Judicial activism

One often wonders!!!
• Is it the courts of India that is doing all the decision
making?
• Are the legislative and executive wings of democracy
silently passing the baton to the judiciary?
• Are the higher court judges in India playing for mass
appeal?

In recent activities, SC has ordered
• Control over automobile,air and noise pollutions,
• Norms from medical post graduation to nursery
admissions,
• wearing of helmets and seat belts
• Action plans to control and prevent the monkey menace ,
• has directed the most complex engineering of interlinking
rivers in India.
• orders banning the pasting of black film on automobile
windows,
• Asking the CBI to report directly to the court,
• In 1993, the Court issued orders on the conduct of military
operations in Hazratbal, Kashmir

BLOOMBERG January 21, 2016
• As India’s politicians bicker, its Supreme
court judges are taking the lead in shaping
policy.
• Proponents view them as an antidote to
India’s gridlock and a check on corrupt
politicians, while detractors see a threat to
democracy and a risk for investors.

BLOOMBERG contd.
• As prime minister, Modi is limited to setting
policies that are then implemented by federal
departments and India’s states.
• To pass laws, his party must get them through
both houses of parliament, where 776 elected
members represent all of India’s 1.3 billion
people.
• India’s 26 Supreme Court judges can review any
law passed by parliament, initiate legal
proceedings and give multiple directives in
cases, that can stay open for decades

History of Judicial Activism
• Arthur Schlesinger, Jr.---1947.
• Fortune Magazine article entitled
“The Supreme Court:”
• Schlesinger grouped the courts into three
categories:
• (1) judicial activists,
• (2) champions of self-restraint, and
• (3) a middle group.

Judicial Activism-Definition
• Black’s Law Dictionary- judicial activism is a
“philosophy of judicial decision-making
whereby judges allow their personal views
about public policy, among other factors, to
guide their decisions.”
• Judicial activism can also be defined as when
a Court takes some legislative power away
from legislators.
• To define broadly, is the assumption of an
active role on the part of the judiciary

• A simple working definition is that judicial
activism occurs when judges fail to apply the
Constitution or laws impartially according to
their original public meaning, regardless of the
outcome, or do not follow binding precedent of
a higher court and instead decide the case based
on personal preference.

THEORIES OF CONCEPT OF JUDICIAL
ACTIVISM
THEORY OF VACUUM
FILLING
• the vacuum is created by the
inactivity, incompetence,
negligence or corruption among
the legislature and the executive.
the judiciary is left with no other
alternative but to expand its
horizons and fill up.
THEORY OF SOCIAL WANT
• When the existing legislations
failed to provide any pathway, it
became incumbent upon the
judiciary to take on itself the
problems of the oppressed and to
find a way to solve them.

-----~ Montesquieu
• There is no liberty where judicial power is not
separated from both legislative and executive
power.
• If judicial and legislative powers are not
separated, power over the life and liberty of
citizens would be arbitrary, because the judge
would also be a legislator.
• If it were not separated from executive power, the
judge would have the strength of an oppressor.

Earl Warren as Chief Justice of US

Brown v. Board of Education(1954)
• The suit called for the school district to reverse its policy of
racial segregation
• The District Court upheld a state law requiring "separate
but equal" segregated facilities for blacks and whites.
• Supreme court with Earl Warren as Chief justice – Key
holding was, “even if segregated black and white schools
were of equal quality in facilities and teachers,
segregation by itself was harmful to black students and
unconstitutional.”
• When Eisenhower was asked what his biggest
mistake was, he angrily replied "the appointment of
... Earl Warren."

History of Judicial Activism in India
• A conservative executive and a progressive
judiciary, or a progressive Parliament and a
conservative judiciary coexisting at the same
point of time, form the basis of judicial
activism or judicial overreach.

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
the final judge to determine the validity of even
a constitutional amendment
Therefore in India, the judiciary mainly the
Supreme Court and High Court‘s have a greater
scope to be active while discharging various
judicial functions

Jawaharlal Nehru, at the inauguration
of the Supreme Court of India on 28th January, 1950
• “No Supreme Court and no judiciary can stand
in judgment over the sovereign will of
Parliament representing the will of the entire
community.”
• No Court, no system of judiciary can function
in the nature of Third House, as a kind of Third
House of correction.
• So it is important that with this limitation the
judiciary should function

Dr. Ambedkar
• “I do not see how five or six gentlemen sitting
in the Federal of Supreme Court examining
laws made by the Legislature and by the dint
of their own individual conscience or their bias
or their prejudice be trusted to determine
which law is good and which law is bad.”

