CHAPTER-I

INTRODUCTION

1.1. MEANING OF JUDICIAL ACTIVISM.

There is no statutory definition of Judicial Activism but the
functions of judiciary which represents its active role in promoting
justice beyond its powers called The Judicial Activism. In the words
of Hon’ble Justice J.S. Verma1, The Judicial Activism must necessarily
mean “the active process of implementation of the rule of law,
essential for the preservation of a functional democracy”.
The jurists, speaking of judicial activism in the modern
context, explores how justice to the individual or group of individuals
or to the society in general is ensured through the active
participation of the court, particularly as against public agencies.
According to Prof. Upendra Baxi2, Judicial Activism is an
ascriptive term. It means different things to different people. While
some may exalt the term by describing it as judicial creativity,
dynamism of the judges, bringing a revolution in the field of human
rights and social welfare through enforcement of public duties etc.,
others have criticized the term by describing it as judicial extremism,
judicial terrorism, transgression into the domains of the other organs
of the State negating the constitutional spirit etc.
The Powers of the Supreme Court for the protection of the
constitutional rights of citizens are of the widest amplitude and there
is no reason why the court should not adopt activist approach similar
to court in America and other countries and to issue the directions to
the State which may involve taking of positive actions with a view to
securing enforcement of the fundamental rights.
In Hussainara Khatoon Vs. State of Bihar3, the Hon’ble
Supreme Court has held that speedy trial is an essential and integral
part of the fundamental right to life and liberty enshrined in Article
1. The Constitutional Obligation of the Judiciary (R.C. Dhiya Memorial Lecture June 28,
1997
2. Preface in Judicial Activism in India (2002)
3. (1980) 1 SCC 81, 92, 93, 98, 108 & 115
1
21. In Bihar a number of under trial prisoners were kept in various
jails for several years without trial. The court ordered that all such
prisoners whose names were submitted to the court should be
released forthwith. Since speedy trial was held too be a fundamental
right guaranteed by Article 21. The Supreme Court considered its
constitutional duty to enforce the rights of the accused persons.
Judicial activism has to be so understood and with this
meaning of the expression it can hardly be disputed that such action
of the judiciary is within the role assigned to it under the
constitution, and it cannot be termed as a trespass into field
assigned to any other wing/organ of the State. It is true that the
occasion for the judiciary to so act, arises quit often because of the
perception of failure of some other organs to discharge its obligations.
The situation can be avoided only by preventing that situation by
discharge of its functions properly by the other organs and the
absence of the need for anyone to approach the courts for redressal
of their grievances. It is therefore felt that it is the duty of the
judiciary “to keep the charter of the government current with the
times and not allow it to become archaic or out of tune with the
needs of the days.”
The supreme court has now realized its proper role in a welfare
state and it is using this new strategy not only for helping the poors
by enforcing their fundamental rights but for the transformation of
the whole society as the ordered and crimes free society.
The supreme court’s pivotal role in making up for the lethargy
of the legislative and inefficiency of the executive is commendable.
Those who opposed the growing judicial activism by the higher courts
do not realize that it has proved a boon for the common man.
Judicial activism has set rights a number of wrongs committed
by the states.
According to Senior Counsel, Sh. Fali S. Nariman4, of the
Supreme Court of India: It is the misuse that requires correction, not

2
 by abolishing PILs, but by laying down norms and framing strict
guidelines for ensuring that such PILs are not improperly motivated.
Two Judges of the Supreme Court, Mr. Justice A.K. Mathur
and Mr. Justice Markandey Katju5, in a simple service matter
judgment in Aravali Gold Club6 case on December 6, 2007 3 after
deciding a particular case before them, have indulged in some loud
introspection and self-criticism. “Judges must have modesty and
humility and not behave like Emperors”, they said. “Judges must
know their limits and must not try to run the government”, they also
said, and added: “there is a broad separation of powers under the
Constitution and each organ of the State must have respect for the
others and must not encroach into each others’ domains” That
Judges must have modesty and humility, that they must know their
limits, and that they must not behave like emperors is sound advice.
But as to whether they must not try to “run the government” because
of the theory of separation of powers between the legislature, the
executive and the judiciary, is a matter on which there could be a
different opinion. Permit me to express it.
Judicial activism, an increasingly prominent feature of our
administrative horizon, though widely criticized and sometimes
feared, is in fact an essential ingredient of governance particularly in
a democracy. There was indeed a time, particularly in the history of
England, the colonial power from which we acquired the principles, of
‘Common Law’, when judges were looked upon as “lions under the
throne”. But in the emerging world of today, where dictatorships find
only disdain and deprecation, and reigning monarchies have become
obsolete, the judiciary must find its place as the third element of
governance equal in statue to the executive and the legislature. This
is necessary in our country to ensure that the checks and balances

4. Judges V. Judges, The Tribune, New Delhi, 17 December 2007

5. The Tribune, 15 December 2007
6. SC Judgment December 6, 2007 mentioned January 17, 2008 Tribune Debate

3
 so essential to the functioning of a vibrant democracy are sustained
and that democracy stays in good health.
Judicial Activism: Dimensions and Directions” will help
through a single anthology, in an understanding of the phenomenon
of judicial activism in the India of today, the promise it holds and its
perils, and the course that the governance of our country must chart
for itself if that promise is to be fulfilled. It is recommended reading
for all those who wish to strengthen governance in India, with the
overriding objective of improving the quality of life of every citizen.
Judicial Activism is the search for the spirit of the law when
the letter of the law appears to be deficient for Justice in the cause.
Judicial Activism operates, broadly stated, in two ways. Firstly, in the
interpretation of ordinary statutes and secondly in the interpretation
of the Constitution.
In the beginning, the Supreme Court of India was technocratic
in nature, but gradually began to acquire muscle and prestige
through its liberal interpretation of the law. It started with judicial
review in A.K. Gopalan v Madras7, asserting that this power was
inbuilt in the very nature of a written Constitution itself. According to
article 13, the state shall make no law that takes away or abridges
the fundamental rights. Making a reference to this article, the
Supreme Court opined:

“The inclusion of Article 13(1) and 13(2) in the Constitution

appears to be a matter of abundant caution. Even in their
absence, if any of the Fundamental Rights are infringed by any
legislative enactment, the Court has always the power to declare
the enactment to the extent that it transgresses the limits,
invalid.”

In other sense, the court took upon itself the responsibility of

judicial interpretation of the Constitution and judicial review of
legislative enactments. Judicial activism is an inherent feature of
judicial review and arises as a result of several factors. As the polity
7. AIR 1950 SC 27 … 48, 126, 139, 163, 172, 344, 353

4
 becomes more complex and new challenges are thrown up, the
judiciary has to take on a more proactive role to interpret the laws
and in cases where laws do not exist for example in the adoption of
children by foreigners, cyber crimes etc. The court has to broaden the
scope of existing laws to decide on matters which come up before it
for decisions.

According to S.P. Sathe8:

Judicial activism can be positive or negative. It is positive when
it engages itself to make power relations between different sections of
people more equitable. On the other hand, if it is status quoits and
conservative, it is negative Upendra Baxi9 uses the terms ‘reactionary’
and ‘progressive’. According to him, ‘much of Nehruvian era activism
on issues of land reform and right to property, and the pro-
emergency activism typified in S.K. Shukla, manifests reactionary
judicial activism. Progressive judicial activism commences with
Golaknath and Kesavananda and culminates in a wholly different
genre of social action activism.
In the words of Sathe, “judicial activism acts to breach
separation of powers, which in turn upsets transactional efficiency
and raises social costs. If the executive or the legislature has become
dysfunctional, rotten boroughs of obsolete executives and
unrepresentative legislatures, the solution is not in expanding
judicial enterprises but in restructuring the dysfunctional
institutions.”
Indian judiciary, especially the higher judiciary has been
assigned a vital role in various areas like upholding the federal
principle, interpretation of the laws made by respective legislatures,
testing the validity of such laws and more importantly in protecting
the fundamental rights of the citizens. The Supreme Court stands at

8. Sathe, S.P., Judicial Activism in India: Transgressing Borders and Enforcing

Limits, Oxford University Press, 2005 edition
9. Preface in Judicial Activism in India (2002)

5
the top of the hierarchy of the courts constituted under the
constitution. It is the final arbiter as to the upholding of the federal
principle, the validity of law or executive action and as to the
enforcement of fundamental rights of the citizens. The Supreme
Court as the apex court of the nation exercises various kinds of
jurisdiction which include the original, appellate and advisory
jurisdictions. Under the constitutional scheme the decision of the
Supreme Court is binding on all the other courts in India which
include the High Courts as well as the subordinate courts. It has
been noticed that there cannot be any division of governmental
powers viz legislative, executive and judicial powers into three
separate water-tight compartments. Most of the times the American
doctrine of separation of powers cannot be applied to India squarely
as the Indian Constitution itself has not recognized the principle in
toto. It invariably happens that one organ of the Government
interferes with the functioning of the other two organs of the
Government, as the constitution itself has granted partial recognition
and sanction to the same. This interference may be legitimate or
‘illegitimate, Constitutional or unconstitutional, conferred or inferred,
or express or implied. In other words the political organs of the
Government cannot confine themselves to their traditional functions.
They have to encroach upon the domains of the others either
incidentally or by necessity. The Judiciary is not immune from the
said behaviour.
The Judiciary particularly the higher judiciary in India has a
great responsibility of upholding the federal character of the
constitution and of the Indian Republic, of interpreting the
constitution and various types of law and last but not the least of
protecting the sacred, unalienable and fundamental rights of the
Indian citizens. The means by which all these functions are carried
on is the power of judicial review vested in the higher judiciary by the
constitution either specifically or by implication. This power of

6
judicial review is exercised in India by the Supreme Court of India
and the various High Courts in different States. While exercising this
powers, the Supreme Court and the High Courts exercise a vast
reservoir of power which empowers them to decide the validity of any
legislative or executive action of the State. Thus the Higher judiciary
in India can regulate and correct the behaviour of the other two
political organs of our country.
The Supreme Court of India is unique among the world’s
judicial bodies because it is endowed not only with the ordinary legal
authority that resides in other courts, but possesses, in addition, a
vast reservoir of judicial power to enforce the fundamental rights of
the citizens. However the position of the Supreme Court has
remained controversial because its role was not completely defined in
the constitution. This is partly because of the nature of constitution
and partly because of the nature of the judicial function.
Consequently, an understanding of why the court is, what it is and
why it does what it does, is incomplete without a knowledge of its
historical background.
In the absence of a precise definition of ‘judicial activism’ it is
necessary to regulate the functions of the judiciary because of
different meanings which have been given to this concept by different
academicians and jurists. The constitutional mandate to the judiciary
is that while exercising its functions and powers, it should keep in
view the social and economic objectives which the constitution seeks
to protect, promote and provide as embodied in the law. When each
of the three organs of the state respects and appreciates the role of
the other organs and functions within its own sphere and
parameters, the harmony which would be the resultant product
would go a long way in bringing about socio-economic changes in the
country. However, when the political organs of the state fail to
discharge their constitutional duties effectively or if their indifference
to certain constitutional objects especially the object of rendering

7
social, economic and political justice to the people of large, the
judiciary can legitimately assert its judicial power, to meet the
constitutional ends. In the process, the judiciary may assume the
role of a policy maker, legislator and even the role of a monitor to
oversee the implementation of its directions. Then its behaviour or
attitude can be rightly summarized as “judicial activism”. The
meaning of the judicial activism according to various law dictionaries
are as under:-

“Black’s Law Dictionary – defines judicial activism as “a

philosophy of judicial decision – making whereby judges allow
their personal views about public policy, among other factors, to
guide their decisions, with the suggestion that adherents of this
philosophy tend to find constitutional violations and are willing
to ignore precedent.

The Harper Collins Dictionary of American Government

and Politics depicts judicial activism as the “making of new
public policies through the decisions of judges”.

The New Dictionary of Cultural Literacy says it is

synonymous with the term “broad construction” – which,
according to the dictionary, is a “theory of interpretation of the
Constitution that hold that the spirit of the times, the values of
the justices, and the needs of the nation may legitimately
influence the decisions of a court, particularly the Supreme
Court.”

1.2. IMPORTANCY OF THE SUBJECT

Our Supreme Law i.e. the Constitution of India has come into
force on 26th January in 1950. The Hon’ble Supreme Court of India
also was established under this constitution and its existence
coincides with that of the constitution itself. Even since its inception,
the Supreme Court has been playing a vital role in different spheres
in the lives of the citizens as the highest court of the land, as an
umpire in upholding the federal principle implicit in the constitution
and last but not the least in protecting the fundamental rights of the
citizens guaranteed by the Constitution.

8
 Over the period of about last six decades, the apex court has
transformed from the role of ‘interpreter of law’ to the role of ‘maker
of laws’. An analysis of the judicial behaviour of the court shows that,
it has always been controversial. The performance of the Supreme
Court-led higher judiciary in India has been uneven. In the fifties and
sixties, the judiciary was confronted with many issues involving the
validity of agrarian reform introduced by the Parliament and the state
legislatures. In view of the existence of the right to property
guaranteed hitherto under Article 19(1)(f) and 31, the Supreme Court
posed certain difficulties to the state, in realizing the goals enshrined
in Article 38 and 39 of the constitution directing the state to provide
social and economic justice to the people. Many a legislation were
struck down as unconstitutional on the ground of violation of the
fundamental right to property guaranteed in Part III of the
Constitution. This has evoked angry comments from the statesmen
like politicians ruling the country at that time. Pandit Jawahar Lal
Nehru, the first Prime Minister of India, has reportedly accused the
judiciary of being socially irresponsible. Probably the back ground of
the judges sitting in the Supreme Court at that time which showed
that most of them were foreign educated, hailing from the families
holding large tracts of land and that some of them were from the
traditional and conservative families, had influenced the judicial
behaviour in 1950’s and 1960’s.
The Supreme Court has come into its own, as an institution
only in the 1980’s. The court demonstrated that it can be as active as
any other judiciary in the world. The court commenced its dynamic
role in safeguarding and protecting the fundamental rights of the
citizens of India and in putting an effective check on the other two
organs of the state, the Executive and the Legislature only in the
1980’s. It has become possible, solely due to the dynamism and
willingness of a few judges like Justice Krishna Iyer, Justice
Chandrachud, Justice Bhagwati and Justice Chinnappa Reddy. This

9
 list is only illustrative in nature. As a result, the Supreme Court has
become increasingly people-oriented in its post emergency phase. The
most striking feature of the post-emergency Supreme Court is the
degree to which it cut down even the preeminence of legislative – and
constituent power – by a direct attempt to redress people’s miseries.
As eminent jurist Upendra Baxi10 observes, there are traces of the
middle class right wing radicalism in much of the court’s recent
work.
The Supreme Court has achieved an expansive judicial control
in many areas of the constitutional law, by exercise of the power of
judicial review which became a classic case of “brooding Omni
presence”. The judicial attitude and behaviour of the courts after the
1980, gave rise to many concepts like ‘judicial activism’, judicial
supremacy” “Judicial absolutism”, “judicial liberalism’ etc. in contra
distinction with “judicial self-restraint,”, “judicial conservatism”,
“judicial traditionalism” etc.

1.3. IMPORTANCY OF THE SPECIFIC PERIOD

The Supreme Court has attained the zenith of its power in
1973 with its clear to invalidate even an amendment of the
Constitution on substantive grounds. As an eminent lawyer sums up,
from about 1974, the court’s emphasis has shifted to correcting the
executive actions of government for their unreasonableness
particularly in administrative matters. However the imposition of
Emergency in 1975 has had a very demoralizing effect on the
judiciary because of certain decisions taken by the then Central
Government like supercession of senior most judges, in the
appointment of the Chief Justice of India, and using the process of
Constitutional Amendments to restrict the jurisdiction of the courts.
The Supreme Court’s plight at that time i.e. in the mid of
1970’s was described by Upendra Baxi11 in the following, telling
words:-

10. Upender Baxi Indian Supreme Court & Politics 18-19 (1980)
11. Upender Baxi Indian Supreme Court & Politics 18-19 (1980)
10
 “Justices of the Supreme Court, again like many middle-class
Indians, had all along assumed that something like an all-out
authoritarian rule just cannot emerge in Indian polity. Nothing
very drastic had happened in the national emergencies
proclaimed earlier, which were related to more serious situations
of aggressions or hostility by neighboring nations. But as events
unfolded, they watched from their Olympian heights with
increasing anxiety the wide spread arrest, the regime of press
censorship, the strengthening of MISA, the expansion of the
Ninth Schedule retroactive changes in election law, numerous
amendments to the provisions of the Constitution ….”

During the emergency, the High Court Judges transferred on

the large scale and there was a deviation from the well established
convention that only the senior most sitting judge of the Supreme
Court be appointed as the Chief Justice of India i.e. supercession of
senior most judges by junior judges. These were the developments
that affected the judiciary, directly. The rest affected the credibility of
the judiciary indirectly. Thus the major areas of the law and
constitution affected substantially by the emergency amendments
were the very areas in which most people then, and almost all people
now, expected a vigorous assertion of judicial power by the highest
court in the land. Such assertion of judicial power has started in the
late 1970’s and early 1980’s.
The second reason for choosing the specific period is the
composition of the court in the 1980’s. In 1980 the court was
adorned by judges like Krishna Iyer, Chinnappa Reddy, P.N.
Bhagwati and Desai, who differed greatly from those who constituted
majority prior to the 1980’s. Probably the western education and the
family back ground of the majority of judges of the Supreme Court
prior to 1980’s had influenced their decisions and made them act
with a great self-restraint. However, the new batch of judges
representing the second-generation Indians of free India, and
claiming to possess a power to participate in the community welfare
through their own philosophies and ideologies made a vast

11
distinction and prompted the judiciary in India, to acquire a new
shape and face.
In the aforesaid facts and circumstances, it may be made clear
and categorical that an evaluation of an important institution like the
Supreme Court of India with regard to all its powers and functions
that too in relation to all the matters brought before the court, is not
possible and a very difficult situation.
Each generation of scholars seems destined to rekindle and
reconsider the debate over the appropriate scope of the court’s
authority from the vantage point of its own historical position. As the
concept of “judicial activism” could be witnessed only in the past
couples of decades, the main focus of this work has been on the role
of the Supreme Court and judicial activism after 1980’s. Since it
would be very difficult to discuss an abstract and technical concept
like “judicial activism” in an isolated manner, it is proposed to
discuss sufficiently the related areas also, for the purpose of clarity,
continuity and greater understanding of the issue on hand.
The main objectives of judicial activism are:
(i) discussion and analyse the concepts of judicial power, judicial
review and judicial activism;
(ii) the detailed study of evaluation and the role of judiciary in
modern era;
(iii) the evaluation of the constitutional position of our Apex Court
i.e. the Supreme Court of India and its functions and powers;
(iv) the study of independence judiciary and comparison the
judicial behaviour;
(v) the study of judicial activism, its extending limits and impact
on the development of specific areas of constitutional law
concerned with the right of life and personal liberty;
(vi) the study concerned to the Public Interest Litigation and nexus
between Fundamental Rights and Directive Principles of State
Policy;

12
(vii) the study of problems and challenges due to judicial activism;
and
(viii) the study of judicial activism and suggestions to face the
effectiveness due to judicial activism.
The abovesaid objectives are proposed to be secured mainly by
analyzing the judicial behaviour and trends based on the judgments
delivered by the Supreme Court on all the undermentioned areas:
(i) the vital role of judiciary in modern democratic constitution
with specific reference of other countries;
(ii) the concept of judicial power, judicial review and judicial
activism in general, with particular reference to India;
(iii) the Supreme Court of India, its powers and functions, as
contained in the Constitution of India, 1950 and as seen after
the 1980’s due to its active behaviour;
(iv) the judicial approach regarding Article 21 of the Constitution of
India and its expansion to the personal liberty;
(v) the evolution and growth through Public Interest Litigation and
the role of the Supreme Court deciding the PILs after 1980;
(vi) the changing attitudes of the Courts regarding Directive
Principles and fundamental rights after 1980; and
(vii) Judicial Activism by the Supreme Court in India, its evolution,
justification, growth, problems and challenges after 1980 and
till date.
After the deep analysis, it has been confined to a particular
period after 1980, and to a few areas of Constitutional law namely
the expansion of scope of Article 21, the emergence of Public Interest
Litigation and the metamorphosis of the Directive Principles of State
Policy into fundamental rights. As regards the last topic, the
endeavor of this author has been to make an in-depth study of
judicial interpretation by the Supreme Court after 1980, relating to
the changing facet of many of the Directive Principles of State Policy.

13
 Therefore, at the cost of repetition, it may be made abundantly
clear that the scope of this study has been confined to the judicial
activism of the Supreme Court of India, during the post 1980 period
and that too in three specific areas of constitutional law as
mentioned above in detail.

1.4. LITTLE STUDY OF LITERATURE TO ESTABLISH JUDICIAL

ACTIVISM

The study of literature is very necessary to establish the

judicial activism after 1950 such as Articles of the jurists, reports on
seminars and minutes of parliament and assemblies etc. etc.
The sources of the study have been as under:
(a) The expressions and views of the members of the Constituent
Assembly in the form of Constituent Assembly Debates (CAD).
(b) The provisions of the Constitution of India, 1950 and till date
amendments;
(c) The decisions pronounced by the Supreme Court of India and
various High Courts, reported in Journals such like Supreme
Court Cases, AIR, Judgment Today etc. etc.
(d) Annual and Final Reports of Inquiry Commissions, Law
Commission of India and Parliamentary Committees and Sub-
Committees etc. etc.
(e) National and International Treatises;
(f) Works on Judiciary in general and judicial activism in
particular;
(g) Articles written by eminent jurists, judges, lawyers,
administrators, academicians and journalists etc. etc.;
(h) Legal Dictionaries and Encyclopedias on the Constitution; and
(i) Lectures of the different jurists, judges and journalists etc. etc.

1.5. TREND OF THE COURTS TO WORK

The study of the trend of the courts to work is very necessary
regarding the judicial behaviour and judicial activism by the courts in

14
general and after 1980 relating to the development of certain specific
spheres of the Constitutional Law of India.
a) At present time, the judiciary is not only day by day declaring
the laws but also making the same. The role of the judiciary
has changed from merely interpreter of law to maker of law;
b) Judicial Activism by the Supreme Court is nothing but the
consciousness exercise its powers by the judges to judicial
review and to meet the changes of the necessity of time;
c) The Judicial Activism by the Court is a clear cut result of the
failure or indifference on the part of two political organs of the
State namely the Legislature and the Executive to discharge
their duties and responsibilities assigned to them in the
Constitution of India;
d) The Legislature and the Executive, the organ of the State by
itself contribute for the judicial activism in the specific areas of
the constitutional laws after 1980;
e) The judicial activism is a primarily instrumental in the
Supreme Court of India becoming the Supreme Court for
Indians;
f) The Judicial Activism by the Supreme Court is not only
defensible but it may also be indispensable to the Indian
System of Government and Constitutionalism; and
g) The Judicial activism may be particularly beneficial in the
protection and enforcement of civil liberties and liberty of life
etc. etc.
An honest and sincere endeavor has been made through this
study to find the veracity of the above hypothesis.

1.6. ADOPTED VIEWS IN STUDY OF JUDICIAL ACTIVISM

During the study of judicial activism, the traditional doctrinal
approaches and views of the different thinkers have been adopted. As
the topic is from Constitutional law, historical approach to study the
position of judiciary and judicial review was felt necessary. A

15
reference to the Constituent Assembly Debates has been made to find
out the intention of the framers of the Constitution in certain crucial
areas of the study. As regards the evaluation of the position of the
judiciary in the world in general and the Supreme Court of India in
particular, the method adopted has been purely historical. With
regard to the analysis of the judicial behaviour of the Supreme Court
of India in specific Areas of the Constitutional Law of India, the
methodology adopted has been analytical.
The Judicial behaviour has always been regarded as a national
autobiography of the nation’s civilization and culture. Therefore, the
need of a scientific study of the various determinants which go into
the shaping of judicial behaviour cannot be overemphasized.
Unfortunately very little endeavour appears to have been made to
undertake such a study. However, whatever little has been done does
not suggest any empirical research technology without which such a
study has always remained on theoretical plaint only.
The study involves reference to the land marks cases to
ascertain the dicta laid down therein, hence empirical method has
been followed. On the whole, the work has been mainly library and
historical analytical methodology. This method of doing work has
been in form of critical surveys of judicial decisions or of the
constitutional provisions. The surveys or analysis have been
conducted by studying the decisions rendered by the Supreme Court
and considering their brief facts, questions involved, principles laid
down, the relief given to the parties, the short term impact of the
judgment and its long term impact. The main purpose and object of
the study, is to assess the long term impact of the decisions given by
the Supreme Court of India and their contribution in bringing about
a legal and social change within the parameters of the Constitution of
India. The main aim of the work is to find out the judicial trends in
particular areas and to reach as well as gain the certain aspective
conclusions.

