

the judges accountable. How is such

accountability to be reinforced? If a judge is of

doubtful integrity, should he continue

adjudication given that his continuance would

likely adversely affect the legitimacy of the

court? Although the Indian constitution bar

judges from practicing as lawyers after

retirement we know that they work as arbitrators

further they can appointed to various bodies like

the National Human Rights Commission or the

National Commission under the Consumer Protection

Act 1986. How are such appointments made? If a

judge so appointed compromise his independence

for such posts i.e govt post. So to obtain

legitimacy and fairness an independent body free

from political pressure must be constituted to

appoint retired judges to above said commission

and tribunals.

Judicial activism is not an aberration it is

an essential aspect of the dynamics of a

constitutional court. Judicial activism however

does not mean governance by Judiciary. Judicial

activism must also function within the limits of

constitution. Then only it can acquire the faith

of people. Judiciary is the weakest body of the

state. It becomes strong only when people repose

faith in it. Such faith constitutes the

legitimacy of the court and of judicial activism.

To sustain legitimacy of judicial activism courts

must not only be fair but they must appear to be

fair. The impartiality and integrity of the

judiciary is the source of courts legitimacy.

To conclude it can be stated that the

Judiciary in India. Particularly the S.C has

played the role of catalyst in providing justice

to the people by keeping the other wings of the

govt vigilant and awake to the needs and

challenges of the time.

To enforce the decision of activist judges

they must depend upon the executive otherwise it

will stay as a mere decision. There is no use in

it. For eg: vaishaka guidelines given by the

court to stop sexual harassment against women in

working place. Now also it is not effective to

stop such evil practices.

To maintain the dignity and independence of

Judiciary Parliament enacted certain Acts.i.e,

Judges Inquiry Act 1968 ,Judges Accountability

Act 2010.