Saturday, October 22, 2011


In recent times we have been hearing about the various important orders that have been passed by the Supreme Court. These orders are a kind of law, as they are abiding on everyone. This attitude of the judiciary can be looked at just by glimpsing through the newspapers of the last few years. With the increasing in technology, the active nature of the court is increasing. The constitution itself provides for independence of judiciary. Removal of a judge is a very long and complicated process.

The active nature of the judiciary is important because the progress of the society is dependant upon the proper application of law to its needs and since society today realises more than ever before its rights and obligations, the judiciary has to mould and shape the law to deal with such rights and obligations. Another reason for judicial activism is that the legislature is not best suited for the role of adopting the law to the necessities of time, for, the legislative process is generally very slow and the legislatures are often divided by the politics, slowed down by periodic elections and overburdened with innumerable legislative process.

This research paper is an attempt to look into these and various other reasons for the increasing active nature of the courts. The basic structure doctrine is one of the important doctrines that has been developed by the court to keep a check on the legislature. It has been tried in the constitution that there should be a balance of power among all the organs of the government. But the truth is that “an absolute” balance of powers between different organs is an impractical thing and in practice the final say should be given to one of them. Although the concept of separation of power is applied in India, but a lot of violations of the rule are committed, which creates problems between the judiciary and the legislature.

It is not that our courts have always been practicing such a high level of judicial activism. With the commencement of the constitution the courts started as technocrat court. It tried to uphold all the actions that were taken by the government. This was the exercise of judicial self restraint by the court. But with the problems coming up in the administration, the courts started to adopt the activist approach. However, around 1980 and after the Supreme Court has started to exercise self-restraint once more. This restraint comes up in respect to basic structure of the constitution.

What Is Judicial Activism?
“Judicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern.”

The government is divided into three wings. It consists of legislature, executive and the judiciary. All the three wings have separate functions. The legislature makes the laws, executive enforces those laws and the judiciary solves the disputes related to breach of that law. This was what the original conception of the function of the judiciary. However, with the rapid changes that take place in the society, it is not possible for the legislature to foresee every possible situation that may arise in the future. In such a case the judiciary steps in and it interprets the law in such a manner as to apply the existing law to the new situation that has arisen. The judiciary uses its creativity to solve such problems and bridges the gap between the law and the social condition. This creativity of judiciary is called as judicial activism.[5] The concept of judicial activism is a branch of judicial review. Therefore, at first the researcher would like to discuss about judicial review.

The concept of judicial review originated in United States in the case of Marbury v. Madison, Chief Justice Marshal said that in case a law or a statute conflicts with the constitution, then it is up to the court to decide which one is to be followed. It is said to be one of the essential duties of the court. On the other hand the situation in India is different, the Constitution itself provides for judicial review. The scope of judiciary is basically extended to three areas; (i) judicial review of legislative action, (ii) Judicial review of executive or administrative action, (iii) judicial review of judicial action. Thus we see that judicial institution not only has to deal with the issues of resolving the inter-se disputes but it is also suppose to act “as a balancing mechanism between the conflicting pulls and pressures operating in a society.” Judicial review acts as an important mechanism for testing the validity and constitutionality of the actions of the legislature and executive. Judicial review has been exercised in India to a large extent in different areas.

The first area where the concept of judicial review was exercised was in relation to property areas. There was a kind of tussle between the legislature and the judiciary. The judiciary was trying to protect the landlords from the various provisions in the constitution and the legislature on the other hand was amending the constitution, to nullify the effect of the judicial decisions. After that the focus of the judiciary moved from property rights to protecting the civil rights. However, this no longer remained judicial review, but now it had taken the shape of judicial activism.