16
1.7. COLLECTION OF THE MATERIAL OF THE SUBJECT

The deep study of the subject “The Judicial Activism, Problem

and Challenges in India” has been divided in different contents and
chapters including the introduction and the conclusion as well as
suggestion.
The Chapter I of the subject known as introduction having
detailed explanation, reasons and cause of choosing the topics, the
object of the study the scope of the study, appraisal of existing
literature and the literature relied upon, the hypothesis, the
conceptualization of certain terms and expressions used in the
thesis, methodology followed in writing the present dissertation.
The other chapters have been made to explain the role of
judiciary under the modern democratic constitutions. A specific
mention has been made to compare and contrast the role of the
judiciary under the leading Federal and Unitary constitutions.
The other chapters also have mentioned the “position of the
Supreme Court under the Indian Constitution” and efforts have been
made to trace the real history of the Supreme Court of India. The
contemplation of the framers of the constitution of India and
constitutional schemes relating to the Supreme Court of India and
the deep and detailed discussions have also been made regarding the
powers and functions of the Supreme Court of India with specific
emphasis on its jurisdiction. An attempt also made to establish the
real position of judiciary, legislature and executive.
The chapters of dissertation also clarify the judicial activism,
problems and challenges in India due to the judicial process,
behaviour of judiciary and steps of the judiciary in the reference of
fundamental rights of the citizens. The judges of the supreme court
considered to themselves the protector of the constitution and the
safeguards of the laws.

17
 CHAPTER-II
JUDICIAL ACTIVISM AND LEGISLATURE

The judicial activism is closely connected with the legislature

because the judiciary always review the legislative decisions and
interpret the laws even beyond its power.
The decisions of the Supreme Court of India and various High
Courts in our Country.

2.1. RELATION BETWEEN JUDICIARY AND EXECUTIVE

The relation between judiciary and executive is also very
important.
The judiciary can not exercise its powers without executive
which is very important and one of the important organ of the
country to run the Government.
The bureaucracy assists the democratic institutions to grow at
different levels of society create a role as the administrative arms of
the executive whose policies they implemented irrespective of whether
they personally subscribe to them or not. In this regard, one has to
acknowledge the contribution of the civil services to the political
stability, and democratic viability of the Indian polity. At the same
time, a responsive and responsible administration in the
Constitutional context demands a variety of characteristics many of
which either totally or partially are lacking in the civil services today.
There may be many reasons for it, some justifiable and some not so
justifiable. There are concerns arising out of such a situation. The
President Mr. K.R. Narain, in his address to the joint session of
parliament reflected the concern when he said:

“… All around us today we find increasing cynicism

towards morality in politics and ethics in governance. This has
severely eroded the faith in the State about sixty years after
Independence, the time has come to rejuvenate our institutions
so that they are strong enough to meet the challenges of the
future.”

18
 In beginning, it is necessary to clarify the basic premises for
the debate on “Judiciary-Executive Interface” and the context in
which it has arisen in India in the recent past.
Most people who are knowledgeable on the present state of
government will by and large agree on the following propositions and
guidance:
The Civil Services have grown too big with people who are good,
bad and indifferent; many of whom are neither trained nor motivated,
all of whom are ill-paid and poorly supervised, exercising enormous
public power over an unsuspecting, mostly illiterate, poverty-stricken
people.

2.2. DEV1ELOPMENTS DUE TO JUDICIAL ACTIVISM IN INDIA

About six decades after the constitution came into force, its
most conspicuous feature has been the expansion of the Indian
judiciary and its preeminence over the other two political branches of
government viz, the legislature and the executive. Probably, in no
other country in the world has the judiciary assumed such
ascendancy as in India. While the framers of the Constitution
undoubtedly gave large powers of judicial review to the superior
courts in India, particularly in the matter of safeguarding the
fundamental rights of individuals, they could have never envisaged
the growth of a judiciary with such enormous and ascendant powers.
This view gains acceptance from the opinion of Jawaharlal Nehru. In
a memorable speech in the Constituent Assembly stressing the need
for an independent judiciary to correct government and at the same
time stressing the limits of judicial power and judicial behaviour.

2.3. JUDICIAL ACTIVISM’S EVOLUTION IN OUR COUNTRY

It is very difficult to trace out the origin of judicial activism in

India. Since the judiciary has come to be recognized as an
independent and separate organ of the Government under the

19
Government of India Act, 1935 and subsequently under the
Constitution of India, it would be prudent to scan the period
subsequent to 1935 for tracing the origin. However, there are a few
instances even prior to that period, where certain selected judges of
High Courts established under the Indian High Courts Act, 1861
exhibited certain flashes of judicial activism. Way back in 1893,
Justice Mahmood of the Allahabad High Court delivered a dissenting
judgment which showed the seed for judicial activism in India. In
that case which dealt with an undertrial who could not afford to
engage a lawyer, Justice Mahmood held that the pre-condition of the
case being “heard” would be fulfilled only when somebody speaks
out.
The concept of judicial activism can be seen to be reflecting
from the trends exemplified by some decisions and orders of the
Supreme Court. They are as under:-
(1) The privileges of the Legislature even in respect of their internal
proceedings have been brought under the purview of judicial
review.
(2) The Supreme Court the apex of the country as well as the High
Courts correct the entire gamut of the country’s
administration.
(3) The Indian judiciary on substantive grounds, even an
amendment made to the constitution by the amending body if
it changes “the basic structure or framework of the
Constitution.” This concept of judicial control over the
constitution has been evolved by Indian courts only.
(4) The courts have broadened the scope of “Locus Standi” in the
Public interest litigation matters, in the past period.
(5) The Indian Supreme Court has often resorted to judicial
legislation by virtue of exercise its judicial powers under Article
141 to fill the void created by the so-called legislative vacuum
circumstances.

20
 Therefore, it would be necessary to discuss the activist
tendencies of the Supreme Court before in the past period. But,
before embarking on such a dichotomous discussion, it would be
quite essential to analyze and discuss, the definition of judicial
activism, reasons for judicial activism, the frame work, and different
dimensions of judicial activism and more importantly the Indian
perspectives of judicial activism in the present period.

2.4. CREATION OF JUDICIAL ACTIVISM

Honestly and clearly, it must difficult to state precise reasons

for the emergence of judicial activism under any constitution. Further
there cannot be any universal acceptance of these reasons to be
correct, in view of the conflicting interests and ideologies of various
groups of the society concerned with judicial activism in particular
and judicial power in general. The following are some of the well
accepted reasons which compel a court or a judge to be active while
discharging the judicial functions assigned to them either by a
constitution or by any other organic legal agency and authority.
At present, it has become fully established that the judiciary
cannot remain a silent spectator when the fundamental or other
rights of the Indian citizens are trampled by the government or third
parties. The judges, as responsible members of the society do feel
that they have a role to play in ameliorating the worsening conditions
of the citizens. As Upendra Baxi1 has rightly highlighted, the Indian
nation is obsessed with judicial salvation. It has become natural for
the citizens to look up to the judiciary to step in their aid and to
protect their fundamental rights and freedoms. This unwanted
tremendous pressure and burden on the judiciary on the whole to do
something for the suffering masses. It may lead to an activist role
being taken up by the judiciary.
In Administrative Law, there is a saying that even if the
parliament and all the State Legislatures in India make laws for 24

1. A Pigrim progress, A Basic Structure Revisited Indian Bar Review, Special Issue on
Constitutionism & Constitution of India 21
 hours a day and 365 days in a year, the quantum of law cannot be
sufficient to the changing needs of the modern society. The same
thing holds good in respect of many a legislation passed by the
competent legislatures. Inspite of the existence of a large quantum of
pre and post-constitutional laws, there may still be certain areas,
which have not been legislated upon till date. This may be due to
inadvertence, lack of exposure to the issues, the absence of
legislation or indifference of the legislature etc. etc.
Thus, when a competent legislature fails to act legislatively and
make a necessary law to meet the societal needs, the courts often
indulge in judicial legislation. In this context, judicial legislation has
to be understood as an incident to statutory interpretation. The
courts often have acted to fill the void created by the legislature’s
abdication of legislative responsibility and accountability.
In Indira Swaney vs. Union of India2, a 3 Judges Bench of the
Supreme Court encountered a peculiar and belligerent situation
where one of its directions in the Mandal Commission Judgment to
the States to identify the advanced section among the Backward
Classes of Citizens that is creamy layer for the purpose of excluding
them from availing the benefits of reservation etc. in the instant case
the Kerala State Backward Classes (Reservation of Appointments
/Posts in Services) Act, 1995 gave retrospective effect to the
validating law containing statutory declaration to the effect that “no
creamy layer” exists in State of Kerala was found unconstitutional by
the court which took serious note of the action of Kerala Government
and initiated contempt proceedings against the State.
The final authority of the Supreme Court to decide the validity
of a law, gives the court a great discretionary power without any
accountability whatsoever and a consequent development is the
judicial activism.
2.5 THE ANALYSES OF JUDICIAL ACTIVISM

2. AIR 2000 SC 498

22
 In our country, after the initial hesitation and with some
aberration, the present activist approach of the Highest Bench has
now provided a philosophy that can meet the inadequacies of the
traditional judicial role, its perception and performance. This
behavioral change has attached the attention of the legislature,
executive and the people to many neglected facets of judicial process.
New conceptions are being developed wherein the impact of judicial
decisions well beyond the courtroom is being increasingly realized.
In reference of the society, the judiciary is now readily apparent
and the society has become increasingly interested in the
contributions of the judiciary to the development of a social
philosophy rather than in the decision for its own sake. Any judicial
process is not an end in itself. It is a part of the entire socio-political
system. The days are gone when it was considered that the judiciary
is the weakest organ of the government. Its power of thought and pen
over the life of the community is being increasingly recognized, no
matter the impact is generally not uniform and self-evident. Against
this backdrop it is appropriate to understand that what impact the
court has made on the quality of life which we daily live and to what
extent the judiciary has been able to preserve and establish the
values of the Constitution which we so dearly cherish.
In the reference, the analyses of judicial activism is wider and
difficult because of the unique position given to the judiciary
especially to the Supreme Court, under the Constitutional scheme.
The Supreme Court is at once, the arbiter of federal principle, the
guardian of fundamental rights of the citizens, final interpreter of the
constitutional and other organic laws and last but not the least the
final judge to determine the validity of even a constitutional
amendment. Therefore in India, the judiciary mainly the Supreme
Court and the High Court’s have a greater scope to be active while
discharging various judicial functions.
2.6. LANDMARK EXAMPLES OF JUDICIAL ACTIVISM IN INDIA

23
 The Indian Judicial activism is wider, broader and at present
affected also in comparison with other countries judicial activism.
The probable justification for such a wide scope, is the constitutional
scheme envisaged by the fundamental law of the land. Thus, apart
from exercising the power of judicial review in an expansive manner,
to assert itself more, in the interest of Constitutionalism, the Indian
Supreme Court has exercised even more and wider powers. The court
exercises the power to do anything or to give any direction to render
complete justice. The court has assumed to itself the power to
determine the validity of even a constitutional Amendment effected
under Article 368, in the aftermath of Keshavananda Bharati vs State
of Kerala3. Probably, no court in the world under any form of
constitutional government exercises this power. This itself can be
cited as the best example of judicial activism in India.
Another example of judicial activism is exercise of judicial
powers to give certain directions to certain political leaders who held
high positions and bureaucrats, to compensate the State, for abusing
the discretionary powers vested in them. This kind of directions
asking the political leaders and bureaucrats to pay exemplary
damages to the State, is totally unheard of and unprecedented
anywhere in the world. It may be noticed that this power has been
assumed by the Court itself; and it does not exist either in the
Constitution or in any other statute.
The Supreme Court has refused to exercise its advisory
jurisdiction under Article 143 of the Constitution in the matter of
“Ayodhya” controversy. Such a refusal itself is an example of judicial
activism, exhibited in that area probably for the first time in India.
Similarly, the court has exercised its power and jurisdiction under
Article 129 of the Constitution, to punish for contempt of judiciary.
What is remarkable is the fact that the court has exercised this

3. AIR 1973 SC 1461

24
 extraordinary power, to punish an alleged contemner who allegedly
committed contempt of a High Court and not the Supreme Court
itself. However in Supreme Court Bar Association vs. Union of India,
a Constitution Bench of the Supreme Court; overruled the above
decision, and kept the question open.
The Supreme Court has broadened the scope of ‘Locus standi’
in the matter of enforcement of fundamental rights of the citizens, by
ushering in a new era of “public interest litigation”, starting with past
early period after the independence. The credit for this welcome
development goes to a few individual judges of the Supreme Court
like Justice P.N. Bhagwati, Justice V.R. Krishna Iyer and Justice
Kuldip Singh, in recent times.
The Indian courts adjourned have assumed to themselves the
roles of monitor’s and ‘Supervisors’ in certain investigations involving
the political bigwigs in certain scandals. The best illustration is the
way the Patna High Court has ordered the Central Bureau of
Investigation (C.B.I.), a important crime investigation agency of the
Central Government of India, to report directly to the High Court, in
the Scam which became popular as “fodder scam” allegedly involving
the then Chief Minister of Bihar and presently the Minister of
Railways, Laloo Prasad Yadav.
Further, the Supreme Court has assumed to itself the
supremacy and primacy in the matter of appointment and transfer of
the Supreme Court and the High Court judges. However, in view of
the controversy regarding the recommendations of certain names for
the appointment of judges of High Court and Supreme Court, by
former Chief Justice M.M. Punchhi4, the President has referred the
matter to the Supreme Court under Article 143 of the Constitution
and a 9-judges bench of the Supreme Court has modified its earlier
stand that the Chief Justice of the Supreme Court alone has primacy
in recommending such names. In its advisory opinion given in
October 1998, the Supreme Court has widened the scope of

4. 27 July 1998 Supreme Court Presidential Reference

25
 “consultation” under Article 124 by interpreting that the Chief
Justice should consultant instead of two senior most judges, four
senior judges before making such recommendations. Thus the
Supreme Court retains initiative in the matter appointing High
Courts and Supreme Court judges.
There is also most conspicuous constitutional area where the
Supreme Court has exhibited judicial activism is the way the court
has interpreted the Directive principles of State policy contained in
part IV of the Constitution, which are non-justiciable, as justiciable
in the garb of fundamental rights. The Court has stretched itself too
far when it directed the Union of India to enact a Uniform Civil Code
within a time bound period. It is altogether a different matter that the
Court had withdrawn its direction subsequently by declaring that the
earlier direction was only an “obiter dicta”.
The another example of judicial activism came when the
Supreme Court issued directions to linking the rivers in India within
10 years is not at all a defensible instance of judicial activism.
In Maneka Gandhi vs. Union of India5: A Watershed in Indian
Judicial Activism:- It is one of the important judgment of the
Supreme Court which revolutionized the interpretation of Article 21
which guarantees the right to life and personal liberty. This judgment
has woken the Indian judiciary from the deep slumber, as regards the
life and personal liberty guaranteed under Article 21 of the
Constitution.
In the said case, the petitioner, Mrs. Maneka Gandhi’s passport
was impounded by the Union of India in “Public interest” by an order
dated July 2, 1977. The government of India declined to furnish the
reasons for its decision “in the interest of the general public”.
Thereupon she filed a writ petition under Article 32 of the
Constitution before Supreme Court to challenge the order, on the
following among other grounds.

5. AIR 1978 SC 597

26
 (i) to the extent to which Section 10(3)(c) of the Passports Act,
1967 authorises the passport authority to impound a passport
“in the interests of the general public”, it is violative of Article
14 of the Constitution since it confers vague and underfined
power on the passport authority:
(ii) Section 10(3)(c) of the Act is violative of Article 21 of the
Constitution since it does not prescribe ‘procedure’ within the
meaning of that article and it is held that procedure has been
prescribed, it is arbitrary and unreasonable; and
(iii) Section 10(3)(c) offends against Art. 19(1)(a) and (g) of the
Constitution, since it permits restrictions to be imposed on the
rights guaranteed by those provisions even-though the
restrictions are such as cannot be imposed under Article 19(2)
or (6).

2.7. JUDICIAL ACTIVISM AND JUDICIAL BEHAVIOUR BEFORE

1980

Behaviour of the Supreme Court before the 1980’s. As Senior

Advocate Rajeev Dhawan6 rightly points out, while not totally
neglecting the unformulated indigenous pressures, the court has
been mechanical in its approach to the problem on which it was
called upon to adjudicate. The Supreme Court had rarely exhibited
any activist tendency before the eighties, more precisely before the
emergency of 1975. There has been an overwhelming opinion in India
that, the judiciary during the 1940’s and 1950’s was used by the elite
section of the society to get their vested interest served, of course
within the legal frame work. The laws generally favoured the landed-
class and the talk of agrarian reforms remained a political rhetoric.
The circumstances forced the judges to favour the land-lords, and
that forced the judiciary to take a “not-so-progressive” outlook. The
judicial behaviour before the 1980’s. In State of Bihar vs.
Kameshwar7, the Supreme Court Constitutional Bench was asked to

6. Judge & Indian Democracy in Francine Frankel et. (Ed) Transforming India Social &
Political Dyamic Democracy 326 (2000)
7. AIR 1952 SC 252 27
 determine the validity of the Bihar Land Reforms Act, 1950, The
Madhya Pradesh Abolition of Proprietary Rights (Estates Mahals,
Alienated Lands) Act, 1950 and the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950. These enactments aimed at
abolishing Zamindaries and other proprietary estates and tenures in
the three states, so as to eliminate intermediaries by means of
compulsory acquisition of their rights and interest, and to bring the
‘raiyats’ and other occupants of lands in those areas into direct
relation with the Government.

2.8. JUDICIAL ACTIVISM & PERSONAL LIBERTY

No body should be deprived of his life or personal liberty except

according to procedure established by law”.
The court has been called upon to interpret the meaning of
“life”, “personal liberty”, “procedures established” and “law” as they
appear under Article 21 of the Constitution. It is pertinent to see that
till 1978 i.e. till the landmark decision of Maneka Gandhi vs. Union
of India. The Supreme Court had interpreted the above terms very
narrowly. In order to ascertain the judicial behaviour, it becomes
imperative to analyse the case law at random on Article 21 upto the
year 1978.
In the case of A.K. Gopalan vs. State of Madras8, the first case
decided by the Supreme Court of India involving the interpretation of
right to life and personal liberty guaranteed under Article 21 of the
Constitution, the apex court was called upon to determine the
constitutional validity of the Prevention Detention Act, 1950. A
special bench of the court consisting of 6 judges held by majority that
the Preventive Detention Act, 1950 minus its Section 14 was “intra
vires” the Constitution and valid. The court has dealt with at great
length, the scope of “right to freedom” and “Personal Liberty” as used
in Articles 19 and 21 of the Constitution respectively, among other
important Constitutional issues.

8. AIR 1950 SC 27
28
 In regarding the “personal liberty”, the court opined that the
constitution has in Article 21 used the words ‘personal liberty’ which
have a definite connotation in law and that ‘personal liberty’ does not
mean only liberty of the person but it means liberty or the rights
attached to the person (jus personam). The court further held that
the expressions ‘freedom of life, or ‘personal liberty’ are not to be
found in Article 19 and it would be straining the language of Article
19 to squeeze in personal liberty into the said Article.
In reference of the meaning of ‘personal liberty’ under Article
21, the majority held that it means liberty of the person or body of
the individual and that ‘personal liberty’ in that sense would be
antitheses of ‘physical restraint’ or ‘coercion’. The court gave a very
restrictive interpretation to the expression “personal liberty” stating
that it means a personal right not to be subjected to “imprisonment”,
“arrest” or other “physical coercion” in any manner that does not
admit of legal justification. Patanjali Shastri J.9 held that the
expression ‘personal liberty’ as used in Article 21 excludes the
freedom dealt within Article 19.
It is necessary to mention here that the former Chief Justice
Bhagwati supporting the Aravali Gold Club pronouncement. He is the
father of PILs in India – but one has to look at the type of cases that
he encouraged. The examples are cases of innumerable undertrial
prisoners confined to Bihar jails for decades without anyone knowing
why are they there, cases of bonded labourers, victims of Bhagalpur
police atrocities etc. etc.

9. Observation in V.K. Rao ibid PP 199-200 page 15

29
 CHAPTER-III

CONTRIBUTION OF PUBLIC INTEREST LITIGATION

IN JUDICIAL ACTIVISM

3.1. CONCEPT OF JUSTICES

The origin of the Public Interest Litigation (PIL) is the new

technique and tool formed by the judiciary, lies in the struggle to
solve social and economic problems which is never ending. Before the
discussion the problems and procedures involved in Public Interest
Litigation, it would be absolutely essential to analyse the background
of this new weapon in the hands of the public spirited persons or
bodies and the judiciary consisting mainly of the Supreme Court and
the High Courts in our country.
Beginning from mid-eighties, the behaviour and act of the
judges beyond their powers called “judicial activism” injected to the
judicial stream through necessity, suddenly brought about a
revolutionary change in the out-look of the Indian judiciary. Till then,
a generally conservative, tradition-bound institution became sensitive
to the need of the weaker sections, downtrodden and traditionally
oppressed classes of India. It is the lack of legislative thinking and
executive inaction coupled with exploitation of the masses by the
opportuned few, which made a section of the judiciary come down
and political shall inform all the institutions of the national life”, is a
pious act”.
The present adversarial system of justice, the judiciary is
expected to render justice when the litigating parties come before the
courts seeking a remedy or redressal. Generally the right to approach
a court for redressal of a legal injury is given to an ‘aggrieved party’
alone. This right or standing is known as ‘Locus standi’ in the legal
parlance. Generally, an aggrieved person’ is a person who has
suffered a legal grievance, a man against whom a decision has been
pronounced which has wrongfully deprived him of something or

30
wrongfully refused him something or wrongfully affected his title to
something. Thus, the term “Locus standi” or “standing to sue”
denotes the existence of right of an individual to have a court enter
upon adjudication on an issue brought before that court by
proceedings instituted by the individual. The traditional principle
followed by the Court is that a litigant has standing to challenge the
action sought to be adjudicated in the proceedings.
The customary view has been that a petition could only be
maintained by such a petitioner who has himself suffered infraction
of his rights and is a ‘person aggrieved’. However exception was made
only in case of a petition for ‘habeas corpus’ where a relative or friend
could file a petition on his behalf.
According to one of the famous judges credited with the
emergence and birth of Public Interest Litigation in India, Justice
Krishna Iyer points out” – The people of India are illiterate, around
70% indigent, around 50% being below the poverty line, primitive
more than 20% being depressed classes and tribal miserables”. Thus
the raw realities of Indian society today are colossal illiteracy,
intractable indigency, and countless chronic injustices, blended with
a militancy generated by the perambulate Rhetoria of the
Constitution. Probably the eminent Judge was referring to the goals
set out in the preamble of the Constitution viz. to secure to all the
citizens equality of opportunity and status, justice, social, economic
and political. The aforementioned factors naturally deny a person
whose fundamental and other rights are violated either due to
repression or governmental lawlessness, an easy access to justice.

3.2. CONCEPT OF LOCUS STANDI

The concept of locus standi is closely linked with the relaxation

of Public Interest Litigation and providing easy access to justice. It is
also concerned with the protection of the countless and
unrepresented masses of India, a third world country, who are in no

31
position to protect their rights due to poverty, illiteracy, indigency
and other social, economic and political reasons.
As regards the civil remedies they recognize the ‘locus standi’ of
only the aggrieved persons, to seek a remedy in a Civil Court. A
minor concession is made under the Code of Civil Procedure,
providing for class or representative action. Under the Criminal
procedure, only an affected or aggrieved person is competent to
maintain an accusation or complaint, and generally not a stranger.
As regards the Constitutional remedies provided under Article 32
before the Supreme Court and under Article 226 before the High
Courts, there is nothing contained in these two Articles to suggest
that the ‘locus standi’ of only the aggrieved person is to be
recognized, while issuing appropriate orders, directions or writs.
Inspite of such glaring silence the Constitutional Courts in India have
followed the traditional principle of “locus standi” and permitted only
the aggrieved person to initiate proceedings under Article 32 and 226.
Probably this is due to the influence of the Anglo Saxon
jurisprudence which has had a sway over the Indian judicial system
in almost all the areas of administration of justice. ‘Locus standi’
concept was not an exception to this phenomenon. This rigid
procedural barricade has been broken by the Supreme Court of India
only in the 1980’s through the concept of Public Interest Litigation,
popularized by judges like Justice V.R. Krishna Iyer and Justice P.N.
Bhagwati.

