JAMIA MILLIA ISLAMIA

LEGAL METHODS ASSIGNMENT

TOPIC – “JUDICIAL ACTIVISM: CONTRADICTION TO

SEPARATION OF POWERS”

SUBMITTED TO - DR. S. SARKAR SIR

SUBMITTED BY-
B.A. LLB (Hons.) (SELF FINANCE)

2ND YEAR (III SEMESTER)

BATCH -- (2019 – 2024)

SHIVAM KUMAR VIKRAMADITYA DAS

ROLL NO. – 56 ROLL NO. – 64

STUDENT ID- 201903310 STUDENT ID- 201906618

INTRODUCTION
One of the indisputable features of characterizing modern democratic states and developed
societies is the pluralism of opinions. The variety of attitudes, ideas and assessments is equally
evident with respect to the jurisdictional activity of the courts. In this context, the concept
‘Judicial Activism’ has increasingly been employed and, at times, has even become a category
defining constitutional justice.

Today all the systems might not be opting for strict separation of powers because that is
undesirable and impracticable but implications of this doctrine can be seen in almost every
country in its dilated form. Separation of powers means the legislature, executive and judiciary
and separate and thus, independent in nature. The legislature makes laws; the executive enforces
the laws and the judiciary interprets the laws. Under the Indian Constitution, the State is under
the prime responsibility to ensure justice, liberty, equality and fraternity in the country. State is
under the obligation to protect the individuals’ fundamental rights and implement the Directive
Principles of State Policy. In order to restrain the State from escaping its responsibilities, the
Indian Constitution has conferred inherent powers, of reviewing the State’s action, on the courts.

Judicial Activism comes into play when strict norms of locus standi are relaxed and a
representative petition on behalf of deprived, poor and other isolated section of society is heard.
It balances the various organs of the government and square the natural justice in public welfare.
In this way judiciary examine the validity of any law and maintains law and order in country or
society according to provision of the constitution.

More recently than ever, judicial activism has become a subject of debate in India. The
understanding of Judicial Activism is largely driven by people’s perspective of the role of courts
in a democracy. While some believe that judicial activism is necessary for the protection of
public interest, others are of the opinion that as a judicial function, courts are required to interpret
the law and not make them.
JUDICIAL ACTIVISM
The term judicial activism was first coined by Arthur Schlesinger Jr., an American historian and
educator, in his article ‘The Supreme Court: 1947’, published in fortune magazine in 1947.
Judicial Activism has not been defined by any statute or by judiciary. In simple words, judicial
activism denotes the pro-active role played by the judiciary in the protection of the rights of the
citizens and in the promotion of justice in the society. It implies the assertive role played by the
judiciary to force the other two organs of the government, legislature and executive, to discharge
their constitutional duties properly.

Judicial Activism is the antithesis of judicial restraint, which means self control exercised by the
judiciary. It is also known as ‘Judicial Dynamism’.

Black’s Law Dictionary defines judicial activism as a way of exercising judicial power that
motivates judges to depart from normally practiced strict adherence to judicial precedent in
favour of progressive and new social policies. It is commonly marked by decision calling for
social engineering, and occasionally these decisions represent intrusion in the legislative and
executive matters.1

In the words of Justice J.S Verma, Judicial Activism must necessarily mean “the active process
of implementation of the rule of law, essential for the preservation of functional democracy”.2

Justice P.N. Bhagwati laid the foundations of judicial activism in India. According to him, “The
judge infuses life & blood into the dry Skelton provided by legislature & creates a living
organism appropriate & adequate to meet the wants of the society. The Indian judiciary has
adopted an activist goal oriented approach in the matter of interpretation of fundamental rights.
The judiciary has expanded the frontiers of fundamental rights and the process rewritten in a part
of the Constitution through a variety of techniques of judicial activism”.3

The above discussions prove that the expression ‘Judicial Activism’ has eluded a definition as an
abstract concept and is therefore incapable of formulation by definition only. It means various
1
Black Law Dictionary, Sixty Ed. 1891-1991
2
M. Laxmikanth, Indian Polity sixth ed. (McGraw Hill Education Private Limited, Chennai, 2020)
3
Justice Bhagwati P.N., Enforcement of Fundamental Rights – Role of the Courts, Indian Bar Review, 1997
things to different people. For a few it’s the dynamism of the judges and for a few others, it
means judicial creativity or a tool for bringing social revolution through the judiciary.