The judiciary not only interprets the law but it has started making laws in cases where, there is no legislation available on that issue. In M.C. Mehta v. Union of India, the Supreme Court introduced the concept of absolute liability. This is another example of judicial activism. However, if we go back in the history and look at the Austin’s definition of law, then we might have to look into the legitimacy of this concept of judicial activism. According to Austin law is the command of the sovereign. This means that only the law made by the legislature which is the sovereign in Indian context. The function of the court in this view was to interpret the pre-existing law. This maybe the theory but in practical this was not followed in totality, even in Britain, where it ahs been a notion that a judge cannot make law; the court has showed its activism through the judgements in the cases like Rylands v. Fletcher andDonoghue v. Stevenson.

The above-mentioned cases talks about activism of the Court in cases where there was no was present so the court laid down the law. However, another area of judicial activism, which is a kind of conflict with the legislature, is the cases involving constitutionality of legislative orders. The important question that needs to be asked is, whether a court is competent to strike down a law made by the legislature. Can a court declare a law passed by the legislature as unconstitutional? Now, as said earlier that judiciary and legislature both form a part of the state so for the progress it is necessary that both of them work in consonance. The need of this power given to the court is not to make it supreme, but the checks kept by court on the actions of the legislature and executive and vice versa, facilitates in the better working of the country.

The Emergency and After.
The attitude of the judiciary underwent a transformation, after the emergency. The court did this with respect to Art.21. In the original form the Art. 21 talks about only the right to life. However, it was after the emergency that the courts stated to look at it in a broader manner. In Maneka Gandhi v. Union of India, the court laid down a seminal rule of constitutional interpretation. It said that there was a greater need to look at the meaning of the words in the constitution. The words should not be followed just in their textual form. In this case the right to travel abroad was read as a fundamental right under Art.21.

Thereafter, Art.21 was used by the court in various cases for the purpose of providing basic human rights to the people. The court showed its active nature by interpreting the above said Article in a broad manner. The right to life was equated with right to privacy, right to development, right to education and various other rights were also included in it. The reason for the imposition of emergency was a judgment by the Allahabad High Court. The court in this case declared the election of Mrs. Gandhi as Prime Minister, unconstitutional. Although the Supreme Court admitted the appeal by Mrs. Gandhi, still the emergency was declared in the country. Along with the emergency, there was an amendment to the Constitution..According to this amendment that only a parliamentary committee could look into the validity of the election of Prime Minister and the Speaker.

There is a change in the way judicial activism was exercised after the emergency period. In this period the judicial activism was inspired by the philosophy of constitutional interpretation. It looked at the constitution not as a set of rules, but as principles of constitutional governance. Thereafter, the court looked at the wording of Art.21 in a different manner. The Article mentions that every person’s personal liberty and life should be protected. However, an exception has been laid down; it says that all these rights are subjected to the procedure established by law. However, the court said that the procedure established should be just, fair and reasonable. Therefore, the Supreme Court held the right to speedy trial as a fundamental right under Art.21. The court interpreted in such a manner because it considered it as a constitutional duty to enforce this right of accused person. In this series the Supreme Court has also provided various other rights to an accused or a prisoner like; free legal assistance in case he is an indigent, the right against solitary confinement, right against handcuffing, right against public hanging, right against custodial violence.

Judicial Activism and Constitutional Amendments: Courts Safeguarding the Fundamental Rights
The provision to amend a constitution is a necessity and the Indian Constitution provides for it. The power to amend the constitution lies with the legislature and to do so it has to be passed by a majority of two-third of the strength. The need for amending the constitution is that the society we live in is ever changing and the constitution should also change according to the needs of the society. However, the legislature has used this power to amend the constitution as a way to achieve its end. The Indian judiciary from the beginning of constitution had to deal with many challenges that were made to the amendments made by the parliament.

Art. 13 say that any law which violates the fundamental right of the citizen would be void. The word law has been defined in Art. 13 (3) (b). There are various examples are given as to what constitutes law under this Article, and constitutional amendments have not been included in it as a law. It was challenged right after the commencement of the constitution. In the case of Shankari Prasad v. Union of India, the Supreme Court said that the word ‘law’ does not include the constitutional amendments. This was a positivist approach by the court, giving the power to the legislature to amend the constitution affecting the fundamental rights of the people. This attitude of the court continued until Justice Hidayatullah pointed out in the Sajjan Singh v. State of Rajastha, expressed that the fundamental rights should not be left at the discretion of the legislature.