3.3. MEANING OF PUBLIC INTEREST LITIGATION

The real meaning of Public Interest Litigation or ‘Probonon

Publico Litigation’ is a litigation at the instance of a Public spirited
citizen for the cause of others. It is a strategic arm of the legal aid
movement and which is intended to bring justice within the reach of
poor masses who constitute the low visibility area of humanity.
Public Interest Litigation is essentially a co-operative or collaborative

32
 effort on the part of the petitioner, the State or Public authority and
the court to secure observance of the constitutional or legal rights,
benefits or privileges conferred upon the vulnerable sections of the
community and to reach social justice for the above said persons.
The Ld. Justice Krishna Iyer, one of the pioneering judges who
legitimized and popularized the Public Interest Litigation in India
considers Public Interest Litigation as the product of creative judicial
engineering. According to the eminent judge, “the jurisdiction of the
Indian Supreme Court is the widest in the world; the challenges of
India’s social changes are the sharpest; the dynamics of a functional
jurisprudence is the creative expression of judicial response to the
crises of hunger for justice. Public Interest Litigation is the off spring
of these social forces. This burgeoning process, seminal and
innovative, makes the court a catalyst of social justice, a defender of
the constitutional faith and the protagonist in the drama of human
rights for the common man. Justice Iyer views Public Interest
Litigation as a part of the participative justice.
According to Professor Upendra Baxi1, Public Interest Litigation
is the medium through which (a new kind of lawyering and a novel
kind of judging) has happened, and is happening. However Professor
Baxi uses the term Social Action Litigation (SAL) in preference to the
Public Interest Litigation. He considers the SAL as a by-product of
the catharisis of 1975-76 emergency, which is primarily judge-led
and even judge-induced, and as an exercise of judicial populism.
About the postcard petition, there is a grave danger inherent in
a practice where a mere letter is entertained as a petition from a
person whose antecedents and status are unknown or so uncertain
that no sense of responsibility can, without anything more, be
attributed to the communication. There is good reason for the
insistence on a document being set out in a form, or accompanied by
evidence, indicating that the allegations made in it are made with a

33
1. Taking suffering seriously social active litigation in Supreme Court of India Delhi Law
Review (1979) 1980
sense of responsibility by a person who has taken due care and
caution to verify those allegations before making them.
This is the clear cut tendency of the individual judges who
project themselves as saviours of the society: “The conception of the
court as a loose aggregate of individual judges, to one or more of
whom judicial access may be particularly had, undermines its very
existence and endangers its proper and effective functioning.”
About the potential dangers of PIL: “Not infrequently public
interest litigation affects the rights of persons not before the court,
and in shaping the relief the court must invariably take into account
its impact on those interest. Moreover, the nature of the litigation
sometimes involves the continued intervention of the court over a
period of time, judicial statesmanship, a close understanding of
constitutional and legal values in the context of contemporary social
forces, and a judicious mix of restraint and activism determined by
the dictates of existing realities. Importantly, at the same time, the
court must never forget that its jurisdiction extends no farther than
the legitimate limits of its constitutional powers and avoid
trespassing into political territory and jurisdiction which under the
Constitution has been provided to other organs of the State.”

3.4. EVOLUTION OF THE PUBLIC INTEREST LITIGATION IN

INDIA

Public Interest Litigation in India is an aspect of post-

emergency period. The jurists consider the same as a result of the
judicial populism resorted to, by the Supreme Court, in an attempt to
reinstate the image of the Court, tarnished by a few emergency
decisions and also an attempt to seek new, historical basis of
legitimation of judicial power. This view gains support also from
another constitutional writer and jurists.
The Indian media also made an important contribution for the
development of Public Interest Litigation in India, by highlighting the

34
 repression unleashed by the State against the people and by exposing
the Court’s behaviour during the emergency of 1975-76.
The first dramatic opportunity to initiate this new kind of
constitutional litigation in India was probably provided by the
Supreme Court advocate Ms. Kapila Hingorani2, who filed a writ
based on a series of articles in ‘Indian Express’ a national daily,
exposing the plight of Bihar undertrial prisoners, most of whom had
served long-pre trial detentions. This culminated in Supreme Court
accepting the ‘locus standi’ of the advocate and another in a series of
six interim matters viz. Hussainara Khatoon (I) to Hussainala
Khatoon (VI) vs. State of Bihar3.
In the year 1980, two law professors also initiated a writ
petition before the Supreme Court, by sending a letter addressed to
the editor, Indian Express, describing the inhuman conditions of
detention in the Agra protective Home for women, which was
considered as a writ petition on the ground violation of Article 21 of
the Constitution of India.
In the matter of Sunil Batra vs. Delhi Administration4, a 3-
judges Division Bench of the Supreme Court, headed by Justice V.R.
Krishna Iyer, treated a letter written by Sunil Batra, a fellow prisoner,
to a judge of the Supreme Court complaining of a brutal assault by a
head warder on another prisoner, Premchand, as a writ petition,
forsaking the prescribed forms, since the freedom was at stake. The
letter was posted on the Bench to be metamorphasized into a habeas
corupus proceeding. Probably, this particular beginning can be
validly cited as the beginning of exercising the epistolary jurisdiction
by the Supreme Court in India.
In Municipal Council, Ratlam vs. Vardhi Chand5, a Division
bench of the Supreme Court consisting of Justice V.R. Krishna Iyer
and Justice O. Chinnappa Reddy, recognized the standing of the
citizens, to seek directions against the municipality for removal of
stench and stink caused by open drains and public excretion, under

2. (2003) 6 SCC1 35
3. AIR 1979 SC 1639
4. 1978 (4) SCC 494
5. AIR 1980 SC 1622
 Section 133 of the Code of Criminal Procedure. Justice Iyer referred
elaborately to the concept of “access to justice” and observed that a
few profound issues of processual jurisprudence of strategic
significance to our legal system face us up and we must zero in on
them as they involve problems of access to justice for the people
beyond the blinkered rules of ‘standing’ of British Indian advantage.
Judicial Activism, during the last two-three decades, gave a
new hope to justice starved millions. Public Interest Litigation
fostered by Judicial Activism assumed importance setting up
valuable and respectable records especially in the field of
constitutional and legal treatment for the unrepresented and
underrepresented persons.
The Constitution of India also raised the hopes and aspirations
in the mind of Indians that justice would not be denied to them.
Despite such promises the weaker sections of the society, the poor,
the women, the prisoners and other handicapped persons were not in
a position to get justice or even knock at the doors of the justice. As
watchdog of the Constitution, Judiciary had to wake up to its
responsibility. After the Emergency it started taking bold steps to
reach justice where it was needed most according to present
circumstances.

In India, the Constitution is the supreme law of the country.

The Supreme Court and the High Courts have the requisite
jurisdiction to judicially review a legislation as also an executive
action in the light of the constitutional provisions.
The power to review the law and interpret the constitution is
vested in the Supreme Court. The Supreme Court can, by judicial
interpretation, adopt a law to suit the needs of society although the
distinction between Judicial Acts and Legislative Acts cannot be lost
sight of.
In People’s Union for Civil Liberties (PUCL) v. Union of India and
others6, our Apex Court laid down the procedural safeguards in the
matter of telephone tapping in absence of any statute.

6. AIR 1996 (9) Scale = 318 AIR 1997 SC 1203

36
 The Courts have also done a tremendous job in the field of
ecology. The pollution Control Boards are now directly answerable to
courts. By orders of the Courts effective measurers have been taken
to save Taj Mahal and other ancient monuments as well as several
forests and rivers from the vicious clutches of air, water or other
types of pollution. Even the religious institutions have been asked not
to violate noise pollution laws. Chaotic traffic conditions and
vehicular pollution of Delhi is the subject matter of judicial
monitoring in the case of M.C. Mehta v. Union of India7.
The Political parties have also been banned from using loud
speakers while holding meetings so that noise pollution may not be
caused. The Supreme Court also recently formed a monitoring
committee in the demolition matters of Delhi.

3.5. INSTANCES OF ABUSE OF PUBLIC INTEREST LITIGATION

According to some jurists, the hope to become popular is one of

the concept of Public Interest Litigation and its misuse by certain
sections of the society for their selfish ends is a subject of worries.
Whereas the primary objective of the Public Interest Litigation is to
protect the public interest, in a number of cases, the petitioners tried
to abuse the process of the court for their private interest. The court
has acted very diligently in this matter and it never allowed any busy-
body or meddlesome inter loper to misuse the court machinery for
individual purposes. The several decisions in this regard are as
under.
In case of Ramsharan Antyanuprasi vs. Union of India 8, a
Division Bench of the Supreme Court found that, there were serious
disputes in the Jaipur Raja family about the running of a trust,
created by the erstwhile Maharaja of Jaipur State, for the benefit of
public. The court held that it was not a pro-bono-publico litigation
but a litigation for the benefit of a particular section of the people and

7. 1997 SC 734
8. AIR 1989 SC 549

37
 declared that Public Interest Litigation does not mean settling
disputes between the Individual parties.
In matter of Janata Dal vs. H.S. Chowdhury9, the Supreme
Court did not find even a single ray of the characteristic of Public
Interest Litigation in the litigation filed by a practicing advocate Mr.
H.S. Chowdhury.
In an other case Krishnaswamy vs. Union of India10, a
constitution Bench of the court dealing with the ‘locus standi’ of an
advocate and an M.P., rejected the same, to implead in the
impeachment proceeding of Justice V. Rama Swamy, a judge of the
Supreme Court Justice J.S. Verma, who delivered the majority
judgment observed-

“an advocate, who was a busy body and has filed the petition
for no ostensible public purpose cannot be heard”.

In the matter of Simran Jit Singh Mann vs. Union of India 11, the
Supreme Court also rejected the ‘locus standi’ of the petitioner, a
third party, who wanted to challenge the conviction and sentences
awarded to the assassins of General Vaidya, the former Army Chief.
Similar view was taken in Karamjeet Singh vs. Union of India12.
In case of Narmada Bachao Andolan etc., vs. Union of India 13, a
three judges bench of the Supreme Court dealt with a public interest
litigation filed by Narmada Bachao Andolan and others about the
alleged hazards that would be caused consequent upon the
construction Narmada Sagar Dam in the States of Gujarat,
Maharashtra, and Madhya Pradesh. The contention of the petitioners
was that apart from causing serious damage to the environment, the
dam if constructed would oust number of tribals from their
habitations and further that the displaced persons were not sought to
be rehabilitated and no relief measures were offered. The above said
are the land mark judgment in this regard.

9. (1992) 4 SCC 305 = AIR 1993 SC 892

10. (1992) 4 SCC 605 = AIR 1993 SC 1407
11. (1992) 4 SCC 653 = AIR 1993 SC 280
12. (1992) 4 SCC 666 = AIR 1993 SC 284 38
13. 2000 (7) Supreme 264
 CHAPTER-IV

JUDICIAL ACTIVISM AND PUBLIC ADMINISTRATION

The Executive and the Judiciary, both having the democratic

obligations against each others. The government run by the people
and for the people and, therefore, there must be responsive to the
people’s aspirations. The Indian republic, in principle, has the same
trichotomised structure but there is a harmony of purpose among
them as outlined in the Preamble of the Constitution. Comity, not
rivalry, is the modus vivendi; not collusion nor competition but
constructive cooperation functionally operating as checks and
balances, is the Constitutional community of objectives. The rules of
law is basic; the laws are formulated by the Legislature within the
assigned areas, which also controls the Cabinet; the Executive runs
the administration within the limits of the Constitution and the laws;
and the judiciary primarily adjudicates disputes but, equally
importantly, checks excesses committed by the other two branches
and enforces the rights of the people where there is default or
distortion by the Administration in the discharge of duties, using the
power of judicial review. Human rights and fundamental freedoms
are guardians and guaranteed by the Court where the Parliament
violates or the Administration acts malafide “ nobody is above then
the law” – that is the supremacy of the rule of law firmly rooted in the
Constitution which is the paramount source of State power.

4.1. JUDICIAL ACTIVISM &ADMINISTRATIVE ACCOUNTABILITY

The Indian bureaucracy firstly assists the democratic

institutions to grow at different levels of society creating a role for
themselves as the administrative arm of the political executive whose
policies they implemented irrespective of whether they personally
subscribe to them or not. In this regard, one has to acknowledge the
contribution of the civil services to the political stability, and

39
democratic viability of the Indian polity. At the same time, a
responsive and responsible, administration in the Constitutional
context demands a variety of characteristics many of which either
totally or partially are lacking in the civil services today. There may
be many reasons for it, some justifiable and some not so justifiable.
There are concerns arising out of such a present situation.
It is very necessary to clarify the basic premises for the debate
on “judiciary-Executive Interface” and the context in which it has
arisen in India in the recent past period.
The maximum people who are knowledgeable on the present
state of government will by and large agree on the following
propositions for which, of course, there are honourable exceptions as
well:
1. The Civil Services have grown too big with people who are good,
bad and indifferent; many of whom are neither trained nor
motivated, all of whom are ill-paid and poorly supervised,
exercising enormous public power over an unsuspecting,
mostly illiterate, poverty-stricken people.
2. The Indian Constitution clearly reflects the will of “WE THE
PEOPLE OF INDIA” which the Administration is supposed to
implement faithfully according to the laws and policies adopted
therefor. However, only a very small segment of the civil
services have an understanding of the Constitutional Values,
Human Rights and the fundamentals of Rule of Law.
3. There is an increasing insensitivity and disregard of
constitutional proprieties on the part of civil services as
evidenced by the muted responses to public suffering when
reported in the media or discussed in the legislatures time to
time.
4. The Indian Trade Unionosm in civil services, the inability of the
system to extract accountability and political patronage based
on unholy alliances combined with near-total disregard for

40
 merit and efficiency have resulted in a situation where
dishonest officials get protected and efficient persons get
frustrated or shunted out. The public has been at the receiving
end of this vicious monster called bureaucracy-exercising
power without accountability and responsibility.

4.2. JUDICIAL ACTIVISM AND ADMINISTRATIVE AUTONOMY

The Executive and the Judiciary are closely and firmly linked
with each other and without cooperation of each other, the judiciary
or the executive existence’s is nothing.
The Judiciary is not all-powerful without executing. It has its
restraints and accountability. It cannot run amok striking down
everything it fancies is wrong. The compartments are clearly bound
and the court cannot usurp the executive functions and
responsibilities, nor, for that matter, legislature beyond a limit, in the
guise of judicative creativity. However, the position of the Supreme
Court and the High Courts under the Indian Constitution is unique
and incomparably more than that of the other Judicial institutions in
democracies in India.
Briefly, there is a symbolic jurisprudence of the Court and the
Administration operating towards the goal of justice, social, economic
and political for the people of India.
The Supreme Court under Article 142 and even the High Court,
in limited measure, may use the principle of Article 142 with
restraint and responsibility to “make such order as is necessary for
doing complete justice in any cause or matter pending” or brought
before courts.
If there is default defaults executive in doing the justice and
respecting the rights of citizens, the Court will not and cannot fold up
its hands and keep quiet. It will be activated enough to render justice
and right the wrong. If the executive, however high the echelon,
interferes with enquiries and investigations or covertly attempts

41
cover-ups leading to likely miscarriage of justice, the court will not
dysfunctional. On the contrary, Justice shall be done in the
constitutional sense; and no protest, that the Judiciary usurps, by its
power or discretion of the Administration, will hold good. Under the
Constitution, the Court has the ultimate duty for overseeing and
maintenance of the rule of law in its dynamic and social justice-
oriented dimension. To fail here is for the Judges to fail their oath of
office. But the Court cannot convert its discretion into dictatorship.
The court, as Corwin writes, has “made itself morally answerable for
the safety and welfare of the nation to an extent utterly without
precedent in judicial annals”. This may be painful for the Executive
when it is hurt and stands exposed but remember the judiciary
cannot abdicate its duty. Great self-restraint is the hallmark of
judicial discipline. Paramountcy to paramountcy and the Judiciary,
without backtracking to please the politician, shall prevent erosion of
legal rectitude and moral authority under the pretext of executive
discretion and judicial activism.

4.3. JUDICIAL ACTIVISM: A MESSAGE FOR ADMINISTRATORS

The Public Administration is for the welfare of state and it is

expected rather required to reflect the very heartbeat of social
aspiration, more so in a developing country like our country where
the vast majority of the populace have been languishing in extreme
poverty, debasing ignorance, degrading living conditions and glaring
inequalities, yet where the democratic Constitution of the country
which the people have been unto themselves has kindled a great
hope and aspiration for them by the peamubulary promise inter alia
to secure to all its citizens social, economic and political justice,
equality of status and opportunity, liberty of thought and expression
and the dignity of the individual. The nation’s supreme political
document, the Constitution, not only declares a scared ambition in
its peamble aimed at creating an egalitarian and welfare society but

42
 also contains a cluster of provisions in the form of well-defined
charter of fundamental rights which are legally immune from
capricious violation. The unique feature of our constitution is that it
also contains a host of directive principles of state policy formulated
for the purpose of serving as guiding policies for the governance of
the country and these policies are aimed at covering almost every
important aspect of individual and social life where the healing touch
of state action, administrative or legislative, is necessary for making
it a truly welfare state.
The thoughts of major judicial activism in the context of our
country can be traced back to the decision of the Supreme Court in
Golak Nath v. State of Punjab1 where the Supreme Court deviating
from its earlier view in Shankari Prasad v. Union of India2, and Sajjan
Singh v. State of Rajasthan3, held that the Parliament had no power
to amend the fundamental rights conferred in part III of our
Constitution. This decision in Golak Nath was, however, later
reconsidered by the Supreme Court in Kesavananda Bharati v. State
of Kerala4, and Golak Nath was overruled and it was held that
Parliament had the power to amend any part of the Constitution
including the fundamental rights but it had no power to alter the
basis structure or the basic features of our Constitution. Now, ‘Basic
features’ of the Constitution is indeed a term which is susceptible to
a fair degree of elasticity. Certain features of the Constitution have
been enumerated as basic features which may not be exhaustive.
Judicial review was considered a basic feature of the Constitution. As
a result, even a constitutional amendment is now subject to judicial
review for testing whether such amendment destroys and basic
feature of the Constitution in the assessment of the Court and if the
Court thinks that it does, then such amendment is liable to be struck
down as ultra vires. This is a unique instance of innovative judicial
activism that while the power of the Parliament to amend any part of

1. AIR 1967 SC 1643

2. AIR 1951 SC 458
3. AIR 1964 SC 854
4. AIR 1973 SC 1461
43
the Constitution including the fundamental rights has been
acknowledged yet the amending power of the Parliament has not
been allowed to extend to the extent of destroying the Constitution or
altering its basic structure or fundamental features, because the
word ‘amend’ implies that even after amendment the identity of the
original Constitution must remain in its origin position.

4.4. JUDICIAL ACTIVISM AND ADMINISTRATIVE AUTHORITIES:

IN RETROSPECT AND PROSPECT

The Indian Constitution proclaims in Part IV the charter of

Directive Principles of State policy, which are fundamental in the
governance of the union as well as the states and which are intended
to enhance the quality of life of the people in all its facets. In 1996,
the Supreme Court of India has reiterated its consistent philosophy
that while rights conferred under Part III are fundamental, the
directives given under Part IV are also fundamental in the governance
of the country. They are complementary and supplementary to each
other. Though the Fundamental Rights are enforceable and the
Directive Principles are not, it does not mean that the Directive
Principles, along with the Constitutional goals administrated in the
preamble, constitute the ballast to keep the ship steady and navigate
on the chartered course.
There is long-standing debate among jurists regarding the role
judges play or ought to play in the administration of justice. Even
famous judges like Blackstone held the view that judges only
interpret and apply the law enacted by the legislature or created by
custom but do not make the law themselves. All the rules of law are
found in various pigeonholes and the judges only pick up the
appropriate legal principles and apply them in the adjudication of
cases before them. The other view held by equally eminent jurists
John Austin and A.V. Dicey is that judges do make the law in the real
sense of term. Since centuries, judges have created, modified and
abrogated legal principles in the evolution of judicial process. Often

44
the law enacted by the legislation is interpreted by the Judges and
often the law is what the judges say it is. The Courts have, in the
past, and even in the present, created new heads of civil liability and
it is not difficult to find English decisions where it was held that the
Court could crate even new heads of criminal liability. The judge’s
role is not that of a referee in a game where he blows the whistle only
when a foul is committed but otherwise he is a passive spectator.
Even in an adversarial system like that of ours where forensic battles
are fought by two or more parties with conflicting interests, the judge
has an interest that transcends the competing and conflicting
interests of the parties presented by combative advocates. That
transcendental interest of the judges is to uphold the law and to do
justice, which is their primordial function.
The state has embarked upon commercial activity in a big way
and union state government has entered into new areas like road,
rail, sea and air transport production and distribution and so on.
While in some fields the Governments operate through their own
departments, in many areas the Governments created corporations
as its alter egos. The corporations have legal personality of their own,
separate and distinct from the governments which created them.
These corporations were, however, functioning under varying degrees
of control of the respective governments by way of funding, decision-
making, etc. Some of these corporations enjoyed powers of law-
making and considerable executive powers. These corporations by
their acts of commission and omission could violate the fundamental
rights of the people with impugnity. Thus what the state could not do
by itself by way of encroaching upon fundamental rights of citizens, it
could do through the instrumentality of corporations thus for
instance, the employees of these corporators could be treated
arbitrarily in matters of recruitment, termination of services and
other service conditions, and they would not be able to invoke the
writ jurisdiction of the Supreme Court and the High Court as these

45
state instrumentalities would not fall under the definition of ‘State’
under Art. 12 of the Constitution.
The Supreme Court adopted the strategy of playing an activist
role in matters of general or public importance. In the matter of
reservations to Scheduled Castes, Scheduled Tribes and other
socially and educationally backward classes, the Supreme Court
played a determinant role in delivering landmark judgments in a
series of cases from Balaji v. State of Mysore to Indira Sawheney v.
Union of India5 etc. etc.

46
5. AIR 2000 SC 498

47
 CHAPTER-V

JUDICIAL ACTIVISM AND CRIMINAL LAW

Judicial activism has closely effected all the branches of law in

India. While in certain branches the impact has been substantial in
others it has been minimal. It is felt that criminal law falls under the
latter category. It not only insists on resisting changes but also
persists in clinging on to its traditional pattern of growth, which
signifies blending of the old concepts with the new ones whenever
under pressure for change. In registering changes Criminal law tries
to retain the old concepts more that it incorporates new ones. It could
not, however, remain intact and steady at the face of powerful surge
of activism. It has allowed itself to be administered with a dose of
activism bringing vitality in certain areas. New rules have been
engrafted to the existing ones. The courts’ sense of involvement in the
criminal justice process has made them to give new life to certain
institutions. In sentencing also it has been possible to register some
improvement. In the matter of prison justice, the Indian judiciary,
particularly the Supreme Court, has played a very dynamic role.
It is suggested to identify certain vital fields of criminal justice
system which responded positively to judicial activism with a view to
encourage further detailed studies on the implications of these
responses for public administration.
The relationship between police and citizens has always been a
matter governed by constitutional law and criminal law. But still,
there were some aspects, which the Constitution or the statutes did
not envisage to be combined in the provisions. Handcuffing of the
arrested is one such practice, the law ignored for making provisions.
It has become a matter of discussion in the case law of the Supreme
Court. Though the Court categorically disapproved the practice, it is
a matter of regret that it continued to be practiced by the police as

48
noticed by the Supreme Court itself in Citizens for Democracy,
through its President v. State of Assam.