ORIGIN OF JUDICIAL ACTIVISM

The concept of judicial activism which is another name for innovative interpretation is not of
recent past. It was born in 1804 when Chief Justice Marshall, decided “Marbury v. Madison”4.
He observed that the constitution was the fundamental and paramount law of the nation and “it is
for the court to say what the law is.” He concluded that constitution of the United States confirms
and strengthens the principle supposed to be essential to all written constitutions; that a law
repugnant to the constitution is void and that the courts as well as other departments are bound
by that instrument. If there was conflict between a law made by the congress and provisions in
the constitution, it was the duty of the court to enforce the constitution and ignore the law made
by the congress. Thus, the twin concepts of judicial review and judicial activism were born5.

JUDICIAL ACTIVISM IN INDIA

In India, it is very difficult to find out the origin of Judicial Activism. Justice D.P. Madan has
said that judicial activism has been in existence throughout the centuries and in many different
legal systems. It forms an important instrument for developing law to make its broad and general
rules applicable to an ever changing society to deduce from old precedents analogous reasons to
resolve different types of conflicts arising out of altered circumstances and technological
advances. He has also pointed out that, to deny judicial activism to the Court is to nullify the
judicial process and to negate justice. A judge who denies to himself judicial activism denies to
himself the role of a The Judge.

The active role of the court depends upon the person who is evaluating the role of the court, his
interests, ideologies, etc. According to Justice Bhagwati, Judicial Activism is the active use of

4
(1803) 5 U.S. 137
5
S.P. Sathe, Judicial Activism in India, (Oxford Publications, 2002)
the power of the court to get willed results. He used to call it a new form of constitutionalism
which means the Constitution itself is a source for such activist approach of the Court.

From the year 1950 to 1966 in the post independence period - there was an excessive deference
towards legislature and executive wings of the Government. The A.K. Gopalan V. State of
Madras6 case proves this statement. The article that was in question in this case was Article 21
of the Indian constitution. It says that "No person shall be deprived of his life or personal liberty
except according to procedure established by law". The phrase ‘procedure established by law’
was brought into question. It was argued that the procedure should be accepted only if it is
proper, reasonable and fair as is the case in the United States of America. This argument was
rejected by H.J. Kania, the first Chief Justice of independent India. He interpreted procedure as
the system established by a competent legislature which may be proper or improper, it ought to
be followed. The Supreme Court will not enquire the reasonableness or the wisdom of the
legislature. Such was the deference or attitude of the highest court towards the legislature and the
executive.

For a long time, Indian judiciary adopted a traditional approach towards the concept of judicial
activism. It would be wrong, however, to say that there have been no incidents of judicial
activism in India. Some scattered and stray incidents of judicial activism have taken place from
time to time. But, they did not come to the fore as the very concept was unknown to India.
However, the history of judicial activism can be traced back to 1893, when Justice Mehmood of
the Allahabad High Court delivered a dissenting judgment which sowed the seed of judicial
activism in India.

Judicial activism is nothing more and nothing less than the activity to bring justice to the
doorstep of people, particularly in areas not covered by any statute made by a legislature. It may
be active use of the judicial power or it may be making new interpretations or evolving
innovative ways of dispensing justice, whatever way it is called one thing is clear that it has
become an integral part of the judiciary in India.7

6
A.I.R 1950 S.C. 27
7
M. Laxmikanth, Indian Polity sixth ed. (McGraw Hill Education Private Limited, Chennai, 2020)
NEED OF JUDICIAL ACTIVISM
Judicial activism is a concept or power of judges which defies or contradicts the doctrine of
separation of powers. So why do we need more activism from our courts? For a welfare state and
developing country like ours with the existing socio-economic and political conditions, it is
highly impossible for the judiciary to confine itself only to interpret the laws. It has to read the
laws to extend its jurisdiction in the field of law making or with an intention of promoting the
statute to reach and benefit for the people it is meant for and for the cause of social justice 8. It is
also impossible for the legislature to foresee all the eventualities and future occurrences and
enact any law. It is the duty of the judiciary to scrutinize and fill up the gaps. When the executive
fails to discharge his obligation it becomes a primordial duty of the judiciary to compel the
executive to perform the lawful functions.