The scope of judicial review
before Indian courts
Firstly, to
ensure fairness
in
administrative
action
Secondly to
protect the
constitutionally
guaranteed
fundamental
rights of
citizens
Thirdly to rule
on questions of
legislative
competence
between the
centre and the
states

Judicial restraint
(popularly known as judicial conservatism.)
• Refers to a belief that judges should limit the
use of their power to strike down laws, or to
declare them unfair or unconstitutional,
unless there is a clear conflict with
the Constitution.
• This concept relies heavily on the uniform
adherence to case law, which encompasses
decisions rendered by other judges on prior,
similar cases.

History of Judicial Activism in India
• “garibi hatao”- abolishing Privy Purse, and
nationalizing the 14 major banks
• A conservative judiciary struck down the
relevant legislation as unconstitutional
• Considered by Mrs. Gandhi to be judicial
overreach

The reaction was at once strong and
unequivocal.
• Senior judges in the above cases were passed
over for appointment to the post of Chief Justice
of India.
• The dissenting judge, Mr A N Ray, fourth in the
line of seniority, was appointed as CJI
• Resulted in the resignation of the three senior
judges (Justices Hegde, Shelat and Grover).
• This marked the starting point of the theory of
judicial activism that actually resulted from the
stand-off between the executive and the
judiciary.

Keshavananda Bharti v/s Govt.of
Kerala(1973)
• For the first time a court held that a
constitutional amendment duly passed by the
legislature was invalid as damaging or destroying
its basic structure.
• This was a gigantic innovative judicial leap
unknown to any legal system.
• The masterstroke was that the judgment could
not be annulled by any amendment to be made
by Parliament because the basic structure
doctrine was vague and amorphous.

• Two years before the proclamation of emergency,
the Apex Court declared that the executive has
no right to fiddle with the constitution and alter
its fundamental characteristics.
• But it could not deflect the emergency declared
by Mrs.Gandhi.
• It was only at the end of it that the Supreme
Court and the Lower courts began to ceaselessly
intervene in executive as well as legislative areas

• The two most prominent figures whose names
are the most inter related with judicial activism
are (Mid-1970S to early 1980s—birth of PILs)
• Just. P. N Bhagwati Just. V.R.Krishna Iyer

Origin of the Public Interest
Litigations
This included
• Modifying the traditional requirements of
locus standi,
• liberalizing the procedure to file writ petitions,
• Creating or expanding fundamental rights,
• Overcoming evidentiary problems,
• Evolving innovative remedies.

Public Interest Litigation
When there is a question of public interest then a
writ petition may be filed by someone even though
he may not be directly involved in that matter.
Thus, the expression Public Interest Litigation
means a legal action initiated in a court of law
for enforcement of public interest.

locus standi
(Latin for ‘place
to stand’)
Means the ability of
a party to
demonstrate to the
court sufficient
connection to and
harm from the law
or action challenged
to support that
party's participation
in the case

Exceptions to locus standi
(Courts have now acknowledged )
• where there has been violation of constitutional or
legal rights of persons who, by reason of their
socially or economically disadvantaged position,
are unable to approach the court for judicial
redress, a member of the public could move the
court for enforcement of such rights of such
persons.
• Courts have begun to recognize that they exist
not merely to vindicate individual rights but also
to vindicate public rights and therefore permit
members of the public to agitate such rights.

Any public spirited citizen can move/approach
the court for the public cause by filing a petition
In the Supreme Court under Article 32 of the Constitution of
India;
In the High Court under Article 226 of the Indian Constitution
In the Court of Magistrate under Section 133 of the Code of
Criminal procedure

• “Judges have neither the power of sword nor
of purse. Yet Judges have now become
roaming knights–errant on white chargers
tilting at windmills of injustice to defend the
honour of the Dame of Justice.”--Hamilton

THE THREE PHASES OF PIL
First phase —1970s
1980s—
the PIL cases were
generally filed by
public-spirited persons
(lawyers, journalists,
social activists or
academics).
Most of the cases
related to the rights of
disadvantaged
sections of society
Second Phase- 1990s
Filing of PIL cases
became more
institutionalized ;
several specialized
NGOs and lawyers
started bringing PIL to
the courts on a much
regular basis.
The breadth of issues
which were raised in
PIL also expanded
Third Phase- 21st
century—
Anyone could file a PIL
for almost anything.
Changes in judicial
attitude at the cost of
the sympathetic gesture
The response of the
judiciary became much
bolder and
unconventional.