The Court changed its attitude in I.C Golaknath v. State of Punjab[35], the court putting a restriction on the power of the court held that the constitutional amendment would also be included under Art. 13 (3)(b). This is an example of judicial activism exercised by the court. This judgement took away the fundamental rights of the people from the hands of the majority. This was a rejection of the absolute power of the legislature with respect to the constitution and especially fundamental rights. This judgment was rejection of the view that judiciary was only concerned with the interpretation of the constitution and not the consequences of such interpretation.[36] The parliament reacted to this judgment by introducing the Twenty-Fourth amendment to the constitution. By this amendment the parliament restored its power which it had before Golaknath.

This amendment along with two other amendments was challenged in the case of Kesavananda Bharti v.State of Kerala, it was contented in this case that the legislature has unlimited power to amend the constitution. The thirteen judge bench in this case overruled Golaknath, but it said that the parliament should not have the unlimited power to amend the constitution. It is important to look at the basic structure doctrine for a better understanding of the case. Justice Khanna for the first time used this term in this case. The basic structure of the constitution implies that there are certain parts of the constitution which are so essential to the constitution that they should not be amended. It was said that although the parliament has the power to amend the constitution, certain provisions should be left the way they are. The fundamental rights are also a basic feature of the constitution, but not all could be said to be the basic feature. Only the fundamental rights which could be said to be the basic human rights are the part of the basic structure.

As said earlier that the parliament had power to amend all the parts of the constitution, the only thing being that they should not amend the basic structure of the constitution. The court also said that, what exactly basic structure is would be decided by the court from time to time. This impliedly said that the court would have the final say in the maters related to amendment. Now in the case of Golaknath v.State of Punjab, the court laced absolute restriction on the power of the parliament to amend the constitution especially with respect to fundamental rights. In Kesavananda, the court removed this absolute restriction, but it placed a judicial scrutiny on these amendments. Both the cases are an example of judicial activism, but there is a difference in the kind of activism they exercised.

It is important to note that how the judiciary has placed a check on the power of parliament. This has been looked by many as the court showing its supremacy over the parliament. Now the parliament also reacts to such judgments. As seen earlier the parliament passed the Twenty-Fourth amendment to nullify the decision of Golaknath. Similarly, after Kesavananda, the parliament reacted by supersession of the judges. Three judges were superseded and Justice Ray was made the Chief Justice of the country. The parliament also made an attempt to bury the basic structure doctrine. It attempted it by the Forty-Second amendment to the constitution.

This was challenged in Minerva Mills v. Union of India and it was unanimously held by the five judge bench that Clause 4 was violative of the basic structure of the constitution. In relation to Clause 5 the court held that the parliament can amend any part of the constitution as long it does not violate the basic structure of the constitution.

Right to Life and Judicial Activism
As said earlier that there was a change in the way in which the court looked at the Art.21 after the emergency period. After the commencement of the constitution and before the emergency the court adopted a very restrictive approach towards the interpretation of this Article. The first case that came to the case in this regard was A.K. Gopalan v. State of Madras, the court was encountered with the issue of personal liberty. It looked at it in a very narrow manner and said that it would include freedom only from false imprisonment. It included very few other rights. It also said that the by the term ‘procedure established by law’ would mean procedure established by any statute.

This judgment was overruled in the case of Maneka Gandhi v. Union of India, it was laid down that that the term personal liberty could not be given a narrow meaning as in Gopalan’s case, it was said that the expression could not be looked at just from the textual meaning; it should be interpreted in a much broader sense and it would be changing from time to time. One of the most important aspects of this case was that it said that the meaning of the words in the constitution would be changing from time to time and depends on the circumstances in which the case has arisen. The right to personal liberty now includes various rights, these includes those of freedom of speech and other rights of the prisoner during detention.