5.1. BENEFIT OF PROBATION AND JUDICIAL ACTIVISM

Probation as a sentencing alternative is a noble evolution of
penological humanitarianism-non-institutional therapy through
probation remains in suspended animation.
To effected efforts have been made and resources are deployed;
and all forms of punishment with their brutality and barbarity tried.
What to talk of total elimination of crime society, even its
minimization remains as illusory motive and purpose.
Other kinds of punishment were considered as barbarous,
unsuitable and medieval. The eighteenth century’s classical theory of
fitting punishment to the crime without taking into account the
criminal, was the chief exponent of imprisonment. In due course, evil
effect of imprisonment became quite apparent. Criminological studies
coupled with experience of different countries, especially of advanced
penal system, proved that imprisonment was no longer penal
panacea for all types of offenders and could not held prisoner in
reintegrating in the society after the release. Different kinds of
criminal require varied treatment. Mechanical imposition of
punishment without looking into personality of the offender and his
antecedents, family bringing up, early associations, his temptations,
rehabilitative potential etc., proved that it created more problems
than it solved. Young and first offenders were exploited by
professionals trained in the art of crime and purged of reformatory
traits. Neither the society was protected nor crime was prevented by
their incarceration. Rather it proved to be counter-productive. The
need for shifting the focus from crime to criminal was, realized. This
gave room to the individualization of punishment–the harbinger of
probation provisions.
The suggested points of probation are that it reduces
overcrowding of prisons; it is far economical that maintenance of

49
prisons; it removes the stigma of crime from the criminal; it allows
the offender to remain with his family and support it or be supported
by it, it protects loss of employment, education etc., and above all
protects society by preventing commission of crime through
reinduction of the offender in the society as its law abiding member.
‘Probation provisions’ in India, presently, works under the
Probation of offenders Act, 1958 and amended upto date. The act was
enacted with a view to introduce a social reform and prevent turning
of corrigible offenders by providing them educative and reformative
treatment in the community. The Act empowers the court to release
the offender on probation of good conduct for any offence except the
one punishable with death or life imprisonment or those offenders
included under Section 18. Release order may be with or without
supervision by the probation officer. Originally, Section 6 of the Act
put restrictions on the imprisonment of offenders below 21 years of
age Subsequently, Section 361 of the Code made it obligatory for the
court to state reasons for not giving the benefit of probation. An
appropriate sentencing decision–whether release on probation of good
conduct or award of imprisonment can achieve the avowed objects of
criminal justice, is based on the scanning of host of factors by the
court. This brings out the primary role of the court which sets in
motion the probationary process provided in the Act in India.

5.2. JUDICIAL ACTIVISM: JAIL AND PRISONERS

Even after the change from punishment to treatment in the

West the Indian criminal justice system still holds prison as an
important means or punishment. It is universally accepted that
unless the treatment in the practical sense takes place within the
prison no convicted and imprisoned offender can successfully be
rehabilitated. This too is well documented that prisoner gets a
treatment quite opposite to what is necessary for his rehabilitation.

50
Prison brutalities, vices, third degree methods, disrespect of human
dignity and dehumanizing methods need no explanation.

Maintaining pace with the changing social conditions the

responsibility is of the legislature. However, in democratic system it is
admitted that due to heavy burden on legislature the executive too
can legislate-delegated legislation. The function of judiciary is only
the interpretation of the laws.

Jai is a place, with high walls and the prisoner is a person

lodged in it either for punitive purposes or for preventive one. Do
these high walls restrain a judicial interference or in other words do
they act as a curtain between a prisoner and his constitutionally
guaranteed rights. Indian prisons, of course, are on the Indian soil,
therefore, Indian Supreme Court should have a jurisdiction to deal
with matters of prisoners who are for all purposes human beings with
enforceable liberties.

At present it is an admitted fact that not only the legislature

but the executive too by virtue of delegation of legislative power is in
a position of policy formulations and promulgation, while third
branch, i.e., (Judiciary) of course, has the importance function in the
administration of justice as the interpreter of statutes. However, the
interpretation does not simply mean giving a meaning to the text of
the statute but involves a choice among several alternative results
that can be reached in reference to the case in hands, not only on the
basis of text but also by filling gaps to effectuate the presumed
intention of the legislature or by correcting and directing the
executive to do what they are required to do under certain statutory
prescriptions. It is now a common place that courts, not only of
common law jurisdictions but also those which have codified
statutory law as their base, participate in the law-making process
and to check the irregularities as well incorrection.

51
 5.3. JUDICIAL ACTIVISM IN THE ADMINISTRATION OF
CRIMINAL JUSTICE SYSTEM

The Ld. Two Judges Bench of Supreme Court in P. Rathinam v.

Union of India1 wherein Section 309 IPC has held to be
unconstitutional as violation of Article 21 of the Constitution. It is
urged that ‘right to die’, being included in Article 21 of the
Constitution as held in P. Rathinam declaring section 309 IPC to be
unconstitutional, any person abetting the commission of suicide by
another is merely assisting in the enforcement of the fundamental
right under Article 21, and therefore, Section 306 IPC penalizing
assisted suicide is equally violative of Article 21, this argument, it is
urged, is alone sufficient to declare that section 306 IPC also is
unconstitutional being violative of Article 21 of the Constitution.
‘Right to die’ is included within the ambit of Article 21 of the
Constitution, to contend that any person assisting the enforcement of
the ‘right to die’ is merely assisting in the enforcement of the
fundamental right under Article 21 which can not be punishment
and Section 306 IPC making that act punishable, therefore, violates
Article 21. If the above said view based on the decision in P.
Rathinam a reconsideration of that decision is imminent.
In significance of this constitution, involving a substantial
question of law as to the interpretation of Art. 21 relating to the
constitutional validity of section 306 IPC, which requires
reconsideration of decision the Division Bench before which these
appeals came up for hearing has referred the matter to a Constitution
Bench for deciding the same. In this way this mater came up for
hearing before the Constitutional Bench.
Section 309 imposes punishment on an attempt to commit
suicide. It may be mentioned that suicide was regarded as
permissible in some circumstances in ancient India. In the chapter
on “The hermit in the forest”, Manu’s code says:

1. AIR 1994 SC 1844

52
 “31. or let him walk, fully determined and going straight on, in a
north-easterly direction, subsisting on water and air, until his
body sinks to rest.

32. A Brahmana having got rid of his body by one of those

modes (i.e. drowning, precipitating burning or starving) practiced
by the great sages, is exalted in the world of Brahmana, free
from sorrow and fear”.

Two commentators of Manu, Govardhana and Kulluka (See

Medhaithi’s Commentary on Manu), say that a man may undertake
the mahaprasthana (great departure) on a Journey which ends in
death, when he has incurable disease or meets with a great
misfortune, and that because it is taught in the sastras, it is not
opposed to the vedic rules which forbid suicide.
‘Right to die’, is it included in Article 21? The first question is
whether the scope of Art. 21 also includes the right to die?

“Article 21: Protection of life and personal liberty–No person shall

be deprived of his life or personal liberty except according to
procedure established by Law.”

According to above said views, it is said the right to live of

which Article 21 speaks of can be said to bring in its trial the right
not to live a forced life.
Ld. Justice J.S. Verma delivered judgment in Gian Kaur v.
State of Punjab2, in this case the appellant Gian Kaur and her
husband Harbans Singh were convicted by the Trial Court under
Section 304 IPC 1860 and each sentenced to six years rigorous
imprisonment and fine of Rs.2000-00 or in default, further R.I. for
nine months for abetting the commission of suicide by Kulwant Kaur,
on appeal to the High Court the conviction of both has been
maintained but the sentenced of Gian Kaur alone has been reduced
to rigorous imprisonment for three years. These appeals by special
leave came before the Supreme Court for hearing.

53
 The first argument advanced to challenge the constitutional

2. AIR 1996 SC 1257

validity of Sec. 306 IPC rests on the decision in P. Rathinam v. Union

of India3 by a Bench of two learned Judges of the Supreme Court
wherein Sec. 309 IPC has been held to be unconstitutional as
violative of Article 21 of the constitution. It is argued that ‘right to die’
being included in Art. 21 of the constitution as held in P. Rathinam
declaring Sec. 309 of IPC to be unconstitutional, any person abetting
the commission of suicide by another is merely assisting in the
enforcement of the fundamental right under Art. 21 and therefore
Sec. 306 IPC penalizing assisted suicide is equally violative of Art. 21
but later on the matter was further considered and the Hon’ble Court
passed another citation against the above said judgment.

5.4. IMPACT OF JUDICIAL ACTIVISM ON SPEEDY DISPOSAL OF

CRIMINAL CASES

According to aspect of administration of criminal justice in

India has been an unduly large number of undertrials prisoners
languishing in jails. The statistics of the last few years show that any
given point of time the percentage of undertrial prisoners has always
exceeded that of convicts.
These undertrials prisoners consisted principally of two
categories: One representing those who were denied bail by the
courts on account of their involvement in serious offences and the
other consisting of those who could not furnish bail for one reason or
the other. These undertrial prisoners were hearded together in jails
where the problem of overcrowding had reached unmanageable
proportions and they were living in shockingly horrible conditions.
The position, indeed, was so deplorable in the States of U.P., Bihar
and Tamil Nadu, that many of these undertrial prisoners were

54
3. AIR 1994 SC 1844
 languishing in jails for years, without even their trial having
commenced. The fact of such undrtrial prisoners in the State of Bihar
was brought to the public notice by K.K. Rustamji, then a member of
the National Police Commission who wrote a number of ‘tour notes’.
Some of these notes described that some people were waiting trial in
prison for as long as ten years, whereas the offences for which they
were held carried half or even briefer terms of sentence. Many others
were in prison without having even been charged with an offence;
investigation against them were pending for well over two years.
Some prisoners had committed no offence at all; they were people
placed in “protective custody” by the police because they were either
victims of crime, or witnesses needing protection. This group also
included destitute women and children. Rustamji identified about 18
concrete cases of such undertrials by name.
The second coincidence was that a National English Daily, ‘The
Indian Express’ published two articles out of these notes. A third
coincidence was that a lawyer, Mrs. Kapila Hingorani4, was so
shocked by the depiction of the horror of the situation as to move the
Supreme Court for Habeas Corpus. And the fourth incidence was
that the first bench which heard the case was led by Justice
Bhagwati of the Supreme Court of India; who fortunately continued
leading the hearing in all subsequent occasions.
These four coincidences have brought promise of new and
basic changes in criminal justice as well as the Constitution.

This problem of delay in the disposal of cases pending in law

courts is not a recent problem. It has been there since a long time. A
number of commissions and committees have dealt with this problem
and given this reports and recommendations. Although the
recommendations have had some effect, the problem still continue for
want of non-implementation of the recommendations of these
reports. Of late, it has assumed gigantic proportions. This has
subjected our judicial system, as it must, to serve strain. It has also
shaken in some measure the confidence of the people in the capacity

55
4. (2003) 6 SCC1
of the courts to redress their grievances and to grant adequate and
timely relief. Some studies pertaining to the problems of undertrials
and delay in the disposal of such cases were so conducted which
throw enough light on the problems of undertrials and the
consequences arisen out due to the said problems.

56
 CHAPTER-VI

JUDICIAL ACTIVISM AND ENVIRONMENTAL LAW

The decisions of the Indian Judiciary regarding environmental

cases are appreciated. The Judiciary has delivered several judgments
for implementation, the laws concerned to environment. Most of the
cases are due to public interest litigations (PILs) instituted by the
public interest groups, public interest lawyers or public spirited
persons on behalf of the diffuse interests in society. Elite groups are
accused to have provoked litigation with a view to bloc king
development. In the Constituent Assembly Jawaharlal Nehru once
said that ‘no court, no system of judiciary can function in the nature
of a third House’. Obviously, judiciary has to function within limits.
Has judicial activism in environmental issues in recent years in India
exceeded its limitations?
In our country, the environmental law is an amalgam of statute
law and judicial decisions. The Forty Second Constitution
Amendment imposed on the state and citizens duties to protect
environment. Laws relating to wildlife (1972), water pollution (1974)
and air pollution (1981) and forest conservation (1980) are examples
of early legislation in India bearing on environment. The climax of
this phenomenon was reached by enactment of Environment
(Protection) Act (1986) which helped the executive to generate a
plethora of rules, regulations and schemes and to delegate powers to
many an existing agency. Establishment of a National Committee on
Environmental Protection and Coordination in 1972, Department of
Environment in 1980 and Ministry of Environment and Forests in
1985 were some of the administrative steps taken by the Centre
Government for the realization of environmental protection. These
developments show that long before courts entered the field and
came to the center stage, there was already legislative and executive
activism for environmental protection.

57
 Bhopal tragedy in 1984 was the worst industrial disaster in
human history and shook the conscience of the people and
institutions in our country. People lost faith in the way industries are
designed, selected, installed or manned. The discretionary model of
environment impact assessment without public participation, in
contra-distinction to open mandatory models available in other
countries, remains a dilemma in our environmental regime.
Enlightened people were disappointed to note the paradox that the
Bhopal Plant had only manually operated safety machanism, while
its counterpart in the United States had a built-in computerized
safety system. This was a specific illustration to prove lack of
objectivity and precaution before giving green signal to hazardous
industry. No wonder that in moments of crisis when a nation in
struggling to cushion the impact of disasters of great magnitude,
justice cannot sit blindly without giving the appropriate and adequate
decisions in favour of the citizen of our country. .

6.1. LAW AGAINST PUBLIC NUISANCE

The clear cut signals of judicial activism towards environment

are seen in decisions interpreting the law of public nuisance
contained in Section 133 of the Criminal Procedure Code. Under this
provision the executive magistrate has power to abate public
nuisance in a locality if it is brought to his notice on complaint or on
police report. The provision was not used for protection of
environment in the past except in a few cases of noise and water
pollution. In 1980 the Supreme Court, in a landmark judgment,
Municipal Council, Ratlam v. Vardhichand1, instilled new
environmental content into the law of public nuisance. The facts of
the case show that residents of Ratlam Municipality were suffering
from fowl odour from open drains and from excreta of slum dwellers.
Disappointed at the inertia of municipal council in solving the
problem, they approached the district magistrate. He directed the

1. AIR 1980 SC 1622

58
 council to adopt a time-bound programme of constructing public
latrines and covering the drains within six months. Instead of abiding
with the direction, the Council went into a series of appeals. Rejecting
the plea of financial inability and endorsing the orders of executive
magistrate, the Supreme Court held that regardless of budgetary
restraints the local bodies are to respect human rights and cannot
evade from their duties to provide basic amenities to the people. The
Ratlam case highlights the law of public nuisance as a potent weapon
to check or control environmental maladies. It infused a new life into
the dormant provision of law and strengthened the hands of the
executive magistrate. This attempt can never be interpreted as an
invasion into the powers of the executive.

6.2. LAW FOR CLEAN AND HEALTHY ENVIRONMENT

The concept of ‘the right to life’, ‘personal liberty’ and

‘procedure established by law’ contained in Article 21 of the
Constitution were in a state of dullness till the end of the ‘infamous’
national emergency in the mid-seventies. Maneka Gandhi v. Union of
India2 sounded a conceptual revolution and held that the rights in
Article 21 can be infringed only by a procedure, ‘just, fair and
reasonable’. The post-Maneka developments were quick. It was held
that the provision not only generates processual justice but also
expands substantive right to life. The right does not mean the mere
right to have animal existence but the right to live with human
dignity and standard of living.

“The right to life inherent in Article 21 of the Constitution

of India does not fall short of requirement of quality of life which
is possible only in an environment of quality. Where, on account
of human agencies, the quality of air and quality of environment
are threatened or affected, the Court would not hesitate to use
its innovative power, the judiciary to enforce and safeguard the
right to life to promote public interest.”

2. AIR 1978 SC 597

59
 The above said concept had an obvious impact on the legal
system. The Supreme Court was slowly getting warmed up at the
turn of the decade. In Cheetriya Pardushan Mukti Sangarsh Samiti v.
State of U.P.3, it said in 1990 that every citizen has fundamental right
under Article 21 to enjoy reasonable quality of life and living. In
Subhashkumar v. State of Bihar4, it held that right to life means right
to full enjoyment of life with pollution free water and air. However, in
both these cases the Supreme Court did not get the opportunity to
apply its pronouncements to the facts since the allegations of
environmental violations were found to be false and tainted with bias.
In Bangalore Medical Trust v. B.S. Mudappa the Court got the
opportunity. The question for consideration of the Court in this case
was whether an open space laid down as such by a development
scheme can be leased out for private nursing home by the very
development authority which had formulated the scheme. According
to the Court the conversion is contrary to the constitutional mandate
for the protection of individual freedom and dignity and attainments
of a quality of life which a healthy and clean environment guarantees.
Significantly, with this pronouncement the Supreme Court widened
the scope of affirmative action by holding that the right to life
generates and demands such action to protect and preserve various
dimensions of a healthy environment. In a notable case, Consumer
Education and Research Centre v. Union of India 5, the Court held that
the fundamental right to health and medical aid shall continue even
after retirement of workers engaged in asbestos industry and that
appropriate directions could be issued to state or private employers
with a view to protecting environment, preventing pollution of
workplace, safeguarding the health of workmen and preserving free
and unpolluted water for the safety and health of the people. Facts of
Indian Council for Enviro-legal Action v. Union of India show that the
sludge remaining as lethal waste years after closure of chemical

3. AIR 1990 SC 2060

4. AIR 1990 SC 420
5. AIR 1995 SC 922
60
 industries destroyed the whole village spreading disease, death and
disaster. Imposing absolute liability on the errant industries and
directing the authorities to carry out their statutory duties, the
Supreme Court observed in categorical terms.

“If this Court finds that the said authorities have not taken
the action required of them by law and that their inaction is
jeopardizing the right to life of the citizens of this country, or of
any section thereof, it is the duty of this Court to intervene…
This is a social action litigation on behalf of the villagers of
Bichhri whose right to life, as elucidated by this Court in several
decisions, is invaded and seriously infringed by the respondents
… of an industry established without obtaining the requisite
permission and clearances and if the industry is continued to be
run in blatant disregard of law to the detriment of life and liberty
of the citizens in the vicinity, can it be suggested with any
modicum of reasonableness that this Court has no power to
intervene and protect the fundamental right to life and liberty of
citizens of this country. The answer, in our opinion, is self-
evident.”

6.3. ACTIVISM RESTRAINTS

There are so many numbers of the instances that came before

the Supreme Court discloses that there was no other way except
going active in these cases by filling the gaps in law and removing
lapses in enforcement. The age-old pollution that people of Delhi had
been suffering from industries and vehicular traffic was proverbial. It
was the greatest irony the holy river Ganga was contaminated by
impurities and effluents discharged from the industries and local
bodies on its banks. M.C. Mehta group of cases tells the story of
judicial examination of these maladies Vellore Citizens Welfare Forum
v. Union of India6 brought to the attention of the Court how in certain
parts of Tamil Nadu the ground water, highly polluted by the tanning
industries, became danger to ecology. Seized of the environmental
problems and having regard to the gravity of questions, the Supreme
Court did not hesitate to step in. Closure of industries was ordered in
certain instances while relocation was found sufficient in some. In
one case the Court ordered to establish sewage treatment in various

6. AIR 1996 SC 2715

61
places in Delhi. Such orders were made only after long and profound
deliberations into the problems. A close reading of the orders of all
cases reveals that the Court did not go reckless but had a slow and
cautious strategy. Possible options were explored. Pollution control
authorities, government agencies and polluting industries themselves
were given opportunities to suggest viable alternatives and remedial
measures. In some, instead of issuing the final order, the Supreme
Court had referred the matter to high courts who are in a better
position to know and appreciate the prevailing local conditions and
the extent of environmental damage. In one case permission was
granted to restart plants once ordered to be closed since a contrary
position, according to the Court, ‘would mean the end of all progress
and development’.

6.4. EXPERT COMMITTEES, COMMISSIONS AND VIEWS

The concept of environmental impact assessment in statutory

form is only of rent origin. Still it is limited to the establishment or
expansion of certain specified industries. Moreover, the decision to go
or not to go for an EIA tainted by discretion given to the powers that
be and this takes the wind out of the said of the Environment
assessment notification of 1994. In the past, the absence of a prior
objective impact study, before a process or project is allowed to start,
had led the judicial machinery to move its wheels. In the Doon Valley
case the Court wanted to know whether indiscriminate mining under
licenses already issued by the State had adverse impact on ecology.
Several committees were appointed by the Court to study the impact
before final decisions were made. On the basis of the reports and
views of the experts certain operations were closed down immediately
and others in a phased manner. Evidently, the care and caution with
which orders were made denotes the nature of judicial process that
struck a balance between environment and development and paved
the way for sustainable development and progress.

62
 In landmark judgment Banwasi Seva Ashram V. State of U.P.
the Supreme Court accorded its approval for transformation of a
tribal habitat into the site for thermal power station. Laying down
guidelines and issuing direction, the Court entrusted the executive
and judicial agencies at the district to oversee rehabilitation of
ousters. In still another, expert committees were entrusted with the
task to oversee anti-pollution measures in an industry and report
corrective actions, if needed. Pollution Control Boards were criticized
in the past as institutions representing governmental interests,
acquiescing in under official bias and lacking in functional freedom.
However, the Environment (Protection) Act, 1986 facilitated to clothe
them with coercive powers. Besides, in a few cases, Boards were
asked to implead themselves and help the courts. Undoubtedly, the
responsibilities imposed by the Court made them stronger and
transformed them into dynamic environmental protection agencies
capable of acting boldly – free from external influences and functional
subjection. This exercise can be compared with the memorable
Ratlam case which added a new dimension to the powers of the
executive magistrate to deal with public nuisance. Judiciary cannot
be blamed of over zealousness or unwarranted interference if its
actions saved to enlarge the powers of the executive.

6.5. JUDICIAL ACTIVISM & CONCLUSION IN ENVIRONMENTAL

FIELD

Progress and development of Indian environmental laws

commences with legislative and administrative activism. The judicial
enthusiasm is subsequent accomplishment. If sustainable
development is the accepted ideal of government in the modern
technological era, necessary safeguards are to be built into every
development project, big or small, which has significant effects on
environment. The legislature and the executive have to take further
initiatives such as formulation of decisions in a transparent fashion,
incorporation of objective impact study and institution of

63
environmental courts at grass roots. No longer do the ideas of
liberalization go without restraints. Liberalization reaches its
boundaries in environmental controls. If law and its enforcement are
not strengthened, the evil of pollution may turn to malignancy in a
fast developing country like India. Judiciary has an inevitable role in
such a context. Referring to Narada Smriti, Justice Rama Jois noted:
“just as a skilful surgeon extracts a dart from a human body using
surgical instruments, a judge should extract the dart of inequity in a
given case by employing the artful expedients of judicial
investigation. This is exactly what judges do in environmental cases.
Wearing a surgeon’s mantle, they endeavour to remove the malaise at
the primary stage. The trend of judicial decisions bears testimony to
this fact and symbolizes judicial activism softened by judicial
restraint. In such a situation there is no reason why public interest
litigation in the domain of environment is rather condemned than
welcomed. When other institutions fail to carry out the mandate, it is
the province of judiciary to remind and make them fulfill their
constitutional commitment and duties.

64
 CHAPTER-VII

JUDICIAL ACTIVISM & FAMILY LAWS

7.1. MUSLIM DIVORCES & MAINTENANCE

The policy of the society did not favour economic independence

of women. The social system operated harshly against them in such
important matters as inheritance, marriage, divorce, adoption and
maintenance. Since the advent of independence and promulgation of
Constitution there has been a shift in the social policy towards
granting of equal rights to women in economic and social fields.
Equality has been codified, some omnibus provisions rather direct
the State to ensure a just, social, political and economic order in all
the institutions of national life. The equality of women has been
promoted and protected by obligating the state to minimize the
inequalities. These constitutional commitments are backed by
various legislations the chief among them are the Hindu Marriage
Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and
Guardianship Act, 1956, The Hindu Adoptions and Maintenance Act,
1956. Thus, a substantial bias against women in the Shastric Hindu
Law was removed in order to bring about a radical change in the
status and role of Hindu women on the basic premise of equality.
However, the developments in post-independent period have not
reached the Muslim women to furnish some instalments of social
justice. Although the movement towards a Uniform Civil Code is still
awaited, the attitude of the governments irrespective of their laudable
pronouncements is not to initiate any reforms in Muslim Law unless
the demand for them emanates from the community itself. Generally,
the courts also acquiesced in the position by an attitude of non-
intervention when dealing with discrimination against women under
Muslim Law. Muslim Law relating to Marriage, Divorce, Maintenance
and Succession has been made “supra fundamental rights.” Reforms
in the Muslim Law are made to depend upon the vociferous,

65
dominant and privileged male members of the community
appreciating a need to caste aside their privileges and advantages to
further a just cause of women.
The non-appreciated exploitative practices have been
undermined and some major adequate steps have been taken
towards the liberation of women. Dowry Prohibition Act, 1961,
prevention of immoral Traffic, 1986, Special Marriage Act, 1954,
Medical Termination of Pregnancy Act, 1969 and some labour welfare
legislations provide for all women, Hindu and non-Hindu, some basic
rights of rational humanism. All the same the volta-face made by the
government during the enactment of the maintenance provisions in
the bill on the Code of Criminal Procedure in 1973 will go down in
the annals of parliamentary history with few comments. With regard
to maintenance of a wife, the Muslims in India were governed by the
provisions of Section 488 of the Criminal Procedure Code of 1898. A
wife without filing any matrimonial suit could live apart from the
husband and seek maintenance provided she had a just ground for
living separate. But maintenance could be claimed during the
subsistence of marriage. In order to redefine the duties in this regard
and to provide more efficacious remedies to the beneficiaries under
the law, the Code was revised in 1973. Section 125 of the New Code
confers a right on a wife, aged parents and minor children to secure
an order of maintenance from the Magistrate. The right in the form of
relief granted to dependent wives by the provisions of the Code, in the
strict sense, does not come within the ambit of Criminal Procedure
Code. However, in the interest of social justice Section 125-127 of the
Criminal Procedure Code provide a summary and inexpensive remedy
to dependant wives, children and parent for obtaining maintenance.
An important explanation was incorporated into Section 125 whereby
“Divorced Woman” was included within the definition of wife. This
was purposely done to prevent unscrupulous husbands from

66
frustrating the legitimate maintenance claims of their wives by just
divorcing them under their personal laws.
The religious rigid and orthodox leaders of Muslim community
mounted an agitation. The result was that the government had to
budge. The decision of House in respect of Section 127 was
rescinded. It was while conceding to the demand of Muslim members
that Section 127(3)(b) was incorporated to exempt Muslims from the
provisions of Section 125 so much so as they applied to divorced
wives, once payment of dower (Mahr) due on termination of marriage
by divorce was proved, the relevant portion of this section, as
amended reads:
(a) Where any order has been made under Section 125, in favour
of a woman, who has been divorced by, or has obtained a
divorce from, her husband, the Magistrate shall, if he is
satisfied that:
(b) “The woman has been divorced by her husband and that she
has received, whether before or after the date of the said order,
the whole of the sum which, under any customary or personal
law applicable to the parties, was payable on such divorce,
cancel such order.
(c) The woman has obtained a divorce from her husband and that
she had voluntarily surrendered her rights to maintenance
after her divorce, cancel the order from the date thereof”.