“Suo Moto cognizance”
"take notice of the fact on its own "
• This practice of initiating proceedings on the basis
of letters or reports has been streamlined and
has come to be described as ‘epistolary
jurisdiction’
• It is a special power of High Courts and the
Supreme court of India to initiate a hearing by
itself without anybody filing any appeal or writ
petition or PIL.
• When court feels that a matter requires serious
and immediate legal intervention, it acts
“Suo Motu”.

Judicial Activism and PIL:
• Equating PIL with judicial activism is a
misconception
• It is equated with PIL mainly because it is the
most convenient vehicle for bringing public
grievances before courts and because the
courts orders in PILs are far-reaching and
some times sensational.

Public Interest Litigations
• Since filed straightaway at the level of the
Supreme Court or the High Court, the parties do
not have a meaningful opportunity to present
evidence on record before the start of the court
proceeding.
• To overcome this problem, our Courts have
developed the practice of appointing ‘fact-finding
commissions’ on a case by case basis.
• In matters involving complex legal considerations,
the Courts also seek the services of senior
counsels by appointing them as amicus curiae on
a case-by-case basis.

The Indian Supreme Court
• Has evolved from a positive Court into an activist
Court over the last Sixty five years and more
• This transformation in the role of the Court has
synchronized with the political change that came
about
• The increased role of the Court was legitimized by
the increasing pluralization of the Indian polity,
the need to have a counter-majoritarian check on
democracy, and relative erosion of the high
profile of the political leadership

Protector of the constitution?
• Substantive contents of a constitution at a
particular point of time reflect the will of its
framers.
• It is not necessary that the intent of the framers
corresponds to the will of the majority of the
population at any given time.
• This power of amendment by the legislature is
not unlimited
• Idea of ‘judicial review’ designates the higher
judiciary as the protector of the constitution.

• Judicial activism believes that judges assume
a role as independent policy makers or
independent "trustees" on behalf of society
that goes beyond their traditional role as
interpreters of the Constitution and laws.

Reasons which compel a court or a judge to be active
• Near Collapse of responsible government.
• Pressure on judiciary to step in aid.
• Judicial enthusiasm to participate in social reform
and change.
• Legislative vacuum left open.
• The constitutional Authority to make final
declaration as to validity of a law.
• Role of Judiciary as guardian of fundamental
rights.
• Public confidence in the judiciary.

Measurement of activism
• I.Reaction of the Legislature: If the legislature,
ndertakes measures to overturn the decision,
then the decision is regarded to possess a higher
degree of activism
• II.Administrative or Executive Response: The
greater the compliance by executive, the less is
the degree of activism
• III.Reaction by the Judiciary: The greater the
affirmation of the decision in subsequent cases,
the less is the extent of activism.
• IV.Vox Populi: A high level of disapproval by civil
society will signify a high activist quotient

Dwivedi J.
• ‘‘The court is not chosen by the people and is
not responsible to them in the sense in which
the House of People is.”
• However, it will win for itself a permanent place
in the hearts of the people and augment its moral
authority if it can shift the focus of judicial
review from the numerical concept of minority
protection to the humanitarian concept of the
protection of the weaker section of the people.

Milestones of Public Interest
Litigation in India

Article 21 and Judicial Activism
(PERSONAL LIBERTY)
Article 21 states: “No person shall be deprived of his life or
personal liberty except according to procedure established by law
• In A.K. Gopalan v. State of Madras(1950), the
Indian Supreme Court rejected the argument
that to deprive a person of his life or liberty
not only the procedure prescribed by law for
doing so must be followed but also that such
procedure must be fair, reasonable and just..
• Maneka Gandhi v. Union of India(1977): A
Watershed in Indian Judicial Activism:

Hussainara Khatoon v. State of Bihar
• A series of articles published in the Indian Express
which exposed the plight of under trial prisoners
in the state of Bihar
• Many of them had been in jail for longer periods
than the maximum permissible sentences for the
offences they had been charged with.
• The Supreme Court accepted the locus standi of
the advocate to maintain the writ petition, Gave
directions through which
the‘right to speedy trial’ was highlighted

In Parmanand Katara v. Union of India,
• The Court held that no medical authority could
refuse to provide immediate medical attention
to a patient in need in an emergency case;
• The public interest litigation had arisen
because many hospitals were refusing to
admit patients in medico-legal cases.
• Hence, the Supreme Court ruled that access
to healthcare, is a justifiable right.