These are the times when corruption has entered into every organ of the society. It has led to the
erosion of democracy, fewer consensuses among the political parties, and uncaring attitude of the
executive, uncertainty in the political scenario, criminalization of politics, declining morals and
decaying institutions of democracy, ignorant parliament and fractured mandate. At this juncture
the judiciary cannot afford to be idle or a silent spectator 9. It becomes imperative on the judges to
bring back discipline. It is the Constitutional obligation of the courts to maintain the ‘Rule of
Law’, uphold and protect the basic structure of the Constitution. It is the duty of the judiciary to
lift the veil from misdeeds of the ruling elite and power brokers. Failing to act by expanding their
judgments and fearlessness in an area in which they were reluctant to step in the earlier occasions
may lead to the down fall of democracy.

It is said that even if the parliament and state legislatures in India make laws for 24 hours a day
and 365 days a year, the quantum of law cannot be sufficient to fulfill the changing needs of the
modern society.10 The same holds good in respect of many a legislations previously passed by
the competent legislatures. In spite of the existence of a large number of pre and post
constitutional laws, there still remain certain areas which may not have been legislated upon.
This may be due to inadvertence, lack of exposure to certain issues, the absence of legislation or
8
Upendra Baxi, Judicial Activism: Legal Education and Research in Globalising India (Mainstream, New Delhi,
1996 )
9
M.P. Jain, outlines of Indian Legal and Constitutional History, sixth ed.
10
M. Laxmikanth, Indian Polity sixth ed. (McGraw Hill Education Private Limited, Chennai, 2020)
indifference of the legislatures. Thus when a competent legislature fails to act legislatively and
make a necessary law to meet the social needs, the courts often indulge in judicial legislation
thereby encroaching in the domain of the legislature.

The greatest and strongest weapon in the armory of the judiciary is the confidence 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 in any dispute. As Prof. Baxi points out, many individual players are
responsible for activating judicial activism. They are civil right activists, people right activists,
consumer rights group, bonded labor groups etc. he further points out that although judicial
activism is a collective venture, and some judges have individually paved the foundation in this
regard11. These judges include Krishna Iyer J., P.N. Bhagwati, and J. Chinnappa Reddy etc.

Though it is difficult to enlist all possible reasons giving rise to Judicial Activism which would
be acceptable at all times, the above can be said to constitute some well accepted ones which
compel a judge or a court to be ‘active’ while discharging the judicial functions assigned to it.

PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM

The concept of Public Interest Litigation can be traced back to the system of action popularis of
Roman law which permitted anyone in the society to initiate an action for a public deficit in the
court of law to bring an action of restitution or injunction for the protection of public property or
a religious charitable property.12

In Black's law Dictionary (Sixth Edition), Public Interest is defined as

“Something in which the public, the community at large has something pecuniary interest, or
some interest by which their legal rights or liabilities are affected. It does not mean anything so
narrow as mere curiosity, or as the interest of the particular localities, which may be affected by
the matters in question. Interest shared by the citizens generally in affair of local, State or
national government...”13

11
Upendra Baxi, Judicial Activism: Legal Education and Research in Globalising India (Mainstream, New Delhi,
1996 )
12
Dr UPD Kesari, Administrative Law, p 429 (twenty first edition, 2016)
13
Black Law Dictionary, Sixty Ed. 1891-1991
The first reported case of PIL in India in 1979 focused on the inhuman conditions of prisons and
under trial prisoners. In Hussainara Khatoon v. State of Bihar 14, the PIL was filed by an
advocate on the basis of the news item published in the Indian Express, highlighting the plight of
thousands of under trial prisoners languishing in various jails in Bihar. These proceeding led to
the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic
fundamental right which had been denied to these prisoners. The same set pattern was adopted in
many cases in the years to follow.