The interpretation to the word life came into consideration for the first time in the case of Francis Coralie Mullin v. Administrator Union Territory of Delhi, Bhagwati J. said that right to life was the mist fundamental of the human rights, therefore it is most important to give the most liberal and broad meaning to it. Regarding the sentence of death penalty the court has said that it should be given, but only in rarest cases. The right to die, which earlier was included in the right to live, was later said by the court not to be such. The earlier case could be said to be that of over-activism exercised by the court. However, it rectified in the later case. As seen earlier Art. 21 have been used as a canvas by the Supreme Court to provide the human rights to the people. This now includes rights like, right to shelter, right to privacy, right to clean water and air, right to health and a number of other rights. The concern shown by the court towards so many issues needs to be appreciated. However, there is one problem with this kind of attitude shown by the court. It is just making laws and expects the people to follow it and abide by it. But, it fails to understand the difficulties that will arise in the implementation of laws as right to shelter. Practically looking at the issue it is not possible that everyone can be provided shelter. Even if the state tries its best then also making such a thing as fundamental right is really problematic.

Public Interest Litigation: The Interest They Serve
Public Interest Litigation is one of the important principles that the court has given to the country. PIL are one of the three contours of judicial activism that are developed by the judiciary. The other two are the broader interpretation given to fundamental rights and the accountability of the officials. The basic concept of PIL is that trough it the court along with social activists is looking into the matters of government commitment for welfare of the poor and oppressed. It is not concerned with the rights of one individual, but with the society at large. These petitions have brought the judges more close to the common man. The considerations prompting such relation are to enable the Court to reach the poor and the disadvantaged sections of society, who are denied rights and to enable individuals or groups to raise matters of common concern arising from inefficient governance as also to increase the public participation in the process of constitutional adjudication.

Through PIL’s the Supreme Court has provided relief to the people to a great extent. A person might not be able to admit his case just because of the fact that he is not adequately affected. This means that in such a case the governmental agency can keep on violating law, even if it is violating public interest. The increasing number of cases on PIL has been seen as the sign of faith in the judiciary. Its importance is that with one judgment a number of people are benefited from it. There are various areas in which the courts have entertained PIL’s. The area of these petitions range from inhuman working conditions in the stone quarries[56] to the death of persons in police custody.

These petitions have brought about quite a few changes in the administration of justice. One of the important one is that the distinction between ratio decidendi and obiter dictum has become inconsequential with respect to PIL. The legal principles that forms the basis of a decision and without which the decision could not have been rendered is called the ratio. The legal principles which are explained by the Court but are not necessary in the disposal of the case is the obiter. The case ofGolaknath is an instance of the erosion of this distinction. The dicta that Parliament cannot amend the Constitution so as to take away or abridge the fundamental rights was strictly speaking not the ratio as the actual decision of the Court, which was that the impugned amendments were valid, had no direct connection with the above said dicta. But in reality, the Courts as well as Parliament treated it as theratio.

One of the reasons that have been given for the increase in such petitions is the failure of the other two organs of the government, the legislature and the executive. It is only sue to the failure of both the organs to provide people with basic facilities or violating the fundamental rights of the citizens that, the courts are being asked to do this job. After the corruption in the government and the executive has increased it became necessary for the people to turn to the judiciary for relief. The judiciary has started to act as the saviour of the common people. Another reason that can be contributed to the increase in the role played by the judiciary is the advancement of the society in all spheres. This continuous change does not give sufficient time to the legislature to make the possible change in the laws and as a consequence of such the people might have to face hardships due to the old existing laws.

The Activist approach adopted by the court that has been examined in the previous parts has proved beneficial for many in the country. The people who have benefited most are the common people who even when their right was violated could not approach the court.