The meaning of Section 127(3)(b) was far from clear. The

Bombay High Court held that the payment of dower on divorce will
satisfy Section 127(3)(b) and that, therefore, the Magistrate will have
no jurisdiction to make an order under Section 125. In contrast, it
was held by Kerala High Curt that dower payment is outside the
purview of Section 127(3)(b). A controversy also arose since the
enforcement of the new Code on the g round of its inconsistency with
the Muslim Law of maintenance. The position became complex, and
confused by the exception clause in Section 127 Cr.P.C.

67
7.2. POPULATION AND LAW AND FUNDAMENTAL RIGHTS IN
INDIAN PERSPECTIVE

The most complicated problem facing the contemporary world

today is the conflict between the pace of growth of the human race
and the disproportionate increase in the production of resources
necessary to support mankind in peace, prosperity and dignity. This
magnitude of rapid growth of world population has been well
expressed in a declaration issued by thirty Heads of State in 1966, in
which they recognized its adverse effects on living standards and on
efforts to further education, to improve health and sanitation, to
provide better housing and transpiration, to forward cultural and
recreational opportunities, and especially in certain countries to
assume sufficient food cooked and prepared by hygienic process.
The consideration of global problem has special relevance for
India where a rapid population growth constitutes a major obstacle to
every effort at reform and national development aimed at giving every
individual not only the bare necessities of living but a better life.
The law is an important instrument of social change, its
potential as a catalyst has to be utilized for the solution to this
population problem. The study of population problem involves the
establishment of world-wide network. Law and population projects
have been financed by the United Nations Fund for Population
Activities (UNFPA) and the International Planned Parenthood
Federation (PPF). The purpose of these projects is to give a new
dimension to existing programmes stressing the sociological,
economic, political, religious, psychological, ideological, demographic
and cultural aspects to population and family planning. It is
increasingly becoming apparent that laws on marriage, birth, the
family, taxation immigration, social security and penal laws influence
population growth.
Internationally, there are declarations, covenants, resolutions,
and statements expressing an increasing concern over the population

68
problem, as it relates to human rights, while on the national level,
the population problem is viewed in relation to the Constitution, the
policies of the Government, and other rights it guarantees to the
citizens. The right of family planning was not included specifically in
the Universal Declaration of Human Rights, 1948 or the two 1966
International Covenants on Economic, Social and Cultural Rights
and on Civil and Political Rights, but such a right can be inferred
from the rights to equality of the sexes, privacy, conscience, work,
adequate standard of living, health and education and freedom from
hunger. The right to family planning was subsequently incorporated
in the Tehran Proclamation of Human Rights “that the parents have a
basic human right to determine freely and responsibly the number
and the spacing of their children. Although population law has
responded to the immediate challenges presented by the population
problem, its ultimate concern is human rights. The U.N. Declaration
of 1969 on Social Progress and Development has important
significance because it is the first United Nations resolution to
require governments to provide families with not only the “knowledge”
but also the “means necessary to enable them to exercise their right
to determine freely and responsibly the number and spacing of their
children. The Tehran proclamation has specifically provided that not
only the family planning must be made freely but that also the
responsibility involved in a responsible parenthood is the balancing
of the individual with collective right, i.e., the right of children with
that of the society at large. Just as the individual right to freedom of
speech must take into consideration the collective right whether in
time of peace or during war or emergency, similarly, the individual
right of family planning must be harmonized with the collective right,
especially in the circumstances where the actual and potential
resources of a country dictate every one. The question of when
exactly the individual right to give way to the collective right is always
difficult to answer even in the case of freedom of speech,

69
notwithstanding its century old development and refinement.
However, it is equally clear that inability to define with exactitude the
relationship between the two rights does not negative their existence.
The Indian Constitution adopted in 1950 had no specific
provision bearing on the population problem. Population control and
family planning is a subject under the Concurrent List. Although the
family planning programme is financed by the Central Government,
responsibility for its implementation rests with the various State
Governments.
The Government of India in its statement of policy on Family
Welfare Programme attached the highest importance to the dignity of
the citizen and to his right to determine the size of his family.
It is clear cut prohibited any type of compulsion in the area of
family welfare and made the approach educational and voluntary.
The population policy enunciated is neither prenatal nor anti-
natalist. But the responsibility imposed to maintain population levels
most conducive to national welfare is unavoidable, because of the
following principles of State policy declared in the Constitution of
India:
The State shall in particular, direct its policy towards securing-
(a) that the citizens, male and female equally have the right to
means of livelihood,
(b) that the ownership and control of the material resources of the
community are so distributed as best to subverse the common
good,
(c) that the operation of the economic system does not result in
the concentration of wealth and means of production to the
common detriment,
(d) that there shall be the equal wages for equal for both men and
women,
(e) that the health and strength of workers, men and women and
the tender age of children are not abused and that citizens are

70
 not forced by economic necessity to enter avocations unsuited
to their age or strength,
(f) that the childhood and youth are protected against exploitation
and against moral and material abandonment.

7.3. JUDICIAL CONTRIBUTION IN MUSLIM MATRIMONIAL

LAWS IN CHANGING SOCIETY IN INDIA

The Religious freedom remained a way of life with all the rulers
of India. During the Muslim rule Hindus were governed by their own
personal law and even on conversion they were not compelled to opt
for the law of the Shariat in matters of succession, inheritance and
adoption etc. This policy of non-interference with the religious
susceptibilities of their subjects was followed by the British rulers
also during British Reign. They thought that nothing could be wiser
than to assure by legislative Act the Hindu and Muslim subjects of
Great Britain that the private laws, which they severally hold sacred,
and a violation of which they would have thought the most grievous
oppression, should not be superseded by a new system, of which they
could have no knowledge, and which they must have considered as
imposed on them by a spirit of vigour and intolerance. The Section 23
of the famous Regulation II of 1772 provided for the application of the
‘Laws of the Quran’ to all those cases among Muslims which would
be regulated among Hindus by the “Laws of the Shastras”. Another
interesting development at that time was that Pandits and Moulvis
were empowered to instruct the courts as to the nature of the laws of
the Quran and the Shastras, whenever a matter of Hindu or Mulsim
law came to be decided upon. Regulation II of 1772 placed the
Hindus and Muslims on an equal footing. Here, for the first time, was
legislation which required the court to administer two or more
personal laws. Unfortunately, it was not immediately adopted by the
British Parliament also.
The Regulation Act, 1773 and the Charter of 1774 empowered
the newly established Supreme Court at Calcutta to apply English

71
law if suited to Indian conditions. However, they were competent to
hear and determine all suits in Bengal, Bihar and Orissa when the
parties were “British subject”, their servants and servants of the
company. Thus, a sharp line was drawn for legal purposes between
the Presidency Towns and the Moffusil. In 1781, the Act of 1773 was
amended by the Act of Settlement when Supreme Court was granted
jurisdiction over all Indian inhabitants of Calcutta. However, by
Section 17 of the Act of 1781, it was enacted that in disputes between
native inhabitants of Calcutta,” all matters of contract and dealing
between party and party, shall be determined in the case of Muslims,
by the laws and usages of Muslims, and in the case Gentoos, by the
laws and usages of Gentoos; and where only one of the parties shall
be a Muslim or Gentoo by the laws and usages of the defendant. In
1781, the word Succession” was added in Impey’s Revised Code to
the matters of personal law and Hastings rule reserving the “laws of
the Quran” to the Muslims and the “laws of the Shastra” to the
Hindus was rephrased in the Cornwallis Code of 1793. This
legislation was adopted in Bombay Moffusil in 1799, in Madras
Moffusil in 1802 and in Oudh in 1803. A Supreme Court was
established in Madras in 1801 and Bombay in 1823. Then the
Company’s Courts were abolished in 1858 and the Crown assumed
direct responsibility. As a result, there was a fusion between the
Moffusil and the Presidency Jurisdictions. By 1861, the position was
that the jurisdiction of the British Courts extended to Hindus and
Muslims with the important proviso that these people were governed
by their own laws in disputes falling within the domain of
matrimonial law. Later, the Muslim Personal law Application Act,
1937 declared, inter alia, that in all questions regarding marriage
and dissolution of marriage, “the rule of decision in cases where the
parties are Muslims shall be the Muslims Personal Law. After the
enactment of the Act of 1937 the attitude of non-interference with the

72
Muslim personal law was adopted in letter and spirit by the
legislature.
During British Reign, the Indian courts were free and have
contributed to the reform of Muslim personal law. The British
Judges, who were called upon to apply an alien law in an alien
country, like the legislature too adopted a cautious approach while
applying the principles of Muslim law. The scope of and limitations
on judicial interpretation of Muslim law can be scanned from various
decisions of the Privy Council, which expressed its reluctance to
depart from the opinion of the traditional Muslim jurists while
interpreting the religious texts. The Privy Council speaking through
Lord Devy in Aga Mohammad v. Koolsom Bee Bee observed that “it
would be wrong for the court on a point of this kind to attempt to put
their own construction on the Quran in opposition to the express
ruling of commentators of such great antiquity and high authority.
Similarly, In Baker Ali v. Anjuman Ara Begum, Sir Arthur Wilson
declared that “new rules of law were not to be introduced although
they seemed to the lawyers of the day to follow logically from the
ancient texts specially when the ancient doctors of law had not
themselves drawn those conclusions. However, the British Indian
Courts did resort to the principles of justice, equity and good
conscience to make a progressive interpretation of the Muslim law in
order to meet the changing needs of the Indian Muslim community,
but they did so only in the absence of a clear text of commentary. The
courts followed the more progressive disciples of the same school of
Muslim law in preference to its founder on some occasions but they
did not extend their preference to the principles of one school over
the other. However, it was not so much the absence of a clear ruling
that troubled the courts but it was the diversity of opinion among the
Muslim Jurists themselves which created problems. Enormous
diversities are seen both in the traditional Muslim law as well as that
small area which has been codified. The courts in free India have also

73
made valiant attempts to extripate certain unhappy conditions of
polygamy and divorce by liberally interpreting the provisions of
Muslim law.

7.4. BIGAMY-AN IMPEDIMENT TO MATRIMONIAL RELIEF

UNDER HINDU LAW

The unwanted practice of bigamy was considered to be a social

evil and was done away with by the Hindu Marriage Act, 1955 which
came into force on 18.5.1955. The Act amends and codifies law
relating to marriage among Hindus. Section 5 of the Act provides that
a marriage may be solemnized between any two Hindus if conditions
mentioned in that section are fulfilled and one of those conditions
contained in clause (i) is that neither party has a spouse living at the
time of the marriage. To give full effect to this provision section 11 of
the Act, inter alia, provides that any marriage solemnized after
commencement of the Act shall be void if it contravenes the
conditions as to monogamy. Moreover, in order to make bigamous
marriage an offence Section 17 of the Act provides that any marriage
between two Hindus solemnized after the commencement of the Act
is void if at the date of such marriage either party had a husband or
a wife living and the provisions of Section 494 and 495 of the Indian
Penal Code shall apply accordingly, therefore, any person who
solemnizes bigamous marriage renders himself/herself liable to be
punished under the aforesaid sections of the Indian Penal Code.
Regarding the restrictions of monogamy contained in Section
5(i) of the Hindu Marriage Act is mandatory and any marriage
solemnized in contravention thereof is void ab initio. It is no marriage
at all and no consequences of a marriage except the legitimacy of
children follow it. The parties to such a marriage do not acquire the
status of husband and wife and therefore no right and duty is
attached thereto It cannot be doubted that a man would have greater
love and affection for the lady with whom he contracts a second
marriage and therefore rarely an occasion may arise where the

74
second wife may have to seek the assistance of law for restitution of
conjugal rights or maintenance. On the other hand, she rather enjoys
a superior position in the family. The provision as to inheritance of
the assets of such male by the second wife can be evaded since he
has power to bequeath his property by will to any person. He may gift
away his property to her during his life time or may bequeath his
property including his share in the coparcenary property in her name
leaving nothing for his legal wife and even for children if he may
desire so. This aspect needs to be considered and a suitable
legislation imposing restrictions on the power of such man to make a
gift or will is desirable.
Thus, the right to get such bigamous marriage declared null
and void is available to the spouses of the subsequent marriage and
none else. The first wife not being a party to the subsequent marriage
has no right to get the decree of nullity under the Hindu Marriage
Act. The Allahabad High Court in Jokhan Prasad Misra v. Lakshmi
Devi has held that either party thereto clearly means either party to
the marriage sought to be declared null and void. A petition by a
person who is not a party to the marriage sought to be declared null
and void will not be under Section 11 of the Hindu Marriage Act.
However, the first wife can file a suit under the ordinary law for a
declaration that the marriage of her husband with the second wife is
illegal and void. A suit by the first wife for such a declaration is,
therefore, to be filed according to the provisions of Section 9 of the
Code of Civil Procedure read with Section 34 of the Specific Relief Act.
The right of the first wife to seek a declaration of nullity in
respect of a subsequent marriage of her husband with another lady
under the ordinary law has been recognized yet the Hindu Marriage
Act being a special legislation does not provide for any such relief. It
is desirable that such a right may be granted under this Act. The
locus standi in respect of seeking such declaration may also be
extended to any recognized welfare institution or organization.

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 The main purpose of Section 5 of the Hindu Marriage Act was
to introduce monogamy and if Section 11 of that Act authorized the
presentation of a petition for a declaration that a bigamous marriage
was void by the spouse complaining against it and if Section 17 of
that Act makes an act of bigamy an offence punishable under Section
494 of the Penal Code cognizance of which could be taken as
provided by Section 198 of the Code of Criminal Procedure only upon
a complaint made by a person aggrieved by such an offence who
could only be one of the two spouses affected by the act of bigamy.
The obligations created by Section 5(i) is in favour of that living
spouse and that obligation is that so long as that spouse is living
neither the wife or the husband as the case may be shall take
another.
The High Court read the obligation in Section 5(i) and provided
her the relief under Section 54 of the Specific Relief Act read with
Section 9 of the Civil Procedure Code under which provision every
Civil Court can exercise jurisdiction in all suits of a civil nature
except in suits whose cognizance is expressly or impliedly barred.
Since Section 11 of the Hindu Marriage Act operates only after the
solemnization of that marriage and so also section 17 which makes
the provisions of Section 494 and 495 of the Penal Code applicable to
it, the Hindu Marriage Act provides no remedy to a person who seeks
the prevention of the commission of what is not only prohibited by
Section 5(i) but also made an offence by Section 17 of that Act. The
court, therefore, held that the jurisdiction of the Civil Court was not
to be barred expressly or impliedly to issue perpetual injunctions in
such cases. Permanent injunction may also be issued under Section
39 Rule 2 of Code of Civil Procedure restraining the husband to
contract and go through bigamy for life partner.

76
 CHAPTER-VIII

PROBLEMS AND CHALLENGES DUE TO JUDICIAL ACTIVISM

The Apex Court of our country as well as the Higher Courts

passing the orders and directions beyond its power which comes in
the definition of judicial activism and due to the judicial activism
acted by the Judges beyond the prescribed powers day by day
creating the problems and challenges in India.
There are so many problems due to judicial activism which
may be mentioned here:
The assessments requireness of the importance of the judiciary
and its activeness is a difficult task. For the welfare of state there
must be a harmonious relationship among all the three wings of the
government. If the said organs of the state are in balance, it will
become easy to fulfill the dream of our fore-fathers even after passing
about sixty years of independence.
The interpretation by Indian Judiciary has sudden increased
actions in various fields and have become a point of controversy. But
there must be certain constrains on judicial activism and judicial
discretions cannot be absolute and despotic.
When we watch the various dimensions of compensation
jurisprudence v. judicial activism this does not break the rule of law
and does not create any hurdle to the framework of our constitution.
But it is necessary to appreciate in conclusion that the
activism of Supreme Court to enhance compensation jurisprudence
by passing various new legislations, viz. Environment Law, Consumer
Protection Act, Family Laws, etc.
The doctrine of ‘Stair decises’ are precedent under Article 141
of the Indian Constitution says that the law declared by the Supreme
Court in the law of the land. This accounts that constitution
acknowledges the judicial activism. But here biology of justice must

77
not be disturbed. In this connection some suggestions will be very
useful which are as under:
(1) All the three organs require a regular and greater coordination
based on mutual respect and better understanding.
(2) Court must be more active in enforcing its orders and so
judicial activism is the phenomenon of the Courts dealing with
issues which they have to additionally not lounched.
(3) This would not lead to the adjudication deposition.
(4) It is the first and foremost instrument of the judiciary to life up
the veil from his misdeeds of the ruling elite, their agents and
power brokers.
(5) Judicial activism is the safety valve of the polity without which
the frantic fury and indignation of the common man would
have thrown open the floodgates culminating the violent
upheaval in the society.
(6) In case of awarding compensation court must be choose and
provide it adequately whenever needed.
(7) If expansion is activates more in form of PIL if proper case it is
acceptable.
(8) It must try to stop increasing corruption among the judges
because bureaucratic corruption fixes a question mark on its
sanctity.
(9) Judiciary must be pious and clean and there must be not lack
of ethics.
(10) It may be proved beneficial in protection of Human Rights.
(11) It can be proved as catalyst in rooting out corruption from both
the organs viz. legislative and executive.
(12) Criminalization of politics, if unchecked will make the judicial
activism an exercise in futility.
(13) Those who refuse to place trust in the judiciary are bound to
doubt the relevance of judicial activism itself. To them neither
the politicians nor the judiciary are trust-worthy.

78
(14) Judges are considered as the Protector of society and they
always will be in future vigilant in safeguard our freedom and
preservation of mass interests.
(15) To safeguard the rule of law, foundation on which the
superstructure of democracy rests judicial intervention
becomes the need of the hour.
(16) Consumer protection forum, PIL suits, class suits, etc. are good
initiative and try to establish in each village, town and district.
And also provide to those indigent persons who are not aware
of their rights property.
(17) Judiciary try to fix compensation in each and every case with
speedy and fair justice.
(18) In criminal law and specially in offences relating to female in
these cases. Money is not the sole concern and hence court
provide punishment too, to make the people adhered with law
strictly.
In the last, it may be said that judicial activism is not a
negative manifestation of courts and Apex Court provided it guards
and guides public interests. Judiciary is characterized by its
independence, honesty and preservation of fundamental rights. And
by keeping these significant values fresh and alive, if it gets activated
whenever necessary, it would not harm any national interest nor
transgress the rights of other organs.

8.1. CORRUPTION IN PUBLIC LIFE AND PIL

In India, the PILs have proved to be a strong and patent

weapon in the hand of the court enabling it to unearth many scans
and corruption cases in public life and to punish the guilty involved
in those scams. Hawala scam, uria scam, fodder scan in Bihar, St.
Kit’s scam, Ayurvedic Medicines scam and illegal Allotment of
government Houses and petrol pumps have come to light through the
public interest litigation, certain social organization and public

79
 spirited individuals filed a writ petitions in the Supreme Court and
High Courts by way of public interest litigation requesting court to
inquire and punish those who are found guilty of by passing laws of
the country and misusing their official positions and powers during
service period against the public norms.

8.2. PARTIALITY IN JUDICIAL ACTIVISM

There are so many examples in which the judiciary has

partiality in deciding the matters.
Giving the clean chit to Jagannath Misra, declaring Bhajan Lal
innocent, in corruption case and pronouncement of court in favour of
Antuley1 are nothing but questionable decisions effecting the image of
judiciary. Receiving monetary benefits for judicial pronouncements,
rendering blatantly dishonest judgment, hobnobbing with political
personalities and obviously favouring the governments and thereby
losing all sense of propriety and judicial discretion to grant bail are
some of the features pointing towards judicial indiscipline,
unbecoming conduct, corruption in the judicial system. Judiciary the
only hope for our sustenance shall have to come out of such
allegations to avoid chaos in the society. Mr. Palkiwala2 expressed his
opinion that these guilty of wrong doing on the bench, are seldom
held accountable. Apart form such events, the justice imparting
institutions are moving towards its downfall–yes every system
crumbles through a process of deterioration and so it may happen
with judiciary. Certainly executive is partly to it along with legislature
in our democratic and developing country.
According to some views, the judges, accepting gratification to
deliver judgment of one’s favour cause undue delay, keep decisions
pending till they are obliged directly or indirectly. Resignation of
justice S.K. Desai of Bombay High Court in 1990 on allegations of
judicial corruption and transfer of some of judges (JJ. V.S. Katwal,
M.P. Kema, Sharad Manohar and Guttal) on the same pretext on a

1. 1992 AIR SCW 1872

2. Role of Judiciary: Government by the Judiciary CMLJ, Vol. 31, Oct-Dec 1995, p. 193 80
move by Advocates of Mumbai back in 1990 are the cases of
corruption and misdemeanor in judiciary.
Justice V. Bahuguna also had to offer his resignation when he
was threatened to be prosecuted on the allegation of possession of
large sums offered as bribes. He, as an advocate in Jain Sudha
Vanaspati case, obtained questionable order from the court of Justice
K. N. Singh, before his appointment. He came to be appointed as a
judge with full knowledge of his questionable activities.
Case of Justice A.M. Bhattacharjee, C.J. of Bombay, High
Court is of recent years when Bombay lawyers effectively force him to
resign following an admission of accepting 80,000 dollars as royalty
for overseas publication of his book, “Muslim Law in India.
Reduction of sentence by Supreme Court, on a man convicted
of rape, on the ground that women was of easy virtue/a fallen women
is nothing but lowering the moral stature of judiciary in Indian
circumstances.

8.3. POLITICS ON IMPEACHMENT

Politics also have shown its colours on happening, mis-

happening and event connected with judiciary. Efforts to impeach
justice Rama Swami. Former judge of Supreme Court, following
allegations of corruption were not successful. Is protection of J. Rama
Swami not something discourageous to those (judges) who proved
him guilty. Despite proved charges of misconduct against him, he has
been appointed Chairman of Law Commission by Jai Lalita
Government, in Tamil Nadu, after his premature retirement only due
to political background.

8.4. UNJUSTIFIED JUDICIAL DISCRETION IN JUDICIAL

ACTIVISM

Passing the order of bail to Animal Skin smuggler – Veerappan,

despite his involvement in about series of serious cases, on 17.7.95
involving 30,000 skins over a variety of wild animal, to Sudhakaram,

81
then Congress MLA from Kerala involved in murderuous attack on
CPI legislature from Delhi court on July, 6 and to Sushil Sharma
main accused in Tandoor Kand by Madras court and at the same
time refusal of Medical care to late Rajan Pillai in Tihar Jail all are of
utter dismay and disgust the non-else but judiciary will have to own
responsibility for its costly mistake and misunderstanding.
To be liberal in granting bail in non-bailable offence be
exercised in the interest of justice and in accordance with the
established principles of law. But the system of bails operates very
harsh against the poor and it is only non-poor who are able to take
advantage of it on the ground of social background.