Journalist, Mrs. Sheela Barse
• Took up the plight of women prisoners who were
confined in the police jails in the city of Bombay.
• The Court took cognizance of the matter and
directions were issued to the Director of College
of Social Work, Bombay.
• Court issued directions such as the detention of
female prisoners only in designated female lock-
ups guarded by female constables and that
accused females could be interrogated only in
the presence of a female police official.

Sunil Batra v. Delhi Administration,
• Public interest litigation acquired a new dimension – namely
that of ‘epistolary jurisdiction’
• It was initiated by a letter that was written by a prisoner
lodged in jail to a Judge of the Supreme Court. The prisoner
complained of a brutal assault committed by a Head Warden
on another prisoner.
• The Court treated that letter as a writ petition, while issuing
various directions, opined that:
“…technicalities and legal niceties are no impediment to the
court entertaining even an informal communication as a
proceeding for habeas corpus if the basic facts are found”.

S.P.Gupta v. Union of India,
• The judgment recognized the locus standi of
bar associations to file writs by way of public
interest litigation.
• In this particular case, it was accepted that
they had a legitimate interest in questioning
the executive’s policy of arbitrarily
transferring High Court judges, which
threatened the independence of the
judiciary.

Aruna Shanbaug Vs. Union of India
• Aruna Shanbaug, a nurse in 1973, while working at a
Hospital at Mumbai, was sexually assaulted and has
been in a permanent vegetative state since the assault.
• In 2011, after she had been in this status for 37 years,
the Supreme Court of India heard the petition to the
plea for euthanasia filed by a social activist.
• The Court turned down the petition, but in its
landmark judgment it allowed passive euthanasia i.e.
withdrawal of life support to a person in permanently
vegetative state, subject to approval by the High
Court.

M C Mehta-tireless campaigner,
His petitions have resulted in
• Strict liability for the leak of Oleum gas from a
factory in New Delhi,
• Directions to check pollution in and around
the Ganges river,
• Relocation of hazardous industries from the
municipal limits of Delhi,
• Directions to state agencies to check pollution
in the vicinity of the Taj Mahal.

• A prominent decision was made in a petition
that raised the problem of extensive vehicular
air pollution in Delhi.
• The Supreme Court decided to make a
decisive intervention in this matter and
ordered government-run buses to shift to the
use of Compressed Natural Gas (CNG),
• This was followed some time later by another
order that required privately-run
‘autorickshaws’ to shift to the use of CNG.

Vishaka v. State of Rajasthan.
• The petition in that case originated from the
gang-rape of a grassroots social worker.
• In that opinion, the Court invoked the text of
the Convention for the Elimination of all forms
of Discrimination Against Women (CEDAW)
and framed guidelines for establishing
redressal mechanisms to tackle sexual
harassment of women at workplaces.

Sun Film Verdict- Irrational
exuberance

Sun film case
• The Supreme Court in April 2012 had
prohibited the use of tinted glass or sun films
on the windshields and windows that
restricted the vision beyond permissible limit
fixed under the Motor Vehicles Act 1989.
• The Supreme Court passed the order after
tinted vehicles were used by criminals to
escape after committing crimes such as
sexual assaults, robberies, and abductions.

• Now, traffic police have come out with a
vengeance in enforcing this archaic rule-? to
make a quick buck on the side. .
• Would anyone advocate transparency in
bedroom windows because crimes happen
therein?
• The ubiquitous nature of the law could be a
case of ‘monkey see, monkey do’.
• This might be a good enough time to revisit
the law. Who would bell the cat?

Legislature infringement
Article 212 of the Constitution states that Courts are not
to inquire into any proceedings of the legislature
• In the Jharkhand Legislative Assembly
case(1998), the Supreme Court ordered the
Assembly to conduct a Motion of Confidence
and ordered the Speaker to conduct
proceedings according to a prescribed agenda
and not to entertain any other business.

judgment of the Patna High Court
Jan Chaukidar v Union of India(2004) — upheld
by the Supreme Court
• All those in lawful police or judicial custody,
other than those held in preventive
detention, will forfeit their right to stand for
election.
• Since Section 62(5) of the Act prevents those
in lawful custody from voting, the reasoning
goes, those in such custody are not qualified
for membership of legislative bodies.