The Positivist Approach or the Practice of Judicial Self Restraint
In the earlier part of the research paper the concept of judicial activism was looked into. Besides exercising activism, the judiciary has also exercised self-restraint in certain matters. Judicial self-restraint can be defined as any limitation on the judicial decision making, other than those expressly imposed by the Constitution or statute, is the consequence of judicial restraint. There are three basic areas in which the judicial self restraint can be noticed; (i) political questions (ii) legislative powers and (iii) discretionary powers of the administration.
The reason for judicial restraint in cases of political questions has been due to the doctrine of separation of powers. This doctrine defines separate functions for each wing of the government and one is not to interfere with the other. In the early period of Indian constitution the approach of the court was that of judicial restraint only. We have seen that in the case of A.K. Gopalan v. State of Madras, the court adopted a very restrictive approach towards interpretation of Art. 21. The court during that time adopted a positivist approach. In matters of personal liberty as well as regulation of the economy, the Court observed judicial restraint and legitimated the actions of the government. One of the reasons for this approach adopted by the court could be that at that time the state was suppose to be a welfare state and the duty of the court was to expand the functions of the government at that time.

One of the examples of judicial restraint is the case of State of Rajasthan v. Union of India, the court rejected the petition on the basis that it involved political question and therefore the court would not go into the matter.` The nature of Presidential power in this case was hypothetical in nature. This was another reason why the court refused to look into the matter. The court encountered the situation of Presidential power in S.R. Bommai v. Union of India. They judges in this case said that there are certain situations where political element dominates and no judicial review is possible in such cases. The exercise of power under Art.356 was a political question and therefore no judge answered it. Ahmadi J. said that it is difficult to evolve judicially manageable norms to scrutinize the political decisions. And if the courts do it then it would be entering the political thicket and questioning the political wisdom which the court must avoid.

The self restraint with legislative powers means the reading the statute in a particular form. The method adopted by the court is one of reading down the statute in order to sustain its validity. The reason given for this attitude is a legislature is presumed to be more understanding towards the need of the people, because it is an elected body. The court in certain cases has held the law to be valid, just because of the presumption that it is passed by a competent legislature and it should be constitutional. The concept of ‘reading down’ a statute means that the courts should read the law in such a way that it makes the consistent with the constitution. This concept is a bit ambiguous as two judges might read a particular statute in two different manners. Judicial self restraint with respect to discretionary powers of administration is important because in such a case there is no direct attack on the discretionary power. The only question that the court needs to look into is that of legality of the action. Although this area is one in which the court exercises restraint still the court should be active. This activism should be shown in areas where the basic human right of the person is affected.

Judicial Self-Restraint and the Right to Education
The constitution of India confers a duty on the state to provide education to everyone w In this regard, the case of Unni Krishnan has become famous. Because it made the right to free and compulsory education up to the age of fourteen a fundamental right. When the decision was given, it was hailed as a landmark decision in the field of rights of the child. The making of the right to education justifiable is indeed a commendable step. But coming from the Judiciary and not from the Legislature, it needs to be examined whether it is as commendable as it seems. This decision comes in the context of the Judiciary converting many of the directive principles of state policy into fundamental rights.

It is interesting to trace the decisions with respect to the right to education. In 1992, in Mohini Jain v.State of Karnataka, the Supreme Court while highlighting the importance of education to make life meaningful held that the right to education run directly from the right to life, which according to them was a covering expression covering all those rights which are the basic human rights and not provided at any other place. It also imposed an obligation on the State to provide educational institutions at All levels to its citizens. The right is now limited to primary education only.

Despite the positive response it has received, the decision has much left to be answered. For instance, the elevation of elementary education to the status of a justifiable fundamental right does not explain how such a move would reverse the conditions that prohibited the universalisation of elementary education in the last 51 years of operation of the Indian Constitution. In the bureaucratic rush to educate anyhow, the substantive debates around issues such as curriculum, pedagogy, and teacher orientation and appropriate institutional arrangements are likely to be rendered irrelevant. Neither the judgment nor the new amendment makes any commitment as to the quality of education to be imparted. The right to education would become meaningless if the curriculum was used for the propagation of communalism. Thus the court has to think at the implications of making such a judgment. There is a contrary view on this issue. It can be said that by a complementary and holistic reading of the provisions of Part IV and Article 142(1), the Supreme Court has sought to achieve under Article 21 its constitutional authorization. It is just a matter of procedure and not of substance. In essence, the Court, it is pointed out, has not go astray any constitutional limitation; neither has it indulged in any act of constitutional dictatorship. The researcher respectfully disagrees with this view. What the Constitution mandated is the provision of education ‘within the limits of the State’s economic capacity.’ the Court by making the right to education a fundamental right, though now supported by a Constitutional Amendment, has not taken that part of Article 41 into consideration because the enforcement of a fundamental right does not depend upon the economic capacity of the State.