8.5. JUDICIAL INTERFERENCE IN EXECUTIVE/LEGISLATIVE

FUNCTIONING
Certainly instances are there when bureaucracy many time
ignored the problems when judiciary in such cases come to rescue
through PIL. However several times, judicial interference in executive
functioning create problems of its own kind. For example, once Mr.
Ved Marvah, Delhi Police Chief (the then) ordered the closing of
cabaret dance for breaching the obscenity rules and also becoming
meeting place for criminals, the High Court vetoed the order saying
that cabaret dancing was an artistic expression and police were not
the people to judge such form.
Necessary directions to the Union Government and Parliament,
to enact Uniform Civil Code, by the Supreme court is direct entry into
the domain of legislature. As judicial activism is one thing but such
decision making is quite another.
The Indian judiciary in Babri Masjid mater and Kaveri water
dispute etc. should not have agreed to handle its all these effects
image of judiciary.
The judgment delivered by the Supreme Court on increasing
retirement age of judges in the subordinate court and also laying
down the terms and conditions of their service is the domain of

82
legislators and the state government. There is nothing wrong if
judiciary is active, but it should be extremely guarded about its own
jurisdiction.
The unwanted and unprecedented, rather sudden and
coordinated decision/move of 21 judges of Punjab and Haryana High
Court going on leave enmasse which were the appearance of flash
strike, has focused public attention that brought judicial work to a
near halt is lowering prestige of judiciary.
The immediate cause for the synchronized move to paralyze the
High Court was apparently a notice served by the chief justice, B.K.
Roy on two fellow judges seeking an explanation for their acceptance
of honorary membership in a controversial golf club over which a
case is pending in the High Court. The issue raised serious questions
of judicial accountability against the protest absent and choosing
wrong issue to register it. The higher judiciary has ruled on more
than one occasion that strikes that that result in the paralysis of
courts are illegal; ironically one of the High Court judges who took
part in the mass leave protest delivered a judgment in this regard.
Due to some lacks, our country not having an effective
machanism to hold the higher judiciary accountable in a steady,
sustained way for its conduct and performance, when even
parliament is accountable.
The self-regulatory and non-enforceable code of conduct for
judges has proved to be infective.
Then how to discipline errant members of the judiciary –who
violate the universally accepted values of judicial life?
In Judiciary of our country also having weakness in the
system. “Providing better incentives to judicial officers to attract
talent will be one way of strengthening system.” Justice RC Lahoti
said in an interview to the Hindu.
A casual aberration of one or two black sheep does not mean
the judiciary is corrupt. These can be taken care of”, he averted while

83
responding to the incident pertaining to the issuance of arrest
warrants against the President and the CJI by a court in
Ahemedabad allegedly on payment of money.
Justice Lahoti said “The CJI being the head of the judicial
family, has the moral authority and enough powers and that
authority has to be promptly, effectively and meaningfully exercised
before the situation goes out of control.
The media cannot criticize judiciary, Advocates can not pass
resolution against a judge as suggested by CJI, then what is the way
out left to correct an ‘errant judge’. Then how will you disclose
corruption in judiciary, is stature of judiciary higher than that of
democratic republic in India the lack of accountability in judiciary is
not because of power of contempt of court vested init but because of
the reason that there is not practical procedure to hold accountable a
judge because of his misconduct.
On an occasion the then CJI, J. Bharucha officially declared
that 20% judges are corrupt in higher judiciary. As they are provided
protection at three levels-
1) There is not practical procedure to remove corrupt judges in
India
2) There is not right authority available to enquire about the
charges if leveled against the judge.
3) Power vested with the court/judges to initiate contempt
proceeding against whom who level charges against judges.
At least contempt proceeding should be restricted incases of
true statement. It needs to be amended.
C.J. Chhagla, C.J. Gajinder Gadkar, J. Tarkunda and Justice
K. Iyer were having public service background but their contribution
is accepted in social engineering and improving the image of the
institution. When the State is at the verge of vanishing, judiciary is
only a ray of hope. Thus judges and lawyers both require to be

84
 disciplined in the interest of justice. As lawyers of today are judges of
tomorrow. The wheel of justice only runs with fair play.
A legal miscarriage of justice may be set right, a moral
miscarriage of justice can never be. What is morally wrong cannot be
legally right. King Luthar has rightly said, “Morality can not be
legislated but behaviors can be regulated. Every one must act
according to Dharama (under concept of Rule of Law) to those who
protect it, those who destroy Dharama got destroyed. Specially the
justice imparting agency should come out of all suspicions of
impropriety and corruption besides brilliance and politeness. They
must have one standard of honesty, justice, integrity and uprightness
to remain trustworthy. Those who preach justice must do justice.
Justice, must not only be done, it must appear to have been done.
If judiciary wishes to retain public trust, it will have to devise
some solutions to this vexed issue/to take effective action against
errant judges. The conduct of the judge should be free from
impropriety, fearless of other power centers-economic or political as
well as free from class bias. To protect the independence of judiciary,
accountability of judges shall have to be ensured and to be certained.

8.6. ACCOUNTABILITY OF THE JUDICIARY

There is a great confusion in thinking about the accountability

of the judiciary in a parliamentary system of government. While the
judiciary cannot be said to be accountable to any other organ of
government, like the legislature of the executive, there can be no
doubt about the fact that it is accountable to the people of the
country.
“We are accountable to the constitution and the oath we take”
while answering a question about corruption and accountability
justice Y.K. Sabharwal3 (designate CJI) said in an interview. Refuting
the charges that ‘judiciary does not represent the will of the people,
the CJI said “when the supreme court declares that executive and the

3. “Judicial Activism is a misnomer – The Hindu October 21, 2005 Page No.11
85
legislature has exceeded its limits and crossed province the judgment
is a decision on behalf of “We, the people of India,” to whom the
legislature and the executive are accountable. The oath that the
judge takes on assuming office says that he will faithfully and to the
best of his ability, knowledge and judgment, perform his duties
without fear or favour, affection or ill-will and that he will uphold the
constitution and the law. This is on the oath committing the judge to
both efficiency and integrity in the discharge of his duties and if he
proves to be inefficient or dishonest, he is betraying the oath he has
taken. The weakness lies in the lack of appropriate arrangements for
enforcing conformity to the oath and through the oath, accountability
to the people.
According to the Constitution, a judge of the Supreme Court or
High court can be removed from office only through a process of
impeachment, that is by an order of the President passed after an
address by each House of Parliament supported by a majority of the
total membership of the House and by a majority of not less than two
thirds of the members of that house present and voting on the
ground of misbehaviour or incapacity. Under this provision, it is
difficult to remove a judge who has been found to be grossly
inefficient. Even when gross misbehaviour involving corruption has
been established, experience has shown that the constitutional
provisions to remove a judge are quite impractical and the corrupt
judges can, therefore get away without any punishment or warning
not to repeat the act as alleged.
If accountability of the judges to their oath of efficiency and
integrity is to be enforced, the only remedy will be to leave this
responsibility to the judges themselves without having to go through
the wholly unworkable procedure of impeachment through the
parliament. A panel of ten senior-most judges of the supreme court
should be given the authority to judge the judges.

86
 There should be greater frankness and transparency in a
democracy in dealing with misbehaviors or inefficiency of the judges.
People seem to be very reluctant to express their views on such
issues on the ground of respect for the institution of judiciary.
Irresponsible statements about misbehaviors or inefficiency should
certainly be discouraged and even punished, but if person who know
the facts directly and well choose to remain silent, it will lonely serve
to shield the corrupt and the inefficient.
Many well known and eminent jurists have strongly pleaded for
more openness and transparency in dealing with corruption among
judges. H.M. Seervai the well known jurist, said: “when judicial
corruption exists (referring to India), it is subject of rumor or gossip,
but not of public discussion or debates. Men seem to act on the
maxim: ‘Speak about it often write about it never”.
Instances of corruption and inefficiency in higher judiciary may
be relatively on small scale but there is little point in not recognizing
that the problem exists and that it has to be tackled through effective
procedures.

8.7. CONCLUSIVE ASPECTS

At present the most powerful Indian judiciary is internationally

respected for its inventive creativity, it is beset with problems apart
from the huge backlog of cases providing disposal, there is the
increasing problems of corruption. India simply does not possess the
effective means to deal with corrupt judges. The lower judiciary
comes under the superintendence of the High Court which discipline
subordinate judges-not always fairly.
In what circumstances, the judicial is indiscipline, unbecoming
conduct and corruption in higher judiciary, comprising the high
court and supreme court judges, to be dealt with, when process of
impeachment is proved to be failure in the past Supreme Court
judges are subject only to impeachment.

87
 The bill for a constitutional commission, for appointment,
transfer and performance of judges, is a necessity of time. It is before
Parliament. The commission may draw a code of ethics for judges of
Supreme Court and High courts. The commission has been vested
with power to inquire suo-moto or on a complaint or a reference into
cases of misconduct or such deviant behavior of a judge other than
those calling for his removal and advise CJI or CJ of High Court
appropriately after such inquiry but scope of appointment,
recommendation is not specified, except to the extent that the
removal of judge is not with in the purview of the commission’s
function and only the power of the parliament, if the 2/3 rd majority is
in favour of the removal of the judge.
It is a welcome step to set up a truly independent and
autonomous National judicial commission to deal with errant judges
effectively and for appointment, transfer and removal of High Court
and Supreme Court judges. This will guarantee greater accountability
and transparency with in the higher judiciary.
A common man approach to NJC will add grace to it. Thus the
committee on judicial accountability will have to take care to whom
to include in it as Presiding Officer/member when process of
impeachment has miserably failed and increasingly the power of
contempt has been used to gag the media to prevent public
discussion of judiciary wrong doing. However the bill introduced for
the said purpose in parliament in 2003 for 98 constitution
amendment for judges (i) transfer and appointment (ii) to prepare
moral conduct, could not be passed because of dissolution of
Parliament.
Now judges inquiry bill 205 speaks to establish National
Judicial council without any amendment in constitution to regulate
the procedure for investigation and proof of misbehaviour or
incapacity of a judge, to bring more judicial accountability and better
transparency in deliverance of justice. The object of this bill is to

88
make High court and Supreme court judges accountable for their
actions including corruption and incapacity. The council is
empowered to issue from time to time a code consisting of guidelines
for the conduct and behaviour of judges. The code will provide for
annual disclosure of their assets and liabilities to the CJI or CJI of
High court as the case may be. Doubts are expressed whether it will
serve the desired purpose without making any amendment in the
constitution.
Our country’s strong and independent judiciary is facing this
challenge judiciously. Rightly the advocates, judges and general
public has a role in maintaining the independence of judiciary. The
executive should have no influence over it (judiciary). The government
must also think over this apex issue for expeditious disposal of cases
which is heavy burden on the Indian Judiciary.
The judicial activism is the requirement of the day but
over/excess activism brings bitter taste. Still we shall have to
appreciate it to bring governance under rule of law in spite of threat
from every nook and corner under our democratic system.
Perspectives are better if all these three sister organs complement
and supplement each other instead of finding faults. It is possible if
healthy criticism of their functioning, by media, advocates and
public, is taken in right spirit. A prosperous and trustworthy system
evolved through standard of honesty, justice, integrity and
uprightness, timeliness, politeness, ethicality and transparency etc.
are roled in to one as accountability as accountability and
transparency are the hallmarks of good governance and modern
societies in the present circumstances of our country.

8.8. REFERENCES.

1. Kuldeep Nayar: “Governance and the Police”, The Hindu Oct,

29, 2002 p. 10

89
2. Kneckjerk reaction of a government unable to put its own
house in order, University Today Vol. XVII NO.5 March 1,
1997.
3. “We are not treading on legislature, executive: CJI.’ The Hindu
Nov. 27 2005 p. 1
4. ‘Judicial activism is misnomer” The Hindu Oct. 21,2005 p. 11
5. The Times of India, New Delhi, Feb. 25, 1997, p.11 col, 1.
6. “Judicial activism”-II The Times of India New Delhi Feb. 28,
1996 p.10 col. 3
7. “Judicial activism – Future of Institutional Autonomy”, The
Times of India, New Delhi, Dec. 11, 95, p. 10, col, 3.
8. Madras V.V.G. Row (1952) SCR 597, See also Dainik Tribune
13-2-97 p. 4 col. 3
9. Panday J.N. Constitutional Law of India CLA, Allahabad – 2,
1992 p. 312
10. Maneka Gandhi V. U.O.I. AIR 1978 SC 957
11. Ibid
12. Olga Tellis V. Bombay Municipal Corporation AIR 1986 SC 180
13. Shanti Star Builders V. N.K.I. Tomato AIR 1990 SC 630
14. Unnikrishnan JP V. State of AP AIR 1993 SC 2178
15. Ratlam Municipality v. Vardhichand AIR 1980 SC 1622
16. AIR 1982 SC 149
17. See also Dainik Tribune, Chandigarh Issue 13, 1990
18. J.B.D. Seuza “Taking the law into their hands”, The Times of
India, New Delhi Dec. 1996p. 19 Col 2
19. “Judicial activism, pollution and Wedding”, the Times of India,
New Delhi September 15, 95 p 11 col. 3
20. Ibid
21. Ibid
22. S.R. Bommai & others V. UOI and others JT 1994 (2) SC 215
23. Ibid

90
24. Judicial Activism – 1 The Times of India, New Delhi, Feb 27,
1996p. 10 col. 3
25. Legal News and Views Vol. II No.3 March 1997 p. 28 col. 2
26. On 27-9-04 that to grant sanction for Prosecution because of
irregularities, favouritism and arbitrary allotments – Home
Ministry decided against prosecution of Satish Sharma The
Hindu 28 September, 2005.
27. Soli Sarabjee – “Taking sufferings seriously”, The Times of
India, New Delhi, Dec. 10, 1995
28. Ibid
29. The Times of India, New Delhi, Sep 15 1995 p. II col 3
30. “Supreme Court gone for issue to issue” The Times of India,
New Delhi Dec. 11, 95 p. 11 col.
31. Dainik Tribune, Chandigrah, Nov. 1, 95 p. 4 col.
32. The Times of India, New Delhi, Dec. 11, 95, p.11 col 1
33. See also PUDR v. UOI AIR 1982 SC 1473, 1478
34. “PIL is a consequence of unresponsive Govt.” The Times of
India, 1 New Delhi, Feb 25 1997 p. 11 col. 1
35. “Courting Controversy”, The Times of India, New Delhi 25-2-97
p. 10 col. 1
36. Ibid
37. The Times of India, New Delhi April 16, 1995
38. “Judiciary on Trial”, The Times of India, New Delhi, April 27,
1995 p. 10 col. 1
39. “Judges held on graft charges”, The Times of India, New Delhi
16-7-94 p 4
40. “Judges should be accountable too”, The Times of India, New
Delhi Oct. 17, 1996 p 13. col 1
41. The lawyers collective Vol. 10 No.1 and 2 1995 p. 28
42. The Times of India, New Delhi Oct, 17, 1996 p. 13 col. 1
43. “Judging the Judiciary”, The Times of India, New Delhi July 15,
1995p. 8 col.

91
44. “How judicial activism in our judiciary, Special report”, The
Times of India July 16, 95 p. 17
45. The Times of India, New Delhi, Sept 13, 1995p. 10 col. 7
46. Ibid
47. The Times of India, New Delhi July 16, 1995 p. 17
48. Ibid
49. The Times of India, New Delhi, Sept. 13 1995 p. 10 col. 7
50. “Is judiciary encroaching on legislature”. The Times of India,
New Delhi Nov. 15 1994 p3 col. 1
51. The Times of India, New Delhi 10-7-1995
52. The Times of India, New Delhi Oct 27, 1996 p. 2 col. 8
53. The Sunday Review the Times of India, New Delhi, Oct. 27,
1996p 2. Col. 8
54. “By your leave” – The Hindu, Delhi, April 22, 04 p. 10 col. 1
55. Ibid
56. The Hindu, Delhi May 22; 04
57. “Strengthening Judicial System my priority – Lahoti”, The
Hindu May 29, 04
58. The Times of India, New Delhi, 12-14-96 p. 13 col. 1
59. Dainik Bhaskar, September 7, 2005 p. 6
60. Ibid
61. “Parliament is not subordinate to judiciary”, The Sunday
Review, The Times of India, New Delhi, Oct. 27 1996 p. 2 col.7
62. “Why not a code of conduct for judiciary as well”, Legal News
and Views vol. 9 No.5 may, 1995
63. The Times of India, New Delhi May 11, 1995 p. 10
64. Manu VIII-15
65. Also see speech delivered by CJI to judges and lawyers Dainik
Bhaskar January 17, 05 p. 11
66. The Hindu (Delhi) Sept. 20, 2004 p. 11
67. Ibid

92
68. “Judicial activism is a misnomer” , The Hindu October 21,
2005 p. 11
69. The Hindu Nov. 27, 2005 p. 1
70. “Fifty years of Indian Parliament” JIPS Vol. XXVII No.1-4
January Dec. 2002 p. 144
71. Even in P & H High Court 2 lacs 44 thousand and 100 cases
are pending in June 2002-Ministry of law and Justice Annual
report 2003-04. Dainik Bhaskar Nov. 25, 2005 p. 4
72. “National Judicial Commission – Justice Krishnayara”, The
Hindu Oct. 20, 03
73. The Hindu (Delhi) Oct. 16, 2004 p. 13
74. Ibid
75. Dainik Bhaskar September 15, 2005 p. 6
76. “Bill to make judges more accountable” – The Hindu July 1,
2005 p. 14
77. Justice Dr. Anand A.S. “Judicial Activism & Social Change” in
his speech in National Seminar organized by Law Department
University of Jammu – Jammu Tavi 14-2-78 to 17-2-87

78. “The Dharmic Law institutional Protection of Rights”, The

Times of India, New Delhi May 6, 1995 p. 10 col. 5
79. Chief Judge- Court of Appeal Federal Circuit, U.S.A.
80. See Articles
Art. 121-Restriction on discussion in Parliament in respect of
conduct of Judge of H.C. or S.C.
Art. 129 S.C. Power to punish for contempt of it.
Art. 138-Enlargement of Jurisdiction of S.C.
Art. 215 H.C. Power to punish for contempt of itself.
Art. 229 Appointments of Officers and Services.
81. Executive, judiciary must be independent: CJ The Hindu Nov.
15, 2005 p. 7
82. Ibid
83. E-governance Center of Excellence Oracle & HP India.

8.9. UNDESIRABLE CONSEQUENCES ENSUING FROM JUDICIAL

ACTIVISM

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 The Judicial system in our country, which is currently unable
to handle ordinary litigations, as it faces a huge backlog of undecided
cases, has to now contend with non-traditional types of litigation in
the form of public interest litigation (PILs) that are attempts to use
Judges as “social engineers”. Abrogating the principle of locus standi
in the name of ushering in social justice and the upliftment of the
downtrodden sections of society, the courts opened their doors so
wide that they find it difficult to control the influx today.
Unwanted and unnecessary of the sobering dicta that Judges
have neither the power of sword nor of the purse, the courts have
taken upon themselves the duty of monitoring several actions, which
fall exclusively within the purview of the executive domain. Often one
may not find fault with the final results achieved, but one doubts
whether the reasoning by which those results were arrived at is
legally supportable.
Article of our Constitution 32, 136 & 142 invest extraordinary
powers in the Supreme Court. Correspondingly, Article 226 invests
the High Courts with the all-powerful writ jurisdiction. The
extraordinary powers must be reserved for extraordinary occasions.
Its frequent use detracts from its efficacy and produces an
incongruous effect.
The number of bogus litigations, which sneak in as public
interest litigation and can simply be collusive, profiteering, or
speculative and the Supreme Court is not using Justice. Frequent
use of public interest litigation for dubious purposes, may have a
chilling effect on entrepreneurs, who would become wary of venturing
into business with the threat of liberally granted injunction order
obtained by their business rivals and enemies.
The individual philosophy of the Judge becomes tailored to the
dominant discourse. A Judge is enjoined by the Constitution to often
perform a counter-majoritarian role to prevent unjustified executive
or legislative incursions into the textually enumerated fundamental

94
rights of citizens, or to prevent abuse of representative democracy. By
entering into the political thicket, as evidenced in the Habeas Corpus
case, judicial activism can wholly erode judicial independence and
run contrary to the Judge’s constitutional duty to decide cases
“without fear or favour”.
The honest judges are meant to act as humble interpreters of
law, not pose as emperors who adjudicate on a whim. We need
faceless, impassive judges, compassionate but disciplined legislators
and an executive that acknowledges the supremacy of the legislature
and independence of the judiciary. Sadly, technical Judges are not
easy to come by in India. Some arrange marriages between rapists
and their victims. Others turn into committed municipal authorities.
Courts are meant to be more serious and active.
This is fact that this has not happened is positive proof that
“justice according to law” and “justice without fear or favour” is the
correct approach.
There are occasions in judicial history, when Judges must
make dramatic, sudden and even revolutionary changes to law, by
marginalizing the “justice according to law” principle. Exceptional
situations may call for drastic steps, but that can happen only
exceptionally. In fact, about sixty years old of our Constitution, I can
only think of one such situation. This was when the executive and
legislature in collusion sought to use the Constitution to destroy the
Constitution itself. Therefore, in my view, the “Basic Structure
Doctrine” evolved by the Supreme Court in Kesavananda Bharati is, if
at all an exercise of judicial legislation, a justifiable one, because
without it there would have been no Constitution and no independent
judiciary worth the name. There are different kettles of fist from the
activism of the 1980s and 1990s where judicial legislation was
resorted to at the drop of a hat to address every socio-economic
problem of the day, however unfortunate and a question of challenge.

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 Luckly, the fervour for judicial activism, which engulfed the
courts during the third and fourth decades seems to be ebbing with
the progressive realization that it is preferable to tread the “highways”
of justice instead of resorting to the “bye-lanes” of activism in the
hope of expeditiously reaching the goal of justice. As I have pointed
out, deviation from the well-trodden path frequently leads to wholly
unjust outcomes findings.

8.10. JUDICIAL ACTIVISM: CERTAIN ASPECTS

It is well known that the concept of “judicial activism” gained

circulation in our country, in the recent past. Ordinarily, activism of
any phenomenon signifies the working or functioning of the same,
with added vigor, but within the parameters fixed by it. Activism in
judiciary, however, came to be known after assumption of certain
functions by it, which hitherto did not form part of its known and
conventional functions. The system, particularly at the level of the
Supreme Court and the High Courts, in a way, had to be strained to
accommodate the same. One of the important factors that
contributed for this is the concept of public interest litigation (PIL).
Many find it difficult to discern the exact inter-relation of PIL and the
judicial activism. The paradox is that, each of them is treated as the
product of the other and only alternative.
If the judicial activism is to have meant the working of the
judicial system to its optimum capacity, be it, as to the quality or
quantity of disposal of the cases, there is every reason for the nation
as a whole, to be happy. The fact that the phenomenon was not
known for either of them, but known after the new role assumed by,
or assigned to the system, had invited mixed reaction.
In India, the institution of judiciary is not of recent origin in
our country, nor was it introduced for the first time by an alien Ruler.
Even before other civilizations were born, we had a perfect, well-
defined and organized judicial system. The definition of judgment in

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the Dharmakosha by Vedavyasa; the principles relating to pleading in
the Katyayana Smrithi; the definition of various crimes and wrongs,
in the treatises by Yajanavalkya and Brihaspati, to mention few, have
no parallels even in our contemporary legal system. At certain stages
the King or the Ruler was treated as the highest adjudicator, assisted
by scholars or specialists. In such cases, the relevant Codes provided
for strict separation of roles, depending on the function. If it became
necessary for a King to act as a judge, it was not only required, of
him, to get detached from the functions of a Ruler, but he was also
required to be bereft of the regal apparel, and put the robes of a
Judge. Slowly, the three institutions came to be handled by different
agencies. While under some systems the separation of powers among
the Legislature, Judiciary and Executive was defined clearly.
The Indian Constitution does not provide for clear-cut
separation, or division of powers. However, it made on thing
abundantly clear. Namely, that the judiciary shall be separated from
the executive. Though Article refers to this aspect in the context of
Public services in the state, the ultimate principles underlying the
same can easily be discerned.
It is correct that the powers conferred on the Supreme Court
and the High Court under Article 32 and 226, respectively, of the
Constitution of India, are very wide in nature. It is not necessary to
deal with their scope in detail, in the present context. At the initial
stages, the proceedings initiated under the said provisions, were
treated purely adversarial in nature. Slowly, the concept of locus
standi came to be widened and it reached a stage where a person
who does not have any interest of his own can maintain such
proceedings even for his bested interest.
It is correct that through the mechanism of PIL and by certain
judgments rendered by them, the Supreme Court and High Courts
have recorded success in many fields. But, one has always to
recognize the universal truth, that the ends by themselves do not

97
justify the means and the latter has to stand or fall on its own
strength or weakness.
It is not without purpose that different agencies or organs of a
Government are assigned the respective functions and they are
structured in such a way, as to enable them to undertake and
discharge the functions effectively. While some are constituted by
elected persons, the others are with the selected individuals through
different processes available in the judiciary.
In the present situation, in the course of pursuit of judicial
activism, the courts are likely to undertake the very functions, which
they used to frown upon, while discharging the conventional judicial
functions. A stage may come when people have to resort to PIL to
control the damage done in other PILs.
One another factor, which the Courts and the proponents of
judicial activism need to keep in mind in this regard, is that more
often than not, the actual adversaries or the effected person are not
represented in PILs, and by the time the damage is done, the
proceedings are taken almost to irretrievable stage rendering the
Courts, virtually helpless. The attempt is not to underrate the utility
and usefulness of the judicial activism, or PIL, but to impress on the
concerned, to ensure that no step is taken, which prove to be
harmful to the institution itself.