Arunchal Pradesh verdict: SC quashes Governor order,
restores sacked CM july-2016
• Censuring the Governor for “humiliating the
elected government of the day”,
• The Supreme Court restored the Congress
government in Arunachal Pradesh,
• Declared as “unconstitutional” all decisions of
Governor Jyoti Prasad Rajkhowa that had first led
to imposition of President’s rule in the state and
later formation of a new government led by the
Congress breakaway faction.

National anthem
• Supreme Court ruled that all cinema halls shall
play the national anthem before a film starts and
that all present should stand up!
• The order appears “per incuriam” (an order that
is passed in disregard of a binding authority),”
• Is the acid test of patriotism and nationalism only
that we stand up (when national anthem is
played)?
• What about handicapped persons who cannot
stand up but still have abundant patriotism at
heart?

Contradictory verdict
• In the Emmanuel case, the SC ordered a school in
Kerala to take back three children it had expelled
for not singing the national anthem.
• The children didn’t sing the anthem because of
their conviction that their religion did not permit
them to join any rituals except in their prayers to
Jehovah.
• The court had ruled that there is no legal
provision that obliges anyone to sing the anthem.

Supreme Court: Indian Temples Can't
Stop Women From Entering
• The Shani Shingnapur case - Mumbai High Court,
with the plaintiffs alleging restriction was in
violation of the fundamental rights of women.
The Temple Trust in Ahmednagar was ordered to
open its inner sanctum to women following a
court order from the High Court.
• Sabarimala case is not only trickier, but the court
could also find it hard to dodge the central
constitutional questions.

‘Jellikettu’ case –SC Sidelined

SC Bench strikes down NJAC Act as
‘unconstitutional and void’
After receiving Presidential assent on Dec. 31, 2014, the
collegium system of appointing judges to the SC and
high courts was replaced by a new body called the
National Judicial Appointments Commission.
The Bench in a majority of 4:1 rejected the NJAC Act
and the Constitutional Amendment as “unconstitutional
and void.” It held that the collegium system, as it existed
before the NJAC, would again become “operative.”

It is a flawed judgment ignoring the unanimous will of the Parliament,
half the State Legislatures and the will of the people for transparency
in judicial appointments: Attorney General Mukul Rohatgi
NJAC was completely supported by Rajya Sabha and Lok Sabha; it had
100 per cent support of the people: Law Minister D.V. Sadananda
Gowda
This is the tyranny of the unelected over the elected: KTS Tulsi
• Good sign that the SC has called for further
discussions on Collegium system. It shows that it
has accepted there are defects in the system:
Senior Advocate Gopal Subramanium

The Supreme Court took away, the constitutionally
bestowed power to the president of India to appoint
judges.
This shows the working of
judicial activism in the
territory as nowhere in the
world has the power to
select and appoint judges
conferred on the judges
themselves.

No Liquor Shops On State, National
Highways From April 1, Supreme Court Orders
• under the Constitution, the power to grant
liquor licenses rests with the states
(under List II of Seventh schedule)
• Directions to the state governments not to
grant licenses for alcohol shops appear to
encroach directly upon the legislative
function, and therefore – prima facie – fall
outside the “jurisdiction” of the Court.

Harman Singh Sidhu, the man behind the PIL that resulted in the
recent Supreme Court judgement banning liquor sales on all state and
national highways

• The issue is whether the Court is acting within
its jurisdiction by taking over the function of
the state legislatures to regulate liquor
licenses, and on that question, the judgment
remains silent
• There was no fundamental right under Article
19(1)(g) to trade in alcohol: while the right
to trade in alcohol might not be a
fundamental right, surely the right
to consume alcohol – as an aspect of personal
choice – is a fundamental right (Article 21).

Sidhu so dismayed?
• After all, it was him who demanded the ban.
Surely, he must have known what he was
getting into?
• Sidhu says this was collateral damage — he
never wanted to see establishments being
shut, and he does not support prohibition
either. All he wanted was to stop people from
drinking and driving.

• “There are hundreds of hotels located on the
Mumbai-Goa Highway or in any other
highway.
• These hotels proliferated due to the
incentives offered by the state government to
promote tourism.
• If these hotels are closed down, then lakhs
and lakhs of people will be rendered jobless

Supreme Court explains why its highway liquor
shop verdict is not judicial overreach
• It was the Centre’s idea
• The expert body agreed
• The Centre continued to push its idea
• Parliament indicated zero tolerance for
drunken driving
• Judicial policymaking?