Public interest or Social interest litigation has great significance today. It is the power given by
courts through judicial activism to the public. The rule of locus standi that a person alone can
file a petition whose right is infringed has been relaxed by Supreme Court in its recent
judgments. Now the court permits public interest litigation in account of public at large for the
enforcement of constitutional legal rights. The court entertains the petitions which are being filed
by the public spirited persons in the public interest.

Now any citizen can file a petition and approach the court for public cause under:

 Article 32 of the Constitution – directly in Supreme Court

 Article 226 of the Constitution – directly in High Court
 Section 133 of the Criminal Procedure Code (CrPC) – in the court of Magistrate

The Supreme Court in People’s Union for Democratic Rights v. Union of India 15 held that
public interest litigation is different from the traditional adversarial judicial system. The court
said that the PIL has been invented to bring justice to poor and socially or economically
disadvantaged sections of the society. The violations of constitutional or legal rights of such
large number of persons should not go unnoticed.

In Fertilizer Corporation Kamgar Union v. Union of India 16, Justice Krishna Iyer held that
activism through the use of PIL is essential for participative public justice.

India has a written constitution which gives a framework for regulating the state and its citizens
under part III and part IV i.e. Fundamental Rights and Directive Principles of State Policy

14
(1980) S.C.C. 81
15
(1982) 3 S.C.C. 235
16
A.I.R 1981 S.C. 344
respectively. The fundamental rights guaranteed by the constitution are enforceable by the courts
but the social and economic rights mentioned in part IV of the constitution are not enforceable by
the court of law. Hence, the courts have read them into fundamental rights and made them
judicially enforceable. For example – Article 21(right to life) has been extended by the courts to
include right to education, right to clean air, right to free legal aid, right to live with dignity, etc.

In a case, Sunil Batra v. Delhi Administration 17, a prisoner’s letter was treated as a writ
petition. The prisoner alleged in the letter that the head warden had brutally assaulted another
prisoner. The court said that the technicalities cannot stop the court from protecting the civil
liberties of individuals.

However, the Public Interest Litigation should not be abused by anyone 18. It cannot be allowed to
be used for creating nuisance or for obstructing administration of justice.19

JUDICIAL ACTIVISM AND SEPARATION OF POWERS

Although the doctrine of separation of powers has not been recognized under the Constitution in
its absolute rigidity, our Constitution makers carefully defined the functions of the various
organs of the State. The state has three organs, that is, Legislature, Executive and Judiciary. The
function of the legislature is to make laws, the executive has the function to enforce and
implement laws in the state and finally the function of the judiciary is to interpret the laws made
by the legislature. As it is said, power corrupts and absolute power corrupts absolutely. So, this
system of separation of powers was created to make sure that no one organ has all the powers,
which can be misused.

The concept of judicial activism is against the doctrine of separation of power because here
judiciary exercises the function of the legislature and executive.

17
(1978) 4 S.C.C. 409
18
Dattaraj Nathuji Thaware v. State of Maharashtra, A.I.R. 2005 S.C. 540
19
Common Cause (A Regd. Society) v. Union of India A.I.R 2008
In 2007, Supreme Court in Divisional Manager, Aravali Golf v. Chander Hass & Anr 20 held
that judiciary cannot take over the functions of legislative and the executive. Furthermore Justice
A.K. Mathur and Justice Markandey Katju held the following observations:

1. The judges in the name of judicial activism cannot cross their limits and carry out a function
that belongs to another organ of the state.

2. The judges must have the modesty and not be like emperor. There is separation of powers
under the constitution of India and each organ- legislature, executive and judiciary- must
function their own roles and not encroach upon the field of other organs.

3. Judicial activism becomes judicial adventurism.

4. The court must not embarrass administrative authorities and must realise that administrative
authorities have expertise in the field of administration while the court does not.

5. People are there to correct the defect by exercising Article 32 and Article 226 of the
constitution, if the legislature and executive are not performing properly.