Today, in India there is a lot of tussle for engineering and medical seats in colleges. It is due to this only that the colleges are charging high capitation fees. The Court in Unni Krishnan’s case addressed this issue with its new found dynamism. It visualized a scheme for the medical institutions, whereby, fifty percent of the seats were to be ‘free’ seats and the rest could be ‘payment’ so that the latter fifty percent seats would cross-subsidize the free seats. The logic given was that, in the earlier set-up of things, when the colleges were free to charge any amount they wanted, the opportunities for the poor students was radically reduced and this resulted in inequality. It was in order to reduce this variation that the Court devised this scheme. But in the recently decided 11 Judge Bench decision in the T.M.A.Pai Foundation case, in which Unni Krishnan was again taken into consideration, the Supreme Court termed this above-mentioned scheme as ‘not a reasonable restriction.’ Further, it said that the scheme imposed by the Court made it difficult for the educational institutions to run efficiently and hence cannot be imposed on them.

There is a danger of the Judiciary creating array of rights without the possibility of adequate enforcement. This danger will in the ultimate analysis be counter-productive and undermine the credibility of the Judiciary as an institution. The Court cannot create rights where none exist. In such a context it would do well for the Judiciary to observe some restraint. Independence of the Judiciary authorization that it is the Judiciary itself that draws the line. It cannot be something that is imposed from the outside.

Judicial Restraint and Basic Structure
We have already seen that the judiciary has exercise its activism in the cases related to basic structure. However, there is a change in the course which the judiciary after the Minerva Mills case. The court has started to exercise restraint in using the basic structure doctrine with respect to constitutional amendments. It upheld Articles 323-A and 323-B, the Supreme Court looked at these tribunals from the angle that they would reduce the burden on the High Courts. After the decision of Kesavananda Bharti, the Supreme Court was able to successfully invoke the basic structure doctrine only five times. This shows the change in the political scenario and also the decreasing activism of the judiciary in this area.

However, the most important case where we can see Supreme Court exercising the judicial self-restraint is the case of Kihota Hollohon v. Zachilhu and others, the question that came before in this case was the Constitutional validity of Fifty-Second Amendment, 1985. This amendment inserted the tenth schedule. According to Cl.2(1) (d) said that if a person changes his political party after getting elected to the legislature then he would loose his seat. This was challenged on the ground that it curbed the freedom of speech of a member. It was also argued that right o vote is collateral with the freedom of speech. A five judge bench was constituted to look into this matter. The court did not express any opinion with regards to the provisions that violated the freedom of the members of the legislature. The court used the doctrine of severability to exercise restraint in this case. They held one of the para of the Tenth Schedule as invalid, and the rest was held to be constitutional. The reason given by the court was that para 7 was severable from rest of the schedule and therefore only it could be held to be invalid.

In addition to this problem there are various political limitations attached to the basic structure doctrine. These limitations arise of the amendments passed by the Parliament. In Indra Sawney v. Union of India, the rule laid down by the court that the reservations in the jobs should not be more than fifty percent and also, there can be no reservation in the case of promotions. This was struck down by the Parliament by an amendment. The Court cannot just hold the amendment unconstitutional every time, in case where the amendment has been passed by an absolute majority. The reason being that the legislature is an elected body, if the court will hold all its actions as invalid then the integrity will come under scrutiny.

Separation of Powers: Judiciary-Parliament Conflict
The doctrine of separation of powers has been recognized by the American Constitution. This doctrine implies that all the three organs of the government have separate functions and they should not interfere with each other to a large extent. The English does not recognize this doctrine, and it is rejected in totality. The Indian Constitution follows a middle path.