Polycentric Problems(Lon Fuller)
• Liquor ban is a problem like a spider web with
a complex set of interdependant relationships.
• Judiciary is ill suited to resolve such issues.
• It is a classic case of judicial policy making and
has overeached the executive without any
resources for implementing it without
overpulling the web strands in some direction
or other nor the expertise to handle such a
situation

Problems of PIL
Misuse and
overuse
Political
benefit:
Personal
Gain:
Symbolic
justice:
Easy access
to justice
Disturbing the
constitutional
balance of
power

Overuse of PIL
• Misuse of PIL in India, has reached to such a
stage where it has started undermining the very
purpose for which PIL was introduced
• PIL is now being used for frivolous issues also.
• ‘‘The overuse of PIL might dilute the original
commitment to use this remedy only for enforcing
human rights of the victimized and the
disadvantaged groups.
• In other words, the dark side is slowly moving to
overshadow the bright side of the PIL project.

Symbolic justice
• judiciary is often unable to ensure that its
guidelines or directions in PIL cases are
complied with, for instance, regarding sexual
harassment at workplace (Vishaka case) or the
procedure of arrest by police (D.K. Basu case)

Bandh or Hartal
• In 1997, the Kerala High Court in a landmark
judgment declared bandhs unconstitutional and
illegal, a view that the Supreme Court upheld
• But the High Court has now said that it cannot
similarly ban hartals as a way of protest in the
absence of an enabling law
• After the Kerala High Court banned bandh, it
resurfaced in the present form of hartal, which is
nothing but a bandh in disguise. Be it bandh or
hartal, it means total paralysis of normal life and
industrial activities.

Easy access to justice –
a licence to file frivolous petitions
• It is the solemn duty of the Court to protect the
society from the so called protectors of the
society.
• The Court should try to ascertain the bona fides
of the petitioner and find out whether he is really
a public spirited person or he has approached the
Court to settle his ulterior score through the legal
process
• No litigant has a right to unlimited drought on
the Court time and public money in order to get
his affairs settled in the manner as he wishes.

Objections to the doctrine of ‘judicial
review’
Judiciary being an unelected body is
not accountable to the people
through any institutional mechanism.
Allowing the judiciary to rule on the validity of the
enactments passed by a popularly elected legislature
amounts to a violation of the idea of ‘separation of
powers’
Judges using their personal discretion to
grant remedies in areas in which they have
no expertise

“Public cause litigation”.
• Over the years, however, the unexceptional social action dimension of
the PIL has been diluted, converted, and eclipsed by another type of
“public cause litigation”.
• In this type of legal process, the court’s intervention is not sought for
enforcing the rights of the disadvantaged but to simply correct the
actions or omissions of public officials, government departments or
other public bodies
• India has now become accustomed to seeing the Supreme
Court correcting government action in trifling matters
which should not be its concern.

Disturbing the constitutional balance of power
• Although the Indian Constitution does not
follow any strict separation of powers, it still
embodies the doctrine of checks and
balances, which even the judiciary should
respect.
• However, the judiciary on several occasions
did not exercise self-restraint and moved on
to legislate, settle policy questions, take over
governance, or monitor executive agencies.

Today, inconvenient decisions are left by the
executive for the courts to take. Extensive
use of judicial powers in the administrative
field may well, in the long-run, blunt the
judicial powers themselves
• The task of the court should
be to compel the authorities
to act and to pass appropriate
executive orders rather than
substitute judicial orders for
administrative ones.
There is a real
danger that the
activism of the
courts may
aggravate the
activism of the
authorities.

Justice Markandey Katju
(observed in Mattoo Priyadarshini’s case)
• “Under the Constitution, the legislature, the
executive and the judiciary have their own
broad spheres of operation.
• It is, important that these three organs of the
state do not encroach upon the domain of
another and confine themselves to their own
• The judiciary must exercise self-restraint and
eschew the temptation to act as a super
legislature

Inefficient use of limited judicial
resources:
• The number of per capita judges in India is much
lower than many other countries
• Indian Supreme Court as well as High Courts is
facing a huge backlog of cases,
• It is puzzling why the courts have not done
enough to stop non-genuine PIL cases.
• By allowing frivolous PIL plaintiffs to waste the
time and energy of the courts, the judiciary might
be violating the right to speedy trial .

Judicial populism
Judges are human beings, they can admit PIL cases
on account of raising an issue that is (or might
become) popular in the society.
Conversely, the desire to become people’s judges in
a democracy should not hinder admitting PIL
cases which involve an important public interest
but are potentially unpopular
Judiciary, recently it has been grabbing too much
public attention.