6. The remedy is not in the judiciary taking over the legislative and the executive function
because that will only violate the delicate balance of power.

Although the Supreme Court has widened the horizon of its jurisdiction by many recent
judgments, it is still aware of the limits within which it must carry out its given role. In the P
Ramchandran Rao v. State of Karnataka 21, the court held that the primary function of the
Judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in
the field left open and unoccupied by legislation. But they cannot entrench upon in the field of
legislation properly meant for the legislature. It is no difficult to perceive the dividing line
between permissible legislation by judicial directives and enacting a law – the field exclusively
reserved for the legislature.

Judicial activism, at one point of time, was considered necessary to correct the failings of the
legislature and the misdeeds of the executive, but it has now grown into a situation where the
idea of separation of powers which is considered as the basic structure of the constitution is
20
Appeal (civil) 5732 of 2007
21
(2002) 4 S.C.C. 578
being challenged. Sometimes, judicial activism leads to judicial overreach and judicial
adventurism. Instances of judicial overreach or judicial adventurism has negative impacts on the
constitutional core.

There is no external regulation or accountability of the courts towards the general public in India.
The executive remains accountable to the people through the five year election process but
judges exercise self regulation and are insulated from any external influence 22. While it’s a good
thing because it ensures that there is independence of judiciary but it also means that the judges
can act without any fear of public knowledge of their motives. They are accountable to only
themselves and their own sense of morality.

When judiciary takes up the function of legislature or executive it tells the citizens of the country
that the people elected by them for their benefit are unfit or incapable of doing so. It reduces the
trust people pose in the parliament and elected representatives as frequent overreach signals
executive inactivity and incompetency.

There is a thin line between judicial activism and overreach. While judicial activism is
considered positive to supplement the failings of the executive, but the overreach into the
executive’s domain is considered an intrusion into the proper functioning of democracy. Just as
independence of judiciary is part of basic structure, the primacy of legislature in policy making is
also part of basic structure and interference by courts into their domain is not justified.

CONCLUSION

Judicial activism connotes the assertive role played by the judiciary to force the other organs of
government to discharge their assigned constitutional functions towards the people. It has held

22
S.P. Sathe, Judicial Activism in India, (Oxford Publications, 2002)
reinforcing the strength of democracy and reaffirms the faith of people in rule of law. Judicial
activism may have been force upon the judiciary by an insensitive and unresponsive
administration that disregards   the interest of the people and that the nation does not suffer
because of the negligence on the part of the executive and legislature.

There is a thin line variation between judicial activism and judicial over-reach. Crossing over
will result in uncertainty of governance. Judiciary must circumspect while taking the route of
article 142 so that the supremacy of the constitution and separation of powers is not
compromised. Former Justice S. H. Kapadia said Parliament and executive had well-defined
powers under the Constitution and these needed to be respected by the judiciary. “Legality and
legitimacy are important concepts and go hand in hand. If there is excess of judicial overreach,
then the legitimacy of judgments will be obliterated,” he warned.

However at the end we would conclude by stating that judicial activism may be good for
protecting the fundamental rights of the citizens and protecting their interest from the vicious
bureaucrats and politicians. The supreme courts pivotal role in making up for the lethargy of the
legislature and inefficiency of the executive is commendable. But this great power may be
misused by the judges and the doctrine of separation of powers will crash. As observed by
Justice Marakandey Katju and Justice A.K. Mathur, “the judges can enforce a law but should not
create a law and seek to enforce it”.

BIBLIOGRAPHY
PRIMARY SOURCE

FROM BOOKS:
 S.P. Sathe, Judicial Activism in India, (Oxford Publications, 2002)
 Dr UPD Kesari, Administrative Law, (Twenty first edition, 2016)
 M. Laxmikanth, Indian Polity sixth ed. (McGraw Hill Education Private Limited, Chennai,
2020)
 M.P. Jain, outlines of Indian Legal and Constitutional History, sixth edition.

SECONDARY SOURCE

 www.Indiankanoon.org
 www.Lawctopus.com
 www.Jstor.com