8.11. NEW PRINCIPLES

In the process of ‘Activism’ the Court also developed certain

principles which are though not expressly mentioned or defined in
the Constitution but are now made enforceable e.g. the common law
Doctrine of Public Trust has been applied in environmental litigation.
The essence of the doctrine is the legal right of the public to use
lands and water is determined by a balancing of competing interests.
In M.C. Mehta v. Kalapanath Rai the Supreme Court applied the

98
doctrine of public trust and invalidated a lease of river bed land for
establishment of five star hotel.
The Indian judiciary also recognized the need to apply the legal
principles according to the situations in order to provide justice.
Thus, while recognizing the fact that the concepts of ‘innocent until
proven guilty’ and ‘proof beyond reasonable doubt’ increased
emphasis on the accused friendly legal system, in cases involving the
custodial death and violence, the burden of proof was placed on the
State and the Police rather on the victim of this violence and
commission of the offences.
In various other cases, the judiciary also refused the misuse of
law based on the black letter and emphasized on the application
based on the essence rather than on the word. In Sobha Hymavathi
Devi V Setti Ganadhara Swamy where Appellant claimed eligibility to
election from seat has reserved for Scheduled Tribes due to her
marriage to a member of a backward community. The Court rejected
the claim as the intention of the said reservation is to benefit the
‘really underprivileged’ and for the person who are legally entitled for
reservation.

8.12. JUDICIAL ACTIVISM-A WORLDWIDE TREND

Infact it is true that the judiciary always prompt in responding

to the problems posed by the ever-changing societies and in
developing ‘new rights’ becomes evident when one looks at the
‘activist’ judgments with regard to Constitutional interpretation and
judicial review by the Indian Judiciary.

8.13. JUDICIAL ACTIVISM AND RESTRAINT

The Indian Judiciary after Keshavanand Bharati has surety
emerged as the ‘powerful branch’ with the power to define and lay
down the limits for the Basic elements of the Constitution and thus
the Constitution itself. But, this brings in the basic question–who will
bell the cat?

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 We have come a long way since Anwar Ali Sarkar V State of
West Bengal where the judiciary refused to define the vague
terminology of Article 14 as it opined that this may substitute the
judicial intention to that of the Legislative intention leading to judicial
Police making otherwise known as ‘judicial activism’ that should be
discarded keeping in view the separation of powers. Here, the
majority held that “beneficence of laws not to be questioned, but
purely whether the Constitution prohibits such laws or not” till S.P.
Gupta4 where it was held that “the Judge has to inject flesh and
blood in the dry selection provided by the legislature, and by the
process of dynamic interpretation invest it with a meaning which will
harmonize the law with the prevailing concepts and values and make
it an effective instrument for the delivery of justice” and the Supreme
Court Advocates on Record Association V Union of India 5, where it held
that “it belongs to the Judiciary to ascertain the meaning of the
Constitution provisions and the laws enacted by the Legislature.”
Article 50 of the Indian Constitution though talks about the
separation of powers; the doctrine is not adhered to in the strict
sense by the Constitutional framework. The famous Bhopal Gas
disaster explains the glaring inactivity on part of the executive where
by the Judiciary was forced to step into the shoes of the Executive.
Besides this in many cases (especially the PILs) the judiciary had to
step into the shoes of the Executive or Legislature in order to fill the
vacuum to do justice bringing in the issue of separation of powers
being curbed by the Judiciary in our country.
The situation besides leading to further inactivity on the part of
the Executive also causes confusion regarding the status of such
direction as a precedent. Thus, this infringement of this executive
domain may prove fatal to both the separation of powers and also the
judicial structures based on the system of precedents.

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 The Judicial activism is criticized on various counts. But,
before criticizing this process one should also understand the basic
impediments before the judiciary.
1. A discussions regarding placing a judicial activism in the
category of usurpation of the executive domain should start
with the understanding that laws are made in the process of

4. AIR 1982 SC 149

5. AIR 1993 SC

interpreting it and thus the ‘law making’ is not the exclusive

domain of the Legislators. The thin line of difference between
judiciary and legislature regarding the law making created due
to the methods of making it has to be acknowledged.
2. The Judiciary being an interpretative organ have no sources in
hand to execute the decisions. Thus, it can only direct the
Legislature or Executive and is thus dependent upon the later
due to which inspite of creative interpretation, the Judicial
decisions fail to reach logical conclusion.
3. The legal systems deal with the litigation involving single
claimants and thus, the framing of issues and dealing with
such other procedures is dependent upon the litigants
themselves. Whereas in the recent times, the increase in the
mass litigations involving large number of litigants most of
them not even in a position to approach the Court, the
traditional role of the Judge has undergone transformation
demanding the active role of the Judge at every step of
litigation. Thus, any criticism regarding the judicial usurpation
of Executive or Legislature power should come with the
understanding of these basic realities.

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 Except the above reasons, the judiciary being an un-elected
body the judicial self-restraint is largely advised with regard to the
review of public policy i.e. judicial activism in cases of judicial review.
It is correct that in many situations the Judiciary helped in
striking down the policy decisions against the public good and
morality, this also brings in the question about the limits of the
judicial review and whether this leads to the imposition of the Judges
own morality and policy preferences through the judgments. This
situation where the non-elected body of members impose the law
based on their perceptions through the process which does not
require the consent of others may according to some critics prove
dangerous to the society with self-governance.
The land mark judgment in State of W.B. V. Shivananda
Pathak & others, the Supreme Court has stressed upon the judicial
transparency. Self-discipline was recognized as the basis for a proper
justice delivery system. In Tarak Singh V Jyothi Basu, where the
Judge passing the order was himself a beneficiary of the order, the
Court set aside the order of allotment. The Court held that as the
position that the judiciary being a repository of public faith and
trustee of people occupies and the enormous power it wields no other
authority can impose discipline on it. Therefore, judiciary discipline is
self-discipline. It also held that because of the power he wields, a
judge is judged with more strictness than others.

8.14. CHANGING TRENDS IN PIL LITIGATION

Not only the Supreme Court has become active but the
common man has also become active and aware as well as
enlightened with the laws.
It is fact that Judiciary has recognized the need for such
restraint becomes visible through the recent trend regarding
activism.

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 Thus, it was not surprising to see when in State of Kerala V A.
Lakshmi Kutty the Court held that the Court should not adopt over-
activist approach so as to encroach upon the executive or legislative
sphere.
In case Amrita H. Patel V Union of India, where the issue was
whether directions can be issued to the Municipal Corporation
regarding how to make Delhi clean, the Court held that it is not for
the Supreme Court to direct municipal authorities as to how to carry
out their functions and resolve difficulties. The Court also held that
the Court should only direct such authorities to wake up and use the
powers they have to take action and ensure that the city remains
clean.
The Court also further held that keeping in view the separation
of powers in the context of judicial activism held that it is not for the
Courts to tell the executive how to do it’s various jobs, only direct it
to use it’s powers when it is not doing so. In Union of India V Kishan
K. Sharma, when the High Court issued mandamus to the
Government to pay particular scale to the officers, the Apex Court
laying down the limits of the judicial activism in administrative
decisions held that such mandamus is not permissible as the
payment of salaries is administrative decision. The entire Judicial
exercise in Danial Latifi provides an interesting example regarding
the balance between restraint and activism with regards to judicial
review in our country.

8.15. PUBLIC CONFIDENCE

The confidence is the valuable asset and the strongest weapon

in the armoury of the judiciary, it commands and the faith it inspires
in the minds of the people in its capacity to do even handed justice
and keep the scales in balance. According to the study made by two
law professors on the role of the Supreme Court of India reveals that
85% of the Law Students of Delhi University declared that they trust

103
the Court rather than the Parliament. Majority of the students liked
the Public Interest Litigation and Judicial Activism of the Supreme
Court. The study shows that there is no extraordinary high level of
support for the judicial institutions. This clearly shows the public
confidence and trust reposed by the people of India in the Supreme
Court as the ultimate guardian of their rights and liberties and there
is also no lakshman rekha between the powers of three organs of the
state in our constitution and this was also stated by a former
Supreme Court Justice Kuldip Singh (Retd.) in a tribune debate,
December 25, 2007.

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 CHAPTER-IX

CONCLUSION-SUGGESTIONS & FUTURE OF JUDICIAL ACTIVISM

The judiciary of India headed by the Supreme Court, exercises

its powers of judicial review in respect of the legislative and executive
functions of the State. The Supreme Court and the High Court’s not
only act as the arbiters to determine disputes that may arise between
the units of Government but also protect and enforce the
fundamental rights of the citizens against the arbitrary actions of the
Sate. They also interpret the laws made by the legislature in
determining the validity of legislative and executive action of the
State. It is a unique feature identified, probably only with the Indian
higher judiciary that it has the power to determine even the validity
of the constitutional Amendments, which power has been arrogated
to itself by the judiciary, by implication. Further the power of judicial
review is vested not only in the constitutional courts like the
Supreme Court and the High Courts but also in quasi-judicial or
constituted tribunals at state and national level.
Thus, the judiciary under the modern democratic constitutions
performs one or many of the functions which may be as follows:
(i) Interpretation of the constitution;
(ii) Interpretation of the Legislative decisions and protection as well
as maintenance of federal character of the constitutions;
(iii) Protection and implementation of fundamental rights;
(iv) Judicial review of legislative and executive decisions.
(v) Application and interpretation of the laws made by the
parliament and legislative assemblies etc.

The above functions are carried out only by means of judicial

review by the judiciary.
In regard the judicial system in India, the judiciary is under the
Constitution of 1950, it must be stated that, though, from the
British, India had inherited a well-constructed and smoothly

105
functioning judicial system, many of whose forms and details could
readily be adopted by the members of the Constituent Assembly who
drafted the constitution, yet the drafting of the judicial provisions
was not a matter of copying. The two factors which appear to have
influenced the Supreme Court ad-hoc committee to prefer American
system of judicial review are (i) the federal nature of the constitution
and state and (ii) the specific guarantee of fundamental rights in the
constitution. It was realized that only when the courts in India,
exercise the power of judicial review that they can uphold the federal
principle and enforce the fundamental rights. The result is the power
of judicial review vested in the Supreme Court and the High Courts
under many provisions of the Constitution of our country.
The Hon’ble Supreme Court of India has had an occasion to
interpret various expressions used in Article 21 like the ‘person’,
‘State’, ‘life’, “personal liberty”, “procedure established” and “Law”.
The judicial behaviour of the Supreme Court regarding Article 21 can
be broadly classified into two eras (i) between 1950 and 1978 and (ii)
post 1978 period. During the first period, the Supreme Court has
interpreted the meaning of the above expressions in a vary narrow
and restricted sense. The court considered the personal liberty, to be
only the physical liberty of the person, as understood in the Dicean
sense, and unfortunately has interpreted Article 21 to be containing
only the procedural due process. This saga continued right from A.K.
Gopalan vs. State of Madras, to Maneka Gandhi vs. Union of India. It
is, thanks only to the judicial activism of judges like P.N. Bhagwati
and V.R. Krishna Iyer that the speed breakers imposed by the rigid
interpretation of Article 21 could be overcome by the Supreme Court.
In the momentous decision of Maneka Gandhi, the Supreme Court
has given the widest and the most liberal interpretation to all the
concepts and expressions used in Article 21. This judgment has
become the starting point for the expanding horizons of Article 21.
Now, thanks to the judicial activism of the Supreme Court, life under

106
Article 21 does not mean mere animal existence but the right to live
with basic human dignity. Such a life or personal liberty can be
deprived only in accordance with the procedure, which is just, fair
and reasonable. Even, the validity of a ‘law’ also can be tested on the
touch stone of Article 21. In other words, ‘substantive due process’ is
a part of Article 21 as on today, mainly due to judicial activism.
Due to the broad interpretation given to the expressions ‘life’
and ‘personal liberty’ by the Supreme Court, Article 21 has become
the basis for many an unenumerated fundamental rights, which are
inferred and implied. Article 21 is pregnant with many kinds of
individual and social rights of various attributes like the rights of
women and children, human rights, prisoners rights and the rights of
the working class. These implied rights include right to health, right
to pollution free environment, right to education, right to gender
justice, right to medical aid, right to legal aid, right to privacy, right
to speedy justice, and the right to monetary compensation for
violation of fundamental rights especially Article 21. The apex court,
has, thus ensured that the protection under Article 21 is all
pervading, not suspendable even during emergency. The judicial
activism of the Supreme Court guaranteed that Article 21 stands like
a sentinel over human misery, degradation and oppression, and that
its voice is the voice of justice and fair play.
The Public Interest Litigation in India is an aspect of post-
emergency catharsis and it has been primarily judge-induced and
judge led. It has paved way for the public-spirited and enlightened
persons and organizations to fight for the cause of those who are not
in a position to approach the court by themselves for the reasons
mentioned above. The last 20 years, have witnessed a resurgence of
judicial activism principally through the device of Public Interest
Litigation. The flexibility of jurisdiction, the easy access it provides to
the litigant and the range of issues that it permits to be dealt with,
have made it an essential area of the functioning of the Supreme

107
Court particularly in its evident in frustration into a dominant organ
of the state electively keeping in check, the executive Branch. The
Public Interest Litigation has made immense contribution for the
minimization of many ills playing the Indian society mainly due to the
inefficiency or indifference of the administration. The court exercised
the power of judicial review vested in it under Article 32 of the
constitution, in a commendable manner, with an objective to
ameliorate the conditions of countless masses of India, hitherto
unrepresented before the court due to poverty, illiteracy or ignorance
and due to various social and economic barriers. The judicial
activism of the court has come to the rescue of many helpless
sections of the society, in enforcing their constitutionally and legal
rights guaranteed and provided in the constitution of India.

9.1. FINDINGS OF THE STUDY

The study regarding judicially activism, it has been found that

the Supreme Court has changed in its out look and functioning,
drastically in the last about 60 years of its existence. This change has
been in consonance with the changes taking place in the role and
status of the judiciary in other modern democratic countries in the
world. For the purpose of clarity, the findings of the study are briefly
stated hereunder.
(1) Regarding the role of the judiciary in Modern Constitution, it
has been found that the judiciary in Modern Constitutional
democracies is playing an active role. The days of the judiciary
merely finding or declaring the law, have fast disappeared in
India. The judges of today not only find or declare the law
which is considered as the traditional function of the courts,
but they also make the law. The judicial lawmaking has
become an incontrovertible and undisputed reality. The degree
of judicial intervention in the governmental process has
increased, though it varies from one constitution to the other.

108
 However, even within those limited boundaries, the British
courts have exceeded and have gone beyond the basic law-
application and law-interpretation, thanks mainly to activist
judges like Lord Denning.
Therefore, the irrespective structure of the Constitution
or the State or the written character, the judiciary in the
modern constitutions, came to exercise a majority of the
following functions either by exercise a majority of the following
functions either by exercising a power under an express grant
of power or by an implicit sanction.
(2) Regarding the status, position and role of the Supreme Court of
India, established under the Constitution of India, 1950, a
historical perspective is necessary to analyse the same. The
framers of the Constitution envisaged a fearless, incorruptible
and efficient judiciary for the modern and independent India.
At the same time they never intended to establish judicial
supremacy of any kind. Infact T.T. Krishnamachari, one of the
eminent members of the Constituent Assembly has
emphatically stated that the framers of the Constitution did not
intend to create specially favoured bodies which in themselves,
become an “imperium in imperio”, completely independent of
the Executive and the Legislature and operating as a sort of
body politic.
The Supreme Court of India, under the scheme of the
Constitution, functions as a federal court, as a final court of
appeal in Civil, Criminal and Constitutional matters, as a
guardian of the Constitution, as a protector of the fundamental
rights of the citizens and as an advisory body to the President
of India. It is the final interpreter as to the meaning of a
Constitutional or statutory provision. Its judgments are binding
on all the other courts in India, thus they have a force of law.
The most unique power exercised by the Supreme Court of

109
 India and the High Courts, is the power to test the validity of a
Constitutional Amendment, made by the Parliament and State
Legislatures. This power has not been conferred by the
Constitution, it has been assumed by the Supreme Court itself
in the famour cases of Golaknath vs. State of Punjab, and has
been cemented in Keshavananda Bharti vs. State of Kerala, by
propounding the so-called “basic structure” theory. No other
higher judiciary in the world exercises such a power.
The Supreme Court of India enjoys complete
independence in its judicial functioning, from the political
branches of the State. It enjoys the power of judicial review
over the administrative and legislative actions of the Sate.
Article 32 of the Constitution which confers the writ
jurisdiction on the Supreme Court, to enforce the fundamental
rights guaranteed under Part III of the Constitution; is a
unique provision in that right to enforce the fundamental right
of citizens itself has been recognized as a fundamental right
under Article 32 of the Constitution. The changing needs of the
society, the Constitutional obligation of the Supreme Court, the
high expectations the people have from the apex court, and the
willingness of the court to participate in the 1980’s and
thereafter. Therefore it would not be an exaggeration to state
that the range of judicial review power exercised by the India
Supre me Court is the widest in the entire world.
(3) The evolution of judicial activism in India, it has been found
that the Indian judiciary is a late-starter in that direction.
Judicial activism which is the use of judicial power to
articulate and enforce counter-ideologies which when effective
initiates significant re-codifications of power relations within
the institutions of the governance explains the political role
played by the judiciary. In the good old days, it was possible for
the court to discharge only traditional judicial functions like

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interpreting and applying the law made by the legislatures with
due deference to their wishes of Legislatures. However a wide
variety of factors have prompted the judiciary in the modern
world, to deviate from their traditional role.
The reasons for judicial activism include near collapse of
a responsible government, pressure on the judiciary to step in
aid of the people, judicial enthusiasm to participate in social
reform and change, legislature vacuum left open, the
Constitutional scheme, the final authority to make a binding
declaration, the role of judiciary as the guardian of the
Constitution and of the fundamental rights of the citizens and
more importantly the trust and confidence of the people
reposed in the judiciary. The judicial activism may be
demonstrated by the courts in overruling a well settled judicial
precedent, striking down the validity of a law or constitutional
provision, encroaching upon the domains of the Legislature
and the Executive by resorting to judicial legislation and
judicial administration and assuming to itself a power, which
the Constitution never intended to confer on the judiciary. In
the process, the judiciary may aim at judicial absolutism and
judicial supremacy in our country.
In India, the Supreme Court has never been consistent in
its judicial behaviour. In the last about six decades of its
existence, the Supreme Court as an institution has never
behaved in a static manner. Whereas in the fifties or earlier, it
obediently interpreted and applied the laws made of course,
except with regard to the legislation pertaining to agrarian
reforms, in the sixties, the judiciary remained the same as
before. However, the decisions of Golaknath, and In re Keshav
Singh, stand apart as to the juridical activism of individual
judges like Justice Koka Subba Rao. In 1973, the Supreme
Court of India has reached the Zenith of its power in the classic

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 case of Keshavananda Bharati Vs State of Kerala, when the
Supreme Court has assumed to itself the power to invalidate a
Constitutional Amendment on the ground of violation of ‘basic
structure theory’. However, immediately thereafter the
Supreme Court became subdued and silent, due to the
Emergency imposed by the then Prime Minister Mrs. Indira
Gandhi. Probably it would not be incorrect to state that from
1974 to 1977, the Supreme Court was almost obedient to the
ruling government at the Centre. The change of government in
1977, has prompted the judiciary to resurrect itself and the
spate of decisions starting with Maneka Gandhi vs. Union of
India, support this view.
The Court’s progressive attitude in interpretation of the
‘life’ and ‘personal liberty’ has led to the establishment of the
principle that the right to equality including the right against
arbitrariness and discrimination under Article 14, the right to
freedoms under Article 19 and the right to life and personal
liberty under Article 21 are interrelated, intertwined with each
other and that they cannot be applied in isolation with other
rights This principle helps in testing the legislative or executive
action of the State not only on the ground that it violates only
one fundamental right but also all the aforementioned
fundamental right. In such way the judicial behaviour of the
Indian Supreme Court can be described as the judicial
amendment of Article 21 in Part III of the Constitution of India.

9.2. JUDICIAL ACTIVISM IN OTHER FIELDS OF

CONSTITUTIONAL LAW

The Supreme Court’s contribution in the aforementioned fields

of Constitutional Law, by its activism has also made certain
significant contributions in other fields.
(i) the Supreme Court has extended and expanded the meaning of
‘State’ under Article 12 for the purpose of enforcing the

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 fundamental rights by reading as part of “other authorities”
almost all governmental, semigovernmental, quasi
governmental, autonomous and other authorities and
institutions. These authorities include Banks, Public-
corporations, Government aided educational institutions,
Government companies and Public-funded voluntary of
constitution.
(ii) The use of the power of judicial review has resulted in
incorporating the test of arbitrariness in place of the rule of
reasonable classification under Article 14 of the Constitution.
Now a decision of the executive or legislature has to be tested
not only on the touchstone of ‘rule of reasonable classification’
but also on “the rule against arbitrariness’ which goes a long
way in ensuring the maintenance of rule of law under Article
14 of the Constitution.
(iii) The Supreme Court of India has finally gathered courage to say
no to a presidential reference made to it under Article 143 of
the Constitution, in the now famour Ayodhya Reference case.
The court by majority, declined to state its opinion as to the
existence of either a Mosque or a Mandir at Ayodhya by
invoking the doctrine of political questions. This goes a long
way in preventing the political organs from judicializing
political and controversial issues: and
(iv) The Supreme Court of India has successfully arrested the
further politicization of the reservation issue by categorically
fixing 50% as the maximum limit for total reservation in any
unit and also by propounding the ‘creamy layer’ theory to
exclude the underserving sand advanced sections of the other
Backward Classes, from garnering the benefits under Articles
15(4) of the Constitution. However, the failure to fix the 50% as
the unassailable limit, on the part of the Supreme Court has
opened a pandora’s box and enabled certain governments like

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 the Tamil Nadu to defeat the very purpose of such fixation of
the limit. This omission on the part of the judiciary is so glaring
and fatal because, in India, it is the judiciary alone which can
command strict obedience and public confidence, especially in
socially sensitive and controversial matters.

However, it may be stated by way of abundant precaution that

these areas have been mentioned only by way of illustrations, to
explain the activity of the Supreme Court in other fields of the law in
India.

9.3. INSTANCES OF JUDICIAL OVER ACTIVISM

It is noticed that the Indian judiciary has overreacted, in

certain comes in its zeal to do justice, in recent times. Over activism
in the instant case, means a reaction from the judiciary which is not
in consonance with the spirit of the Constitution. The instances may
be cited in support of the above said truth and reality.