The framers of the Indian Constitution did not recognize the doctrine in its absolute rigidity. However, the functions of the various State organs have been spelt out sufficiently in the Constitution. So also the Constitution itself provides for certain occasions when there might be postulation of the functions of another organ by some other organ of the State. But the Constitution does provide for a system of checks and balances and all the organs are bound to function within this system. Thus, it is commonplace that the Legislature enacts the law, the Executive implements it and the Courts interprets it and also adjudicates on the validity of the legislation itself.

The constitution provides sufficient judicial power to the judiciary to look into the various matters. Similarly, the legislature as well has been provided with specific functions which it has to carry out. However, there are certain residuary powers which are not provided to any organ of the government. But, as India follows a democratic form of government, these powers falls in the bag of the legislature and not the judiciary. Therefore, the judiciary should not go into the matters which fall under the Parliament’s domain. It if does so then it would be unconstitutional in nature, hence the judiciary does not has the power to interfere with the functions of the other organs of the government, which it has started under the cover of PIL’s.

The past decade had witnessed the erosion of the democratic values, the executive apathy, red-tapism, corruption, malpractices and violations of human rights reaching their peak.. The Judiciary started ordering not only the ‘what’ and ‘when’ of its directions to be complied with by the executive but also the ‘how’ of them.[83] In A.K.Roy v. Union of India, the Supreme Court issued directions as to how the people under detention are supposed to be treated, while they are kept in detention. In another instance the Supreme Court had laid down a number of guidelines for the appointment, transfer, tenure, status, etc., of the chiefs of the investigating agencies like the Central Bureau of Investigation, the Central Vigilance Commission, the Enforcement Directorate, etc. The latest illustration of the Judiciary overstepping itself and legislating in the guise of directions is found in the directions issued to the Election Commission requiring candidates to provide on the affidavits information about themselves such as whether they had any past convictions, criminal cases pending against them, , their educational credentials, etc, in a prescribed format, failing which their nomination should be rejected.

The judiciary has not only made new laws, but it has also given wider interpretations to the existing laws. All this proves the inefficiency of the legislature. This is also clear violation of the doctrine of Separation of Powers. If we look at this from the other way round, then the reaction of the judiciary would be different. If the legislature starts interfering with the judicial functions, then it is most likely that the court would declare it unconstitutional.

The judiciary does not look into the methods by which the directions given by it will be implemented. There is no proper guideline as to who will be looking after the implementation part of the order. Does the judiciary has sufficient resources to implement it? Or does it has to take the help of the executive? The answer to the first question is an obvious no. Yes, seems to be the most obvious answer to the second question. However, if the judiciary does so then, it would frustrate the whole cause, as most of the PIL’s are against executive action only.

The Court has insisted that it undertook law-making through directions only to fill in the vacuum left by the Legislature or the Executive, and that its directions can be reinstate by legislation enacted by the Legislature and where no legislation was required, by the Executive power, whose power is coterminous with the Legislature. But this hardly seems to be happening. The people of India have become politically more assertive in registering their protest, as a consequence of this no party able to secure a majority since 1989. Coalition Governments have become the order of the day and with that came the era of coalition politics with the result that the Parliament of India has virtually stopped legislating. Thus, when any Bill is introduced in Parliament it is very rare that all the parties or at least a majority of the political parties are ready to pass the Bill, with the exception of course of Bills increasing the MPs’ salaries or other benefits! In such a situation, it seems highly unlikely that the Government or the Legislature is going to substitute the decisions of the Courts with legislation.

After dealing with both the doctrines of judicial activism and judicial self restraint, the question that lies in front of us, which one should the Supreme Court follow. We have seen the positive as well as the negative aspects of both. The positive aspects of judicial activism will be negative for judicial self-restraint.

One of the positive aspects of judicial activism is the development of Public Interest Litigation. This has helped the common man to a great extent. As earlier the Supreme Court was an institution, which was considered to be only for the elite, the Judges were looked at as someone living