JUDICIAL OVERREACH
(the point at which Judicial Activism‘ losses its legitimacy)
Any further judicial exercise of power beyond that
point would tantamount to Judicial Overreach‘
Judicial
Restraint
Judicial
Activism
Judicial
Overreach

Judicial overreach(? judicial tyranny )
• High handedness of the exercise of judicial power
in the domains not constitutionally earmarked for
the judiciary.
• Lord Acton – “All power corrupts and absolute
power corrupts absolutely.”
• Creating a law and then enforcing it by wrong and
unconstitutional exercise of its power is clearly
unwarranted under the constitutional scheme.
• Running the nation is something not expected
out of the judiciary?

there is a need to identify the thin line dividing
judicial activism and judicial overreach,
• Thus, Judges while exercising their power
should not forget the essence of separation of
powers( Judiciary, executive, legislative)
independently enshrined in the constitution
and while flexing muscles should maintain the
spirit of activism and not over-reach
Man Mohan Singh

Judicial
overreach
It has led to the supreme court having less
time for it’s mandated purpose of being the
defender of the constitution and the arbiter
of disputes between centre and states.
Development has been delayed
between the contrasting judgments
and legislations of the judiciary and
legislature respectively

Reasons for judicial overreach
since all power grows by what it feeds on,
judicial power also tends to grow by
accretion
indifference or ineptitude of Constitutional bodies.
Judicial overreach’ then is the direct result of
legislative as well as executive neglect or inaction:
Poor and dilatory performance, not only in the
making of laws, but also in their implementation

Judiciary- least transparent and least
accountable institution in India
• “judicial activism can be a medicine not a
daily bread “
• “A judge may be one who would like to sing
the song of liberty and glorify the same
abandoning passivity, but his solemn pledge
has to remain embedded to Constitution and
the laws”- a judgment by the Bench of Justices
~Dipak Misra and S.K. Singh

Immunity and protection for judges

Lack of Accountability and Transparency
Appointment of judges is done behind close
doors in a collegium system
• Removal of judges require cumbersome procedure
The Power of Contempt of Court has stifled even
an honest evaluation and criticism of Judiciary
• After the 1991 SC judgement , no criminal investigations can
be initiated against a judge of superior courts without the
permission of the CJI

Protection to the judges of the
superior courts
• Errant judges who have become insensitive
not only to their duties and responsibilities
but also to public opinion, doggedly clinging
on to their posts and offices even when faced
with impeachment motion.
• Nowhere in the world has the power to
select and appoint judges conferred on the
judges themselves.

CUMBERSOME IMPEACHMENT
PROCEEDINGS:
• either 100 members of the Lower House or 50 members
of the Upper House have to submit a signed complaint that
is then investigated by a three member committee
comprising two Judges and a Jurist; if approved, the mater
is debated in both houses and must be completed within a
single session or else the whole process must begin again in
a subsequent session.
• Since independence, only three Judges have even faced
impeachment, all three for mis-appropriating, public funds
or accumulating dis appropriate wealth of those three, in
one case the impeachment motion failed and in the other
two , the Judges resigned before the motion could go
through

Corruption in courts
A 2007 survey
• 59% of respondents paid bribes to lawyers,5% to
judges,30% to court officials for speedy and
favorable judgments.
• Higher court judges are selected from the ranks
of lower court judges and lawyers, there is always
a possibility of corrupt judges making it to higher
courts
• Once judges have been appointed to higher
courts, they can use their expansive ”contempt of
court” powers to suppress allegations of
corruption

Former Judge of Sup. Court
Justice Markandey Katju
• 50% of the Higher Judiciary consisting of
Supreme Court and High Court Judges are
corrupt.
• Indian Democracy is in danger; when 867
Judges, who have never learned to obey the
law are given THE RIGHT TO COMMAND.
• To make India corruption free: Prosecute and
jail corrupt 867 Judges:

• levelling corruption charges against 20 sitting
and retired judges of the SC and HC

Supreme Court Justice Ruma Pal slammed the higher
judiciary for what she called the seven sins
• Blind eye- to the injudicious conduct of a colleague
• Hypocrisy – the complete distortion of the norm of judicial
independence
• Secrecy – the fact that no aspect of judicial conduct including the
appointment of judges to the High and Supreme Court is transparent
• Plagiarism and prolixity – meaning that very often SC judges lift whole
passages from earlier decisions by their predecessors and do not
acknowledge this – and use long-winded, verbose language
• Self Arrogance – wherein the higher judiciary has claimed crass
superiority and independence to mask their own indiscipline and
transgression of norms and procedures
• Professional arrogance – whereby judges do not do their homework
and arrive at decisions of grave importance ignoring precedent or
judicial principle
• Nepotism – wherein favors are sought and dispensed by some judges
for gratification of varying manner