(1) The Indian judiciary, especially in certain High Courts got

carried away, in recent times, while dealing with bilberry cases.
For instance, according to the provisions of the Prevention of
Corruption Act, 1947 and the Code of Criminal Procedure, no
public servant can be prosecuted for bribery, unless the
sanctioning authority gives sanction for prosecution. The
sanctioning authority, who is generally a higher official like the
secretary to a department, has the discretion to either sanction
or refuse to sanction the permission for prosecution of a public
servant. However such discretion to sanction has to be
exercised by taking into consideration, the entire material
available against the public servant, his previous service record
and other relevant factors.
The judgment of the Supreme Court of India found that
the Gujarat High Court issued a writ of mandamus against a

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 secretary to the State Government, who was the sanctioning
authority under the Act of 1947, directing him to grant
sanction for prosecution of a public servant for allegedly taking
bribery. In the process the High Court assumed the role of the
sanctioning authority, considered the whole matter, formed an
opinion, it was a fit case in which sanction should be granted.
Because it, itself cold not grant sanction under Section 6 of the
Act, it directed the Secretary to sanction the prosecution, so
that the sanction order may be treated to be an order passed
by the secretary, and not that of the High Court. This is a
classic case where a brand name is changed to give a new
colour to the package without changing the contents thereof.
The Supreme Court of India, has rightly found in the
instant case that, the order of the Gujarat High Court in
directing the sanction to be granted, besides being erroneous,
was harmful to the interest of the public servant, who had a
right to fair trial at every stage. Thus the attitude of the
judiciary akin to that of the Gujarat High Court in the instant
case is a classic example of judicial over-activism i.e.
usurpation of executive powers.
(2) The Constitution of India has provided appropriate
constitutional remedies for violation of fundamental and other
rights. Articles 32 and 226 of the Constitution of India
empower the Supreme Court of India and the High Courts to
issue appropriate order, direction or writs in the nature of
Mandamus, Habeas Corpus, Quo Warrants, Certiorari and
Prohibition to grant relief necessary in a given case. The
expressions ‘appropriate order’ or ‘direction’, though have not
been defined by the Constitution, they are of very wide import
and amplitude. The implication of the language of Article 32(1)
and 226 is that the concerned court can issue any of the above
writs or other “appropriate Orders” or “directions” necessary in

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a given case. There cannot be any remedy, that does not come
in one or more of the above categories of remedies.
In this way, a recent case, popularly known as the Jain
Hawala Diaries case the Supreme Court of India has invented a
new writ called “continuing mandamus”, which appears to be
wholly unnecessary. In the instant case, the Indian Supreme
Court was dealing with a Public Interest Litigation filed by the
petitioner, the Editor of a video Magazine, questioning the
inaction and indifference of the Central Bureau of Investigation
(CBI) in efficiently and expeditiously prosecuting certain
politicians and public figures allegedly involved, in receipt of
‘Hawala’ money from illegal operators in violation of the Foreign
Exchange Regulation Act. A three judges Bench of the Supreme
Court, headed by the then Chief Justice of India, took notice of
the fact that in the so-called ‘Jain Dairies’ case, the Supreme
Court has been giving directions in successive petitions and
that the CBI and other Government agencies had not carried
out their public duty to investigate the offences disclosed. The
court found that the investigating agencies were guilty of
inertia, to investigate into the offences because of the alleged
involvement of several persons holding high offices in the
executive.
Thus, according to the said ground of dealing with the
continuing inertia of the agencies to even commence a proper
investigation, the Supreme Court Division Bench forged out a
new tool of ‘continuous mandamus”. The court observed:

“……in view of the nature of these proceedings

wherein innovations in procedure were required to be
made from time to time to sub-serve the public interest,
avoid any prejudice to the accused and to advance the
cause of justice. The medium of “continuing mandamus”
was a new tool forged because of the peculiar needs of
this matter.”

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 The Hon’ble Ld. court considered that inertia was a
common rule whenever the alleged offender was a powerful
person, and that it became necessary to take measures to
ensure permanency in the remedial effect to prevent revision to
inertia of the agencies in such matters. Obviously the court
wanted to monitor the investigation and the progress therein
from time to time and therefore issued the so called ‘continuing
mandamus’ to secure the said objective.
The intention and motive of the Supreme Court has been
crystal clear and laudable, what is surprising is the fact that
the court extended and expanded the remedial scheme
provided under the Constitution.
(3) In the same ‘Jain Diaries’ case, the Supreme Court has laid
down a number of guidelines for the appointment of the Chiefs
of the investigating agencies like the Central Bureau of
Investigation (CBI), the Central Vigilance Commission (CVC),
the Enforcement Directorate (ED); apart from the Chief of the
State Police. The Court has not only laid down clear guidelines
and directions for the appointment but also with regard to their
status, transfer and tenure etc.
The Supreme Court has invoked Article 32 and Article
142 of the Constitution of India to make orders to the above
effect. The Apex Court considered in this reference as under:-
“There are ample powers conferred by Article 32
read with Article 142 to make orders which have the effect
of law by virtue of Article 141 and there is mandate to all
authorities to act in aid of the orders of this court as
provided in Article 144 of the Constitution. In a catena of
decisions of this court, this power has been recognized
and exercised, if need be, by issuing necessary directions
to fill the vacuum till such time the legislative steps to
cover the gap or executive discharges its role”.

In this way, the Supreme Court has tried to uphold the

cardinal principle of ‘rule of law’ and to isolate the investigating
agencies from the executive or political influence. The aim

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 cannot be faulted by anyone. However the clear judicial policy
making and judicial legislation in the aforementioned areas do
not augur well for the constitutionalism. It would have been
appropriate, for the Supreme Court to leave these functions to
the Legislature and Executive, of course with a caveat that they
have to act in accordance with the principles of ‘rule of law’ and
“fairly”. The Supreme Court cannot sit in judgment as to that
should hold a Public office, for how long, and as to how to
exercise his powers and functions. The Court ought to have
reminded itself that mode of appointment, fixation of tenure,
and transfer etc. and typical executive functions and that the
court can interfere with them only when such functions are
discharged in an unlawful and unconstitutional manner. It
may not be out of place in this reference to mention about the
transfer and subsequent revocation of the decision.
(4) The Supreme Court of India has resorted to direct judicial
legislation in many of the recent cases by invoking Article 142
of the Constitution which empowers the court to give any
direction for rendering complete justice in implementing the
same. This judicial legislation simpliciter can be seen in the
case of defining ‘sexual harassment of working women ‘and’
laying down number of guidelines to punish the guilty” etc. in
Vishaka vs. State of Rajasthan, evolving an elaborate scheme
for ‘nationalization’ of medical education by vesting the control
of 15% to 25% of the medical seats in the Central Government
and evolving a detailed scheme for the collection of capitation
for the payment seats quota of 50% of the seats in Medical
Colleges and for allotment of ‘free’ seats in judicial legislation
was resorted to, in a number of Public Interest litigation cases
pertaining to preventing of environmental pollution in directing
the closure of polluting industries, their shifting and directing
them to change the use of fuel etc. In fact, in all these cases,

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 the court could have done well, by pointing out the legislative
vacuum left open by the Legislature and by reminding the
same to fill the vacuum in view of the urgency of taking action
in public interest.
(5) The Indian judiciary headed by the Supreme Court has claimed
the power to nullify on substantive grounds even an
amendment made to the Constitution by the amending body if
it affects the ‘basic structure or frame work of the Constitution”
in 1973 and consolidated this self assumed and self acquired
power in subsequent decisions. This kind of judicial control
over the constitution is evolved by and known to courts in
India only.
(6) Anybody can say that while the Supreme Court on the one
hand declared that “judicial review” as a basic feature of the
Constitution on the other hand allowed the IX schedule to the
Constitution and Article 31-B to remain in the constitution
even after they were challenged before the Court.
(7) In reference regarding challenge of the validity of the
Administrative Tribunals Act, 1985, the Parliament was
advised by the Court to amend the Act to save it and the
Constitutional Amendment authorizing the Act from being
struck down by the Court. Parliament duly obliged the court by
amending the Act twice at the instance of the Court.
In 1998, the court repeated the similar episode, by
suggesting and approving amendments to the Ordinance on the
Central Vigilance Commission (CVC), made by the Central
Government.
(8) In M.C. Mehta vs. Union of India, a Supreme Court of India’s
Division Bench consisting of the Chief Justice Dr. A.S. Anand
and two other judges directed the Delhi Government to ban the
plying of commercial vehicles of over 15 yeas old and fixed
December 31, 1998 as the deadline to implement this order.

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 Thus by a single stroke of pen, the Court ensured that about
10,000 vehicles would be off the roads, in the interest of
preventing vehicular pollution. The direction of the court is
sweeping because the same could have been achieved, by
directing the government to enforce the pollution related laws
and the relevant provisions of the Motor Vehicles Act, 1939 ….;
and
(9) In citation of Supreme Court of India namely L. Chandra
Kumar vs. Union of India, a 7-Judges Bench of the Supreme
Court, while declaring the power of judicial review as an
essential and basic feature of the Constitution, extended the
power even to the administrative tribunals established under
Articles 323-A and 323-B of the Constitution. The apex court
held that the Tribunals are competent to hear matters where
the vires of statutory provisions are questioned with a rider
however that they can not act as substitutions for the High
Courts and the Supreme Court, which have been specifically
entrusted with such an obligation. Even though the court held
that all such decisions of the Tribunals will be applicable and
before a Division Bench of the respective High Courts, which
an expansive and generous interpretation would be dangerous
to the constitutionalism as it would lead to multiplicity of
decisions on the same question of law as such without any
certainty. This decision is another example of the judicial over
enthusiasm of the Supreme Court.
The above stated are some of the areas where the
judiciary appears to have shown unwarranted enthusiasm, as
the same out put could have been secured, by acting like a
catalyst and emperor.

9.4. JUDICIAL ACTIVISM – SUPPORT AND CRITICISM

There is no blind support to the judicial activism of the apex
court. Very few scholars argued for a total support to the judicial

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activism. Others doubt the effectiveness of the concept, assessing
from the viewpoint of the long-term impact and implementation of the
decisions given by the court. This debate about the justification or
otherwise of judicial activism is not unique to India alone but also in
other countries on the land.
The effected and appreciated arguments can be made for both
activism and restraint. For instance, advocates of restraint have good
philosophical grounding to argue, as they do, that in making
Constitutional interpretations, the justices must bind themselves to
the specific intentions of those who framed the relevant
constitutional provisions.
The opponents of judicial activism, are naturally the supporters
of judicial self-restraint. They repeatedly expressed the opinion that
the political process was the best method to resolve disputes where
values conflicted, and that it was a contradiction in democracy for
Oligarchic Court to set itself against the elected legislature or to act
in its stead. The philosophy of judicial restraint is reflected in one of
the early dissents of Justice Holmes, who summed up the essence of
judicial self-restraint in propounding his “reasonable man” thesis. He
said, “the court should nullify legislative acts, unless it can be said
that a rational and fair man necessarily would admit that the statute
proposed infringe fundamental principles as they have been
understood by the traditions of our people and our laws”.
In opposition to judicial activism, there are difficulties created
in implementation of the directions given by the court, in the form of
some affirmative nation. This so called affirmative activism may
require the court in supervise continuous action which affects large
number of individuals. Consequently, it often produces extensive
administrative responsibilities for the court. In the process, the
courts formulate controversial programs of affirmative action
requiring detailed administration for protracted periods of time under
constant judicial supervision. In India, the continuing monitoring of

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the “Jain –Hawala – Diaries Scam”, investigation by the Supreme
Court in Vineet Narain vs. Union of India, by forging a new writ called
“continuing mandamus” and the series of positive directions
pertaining to shifting of polluting industries causing damage to Taj
Mahal and their closure and the banning of the plying of 15 years old
and more than 15 years old commercial vehicles in the National
Capital Region of Delhi demonstrate this kind of judicial
administration which is continuous. This judicial attitude raises both
pragmatic and jurisprudential questions about the limits of the
judicial power.
The supporters of judicial activism counter the above criticism
by arguing that the Supreme Court and the High Courts being courts
of record can invoke their power to punish for contempt, in ensuring
the implementation of their directions. If any authority ignores,
neglects or willfully disobeys the directions of the court, it would be
liable to be punished for contempt of court. However the moot
question is who could punish the contemner? Is it not the same
executive, which committed the contempt of court? Regarding the
interpretation of any unwritten and nonexistent rights as part and
parcel of the enforceable fundamental rights the supporters of
judicial activism vehemently argue that the Supreme Court can, even
in the absence of any enabling legislation, invoke the Constitutional
power under Article 142, to make judicial legislation which would
have the force of law, till the competent legislature makes the law in
that direction. The Supreme Court has started invoking Article 142
regularly, in the cases like Vishakha vs. State of Rajasthan, for
punishing persons found guilty of sexual harassments of working
women and Vineet Narain vs. Union of India, for regulating the
appointment of the Central Vigilance Commissioner, the Chief of
Central Bureau of Investigation and the Chief of Enforcement
Directorate. The ultimate aim of the Supreme Court in the above
cases appears to be to render “complete justice” in the given matters.

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 The juridical activism of individual judges is supported by even
stanch advocates of judicial restraint like Felix Frank further, who
said,-“Judges are men, not disembodies spirit; as men they respond
to human situations”. The learned judge went on to add that the
judges do not reside in a vaccum and that they are “not dummies,
unspotted by human sentiments and feelings”.

9.5. CONCLUDING OBSERVATIONS

The Indian Supreme Court plays an important role in Indian

Democracy. It is the highest court in the Indian judicial system and
one of the three coequal branches of the national government. It has
primary, though not exclusive, responsibility for interpreting the
Indian Constitution and for defining the scope and content of its key
positions. As a principal guardian of the constitution, the court is
frequently called upon to assess the validity of statutes passed by
legislature with 2/3rd support.
The Supreme Court however is, quite distinct from other
policy-making institutions of Indian government. Specifically, the
Judges of the Supreme Court are not elected, nor are they in any
other way directly accountable to the Indian people. The fact that the
Indian Republic is governed by a written constitution offers a third
alternative for reconciling the Supreme Court’s power of judicial
review with fundamental principles of democracy in our country.
Except the said characteristics, the Supreme Court is a vital
and integral part of the complex system of democratic self-
government under which Indian lives. It fulfills an essential
governmental function by assuming primary responsibility for
enforcing the counter majoritarian provisions of the constitution.
It is not an easy job to decide whether the Supreme Court plays
an appropriate role in Indian democracy. The issues that have been
raised and the material that has been examined provides a solid
foundation for reaching the below-mentioned conclusions:

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(1) Clearly the courts of the lands are vested with heavy
responsibility. The judiciary in India is one of those few
institutions, which have survived despite the great pressure of
change and circumstances suffered generally by other
institutions of the government.
(2) The modern jurisprudence that has emerged in the recent
times has undoubtedly contributed in a great measure to the
well-being of the society. People, in general, now firmly believe
that if any institution or authority acts in a manner not
permitted by the Constitution, the judiciary will step to decide
the adequate decision.
(3) The Indian Supreme Court is regarded by the people of India as
the greatest institutional watchdog of people’s fundamental
rights and the most assertive organ that the nation possesses.
This perception of the people has caused a spate of politico-
legal issues to come to court for adjudication. These mainly
come through the pipeline of public interest litigation, which
helped the helpless to get easy access to justice.
(4) The Indians raise grave constitutional issues and exercise their
fundamental rights in invoking its jurisdiction; the Supreme
Court is left with little choice but to act in deference to its
constitutionally prescribed obligations. This is the reason why
the Court has had to expand its jurisdiction by, at times,
issuing novel directions to the Executive; something it would
never have resorted to had the other two democratic
institutions functioned in an effective manner.
In this way the present situation is a corrective measure,
the phenomenon of judicial activism in its aggressive role will
have to be a temporary one. Fears of judicial tyranny are really
quite unfounded because Judges themselves are aware of the
fact that the non-elected judiciary is neither meant nor
equipped to act as a policy-making authority.

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(5) The critics of judicial activism argue that the Supreme Court
has over played its role under the Constitution in the garb of
judicial activism, as long as it resulted in making the
government more responsible to the governed, the judicial
activism is unexceptionable.
(6) The present judiciary even the other countries do not only finds
the law but also makes the law to meet the needs of the
changing times.
(7) According to supporters of judicial activism, they not find any
evidence to show that the Supreme Court has been trying to
achieve judicial Supremacy at the cost of the legislature and
the executive, in general. Infact the court has been acting as a
catalyst to activate them in discharging their Constitutional
duties.
(8) It is evident that Judicial Activism is a temporary phenomenon
because it has never been consistent any where in the world.
The present day activism of the Supreme Court may recede into
background once there is a strong government and responsible
legislature.
(9) The Judicial activism by the Supreme Court has contributed
immensely for the development of certain fields in
constitutional law after 1980 that ultimately helped the weaker
sections, downtrodden and oppressed, depressed persons of
the society since a long period.
(10) It is true that the judiciary head by the Supreme Court of India
has at times made forays into the typical political arena but it
has retracted to its own jurisdiction because of self realization
and the voice of public.
9.6. SUGGESTIONS

The study revealed that the Supreme Court has by and large
played the Constitutional role and has always upheld the principle of
constitutionalism. It has been in the forefront of rendering Justice,

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social, economic and political, on par with the other political
branches of the government. However in view of the dangers that
could be posed by an imperial and over-activist judiciary the
following suggestions are made in order to protect the efficacy and
efficiency of the judiciary in India headed by the Supreme Court.
1. The Honorable Judges of the Supreme Court and High Courts
must always remind themselves the statement of Mr. Justice
Jackson of the U.S. Supreme Court that – “We are not final
because we are infallible, but we are infallible because we are
final.” Constitutional democracy implied that the ultimate
interpreter of our fundamental law is not an autonomous
judiciary but the interactive understanding of the people, their
representatives and the judges together. Judicial power and
judicial pronouncements should therefore be subjected to the
same active, but respectful, scrutiny for their legitimacy as the
actions of the political branches are subjected to.
2. The Judiciary may remind itself that under no Constitution can
the power of courts go far to save the people from their own
failure. There are too many dangers to the judiciary itself from
an omnipresent and rescuing judicial review. In its own
interests the Indian judiciary may sooner or later have to
propound a policy of judicial nonintervention in defined areas.
Such a policy is not a sign of weakness or abdication by the
judiciary but only recognition of the fact the Constitution did
not make the judiciary a substitute for the failure of the other
branches of government and that judicial power has its
limitations and jurisdictions.
3. The Indian society has placed judges on a very high pedestal.
Therefore the courts must justify that position remembering
forever that the constitution does not give unlimited powers to
any one including the judges of all levels.

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4. The judiciary can remained in continuation to command
overwhelming confidence of the people only when the judiciary
can expedite the process of administration of justice. Therefore
unless the Supreme Court renders speedy justice, it would not
have moral force to be active. It is suggested that the
Governmental should, in consultation with the Supreme Court,
evolve a comprehensive scheme for reducing the pendency of
cases. Abolishing system of vacation for courts for longer
periods would be a good step in this direction. The
recommendations made by the Law Commission in this regard
must be given due weightage and speedily implemented to
achieve this important aims and goals.
5. Judicial creativity even when it takes the form of judicial
activism should not result in rewriting the constitution or any
legislative enactments. The active judiciary would do well to
remember that fidelity to a political or social philosophy and
discernible from the constitutional objectives in the discharge
of judicial functions is not judicial activism.
6. Another former Chief Justice rightly pointed out it is expected
that judiciary would keep every one within the bounds
indicated by the Constitution that does not mean that the
judges are left free to move wherever they like. The bonds are
equally applicable to the judges, as the Constitution has
entrusted the additional task to not merely keep every one else
within bounds but also to remain within bounds themselves.
7. The courts must keep away from the political by not donning
the political role. They should remember that the court can not
save the country but they may be able only to buy the time
necessary for revitalization of other institutions of government.
Even if the Nation is obsessed with judicial salvation, the
judiciary itself should not believe in the same.

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8. It is well established fact that the judicial activism of the
Supreme Court has helped in enforcing the rights and interests
of the citizens, and also in keeping the other branches of the
government within their Constitutional boundaries, the
judiciary should constantly remind itself that the need of the
need of the present circumstances, the Supremacy of the
Constitution and not the supremacy of the judiciary. As the
judiciary has, invariably to rely upon the other institutions for
implementation of their orders and directions, unless there is
an equal public faith and confidence in all the three organs of
the State, the principle of Constitutionalism cannot prevail.
Therefore the judiciary has to be active for noble causes but
not at the cost of degrading the other organs of the State.
9. The judicial activism in Constitutional interpretation and in
expansion of ‘personal liberty’ is a most healthy trend, the
courts should realize that in a system of limited government
like India, the delicate balance between the three organs of the
State should not be overloaded in favour of any one of them
beyond tolerable limits. The judiciary should not be an
exception to this cardinal principle of Constitutionalism.
10. Regarding the appointment of judges, instead of vesting the
power to recommend the appointment and transfer of judges of
the Higher Judiciary should form a committee headed by the
Chief Justice of India having five or six senior most judges of
Supreme Court including adequate government representation
and senior advocates also. Then, the collegium of the
recommendatory committee would be representing a larger
section of interested groups and, the appointments would be
more transparent and reliable.
11. The judiciary of India is independent but the judges are not
independent. Probably, this statement has been made, from the
view-point of the vulnerability of the individual judges, some of

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 whom could not isolate themselves from their caste, religion
and other extraneous influences, in discharging their official
duties. Therefore, the ugly face of casteism and minoritism
should not be a deciding factor for the appointment of judges
but only the merit and honesty of the individuals.
12. The Indian judiciary also should be made financially
independent to cope up with the heavy backlog of cases and it
should be made a planned item. Such a financial independence
would be necessary to add speed to the justice delivery system
by having adequate number of judges in the Supreme Court,
High Courts and the subordinate courts.
13. There should also be accountability of the judges. While
ensuring that the Legislature and the Executive are
accountable to the Constitution, the judges should remember
that they are also equally accountable to the Constitution and
ultimately to the people. The courts must respond positively.
14. The judiciary must exercise self-restraint in certain defined
areas where the political organs of the State have an exclusive
role to play. What is necessary today is the judicial activism of
the courts coupled with judicial self restraint. As judging the
judges is a difficult and risky proposition, what, is necessary is
an application of the theory of judicial self automation by the
judiciary itself.
15. The judiciary headed by the Supreme Court should not be
unduly over sensitive to any criticism judge led the same in
made by well meaning people. The power of Contempt of Court
should be used very sparingly that too only in the cases where
the institution of judiciary is attacked with malafide intention
by any one.

In the last, it must be stated that the judiciary in India

particularly the Supreme Court has played the role of catalyst in
providing justice to the citizens of India by keeping the other wings of

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the Government diligent and awake to the needs and challenges of
the time. The judiciary has justified the faith and trust reposed by
the Constitution. The position of the judiciary is akin to that of a
trustee.
When other agencies or wings of the State overstep their limits,
the aggrieved parties can always approach the courts and seek
redress against such transgression. When, however, the courts
themselves are guilty of such transgression, to which forum would
the aggrieved parties appeal? Of the different types of despotism, the
judicial despotism is not only inexcusable, it is also most irrational.
The judicial activism in India is very appropriate to quote the
words of Dr. A.S. Anand, the then Chief Justice of India who said:

“26 January 2000 marks the completion of fifty years of

the Supreme Court of India. At this juncture, it is time to weigh
what it has contributed and where it has lagged behind. This is
all the more so when the Supreme Court is the custodian of the
Indian Constitution and exercises judicial control over the acts of
both the legislature and the executive.”

In the above said reference, it is satisfying to see that its

achievements have been significant in all areas of the nation’s life. It
has not shied away from its responsibility of upholding the goals of
the Constitution. One of the most powerful institutions of the world,
the Court decides cases touching all facets of human life and
relationships. It is the defender of the Constitution and the principles
enshrined therein, guardian of human rights, and promoter of peace,,
cordiality, and balance between different organs of the government.
At the time of its inauguration on 28 January 1950, Justice Harilal
Kania, the first Chief Justice of the Court said that the Supreme
Court would declare and interpret the law of the land, and with the
tradition of the judiciary in the country, it would work in ‘;no spirit of
formal or barren legalism’, within the limits prescribed by the
Constitution. The Court, as part of the federal system and as the
defender of democracy, is responsive to the changes in Indian society.

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9.7. FUTURE

In the present circumstances the politics of the country has

become complicated and the people of the country loosing their faiths
day by day in politics, then the judiciary is having more active role,
the question is remains that what will be the future of judiciary and
judicial activism?
Jurist and Senior Advocate Rajeev Dhawan, a Senior Advocate,
has argued that the judiciary was an instrument of state in the
British days and largely retained this character even after the
independence. He has stated that the construction of the judiciary as
an institution of state paved the way for regarding it as different from
other bureaucracies of the state that were directly subjected to
operation, day to day line management control. They were also under
a positive mandate to give effect to all or any directions from the
political rulers. But over the last few decades it is seen that the
judiciary has secured an independent recognition for itself and is
becoming a constitutional institution in its own right. Thus we see its
transformation from being an instrument of state to an institution of
governance.” This is overall a positive trend despite the limitation and
lacunae indicated earlier, considering the decay of other institutions
of state.
In this way, the many questions arise regarding the trend of
the judiciary will continue or not. The judiciary should be more
assertive and responsible to face all challenges. There is question of
discretion at national level that the independence and importance of
the judiciary will remain in its position to curb and curtail the role
and power of executive and parliament.
The jurists of our country are very much in doubtful what will
be the future role of the judiciary and the role of the executive and
legislature.

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 If the parliament will control upon the judicial activism
committed by the Indian Judiciary it is a great question for
discussion for the future. There should be amendment in the
constitution for to provide the appropriate and adequate
provision to ascertain the powers separately of all the three
organs of the state to run the country properly without any
criticism or obstruction from any corner. It will be in the
interest of our country.

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