• Former law minister Shanti Bhushan created a
sensation in the Supreme Court when he moved
an application accusing eight former Chief
Justices of India of "corruption", and dared the
court to send him to jail for committing
"contempt of court".
• Bhushan put their names in a sealed cover and
submitted it to the Supreme Court and virtually
dared it to open it and read out the contents.
• "It is a common perception that whenever such
efforts are made by anyone, the judiciary tries to
target him by the use of the power to contempt.

Reasons for lack of judicial accountability
The misuse
and abuse
of the
power to
punish
persons
committing
contempt
of court
Varied
activities and
diversion of
attention of
Judges to
non-judicial
functions/act
ivities
Non-
existence of
an effective
disciplinary
mechanism
to identify
and take
action
against the
errant
Judges

Pranab
Mukherjee,President
• He acknowledged that “for the enforcement of
fundamental rights, the Supreme Court, through
judicial innovation and activism, has expanded
the common law principle of ‘locus standi’”.
• He also said however that, “Each organ of our
democracy must function within its own sphere
and must not take over what is assigned to the
others…Judicial activism should not lead to the
dilution of separation of powers, which is a
constitutional scheme”.

Arun Jaitely-Fin. Minister
• Went further and said that “step by step, brick by
brick, the edifice of India’s legislature is being
destroyed”.
• whether the courts, and especially the Supreme
Court, wouldn’t serve the country better by
processing outstanding cases instead of
pandering to the whims of a veteran campaigner
with an unnecessary order that will be hard to
implement and could cause social problems.

Surya Deva- associate professor at City University
of Hong Kong’s law school
• India’s Supreme Court arguably "the most
powerful court in the world." Judges can make
laws, monitor implementation and resolve
disputes, he said.
• "There is too much concentration of power in
judiciary because they are trying to do everything
together. “.
• A Pew Research Center poll last year showed that
more people had confidence in the national
government than the courts, a reversal from
2014.

‘Unique’ Power
• "This concept is unique to the Supreme Court of
India only and perhaps no other Court in the
world has been exercising this extraordinary
jurisdiction,”
• Every Supreme Court decision poses a threat to
some companies and opportunities for others,
They can create uncertainty in the investment
climate if rulings are made abruptly without
detailed explanations and reasonable timeframes
for implementation.

Need for activism
Check majority passion!!!
• There should be an increase in the powers of a
branch of government which is not directly
subject to the electorate, so that the majority
cannot dominate or oppress any particular
minority through its elective powers.
• Others have proposed that judicial activism is
most appropriate when it restrains the tendency
of democratic majorities to act out of passion and
prejudice rather than after reasoned deliberation.

objections against judicial activism
• Executive agencies are unfairly burdened by
the costs associated with these positive
obligations.
• This criticism mirrors the familiar philosophy
of ‘judicial restraint’ when it comes to
constitutional adjudication.
• Expansion of justiciability to include rights
that are difficult to enforce takes away the
credibility of the judiciary in the long-run.

When a judge puts
• Policy considerations above the requirements
of law,
• Bends the text of the Constitution or laws to
comport with his or her own sensibilities,
• Angles for particular results in a case,
that judge has stepped outside the proper
constitutional role of policing the structural
limits on government and neutrally
interpreting the laws and the Constitution.

• It may be concluded that
although there are several
drawbacks to judicial
activism, the benefits can’t
be ignored.
• Judicial activism is a
necessary evil which has
many side effects but still it
is necessary for the people
who may not be able to
knock the doors of the court
and justice continues to be
distant moon for them.

Conclusion
• When Judges start thinking they can solve all
the problems in society and start performing
legislative and executive functions ,all kinds
of problems are bound to arise.
• Judges can no doubt intervene in some
extreme cases, but otherwise they neither
have the expertise nor resources to solve
major problems in society.

Conclusion
When Judges start
thinking they can solve
all the problems in
society and start
performing legislative
and executive functions
,all kinds of problems
are bound to arise.
Judges can no doubt
intervene in some
extreme cases, but
otherwise they neither
have the expertise nor
resources to solve
major problems in
society.

Judicial activism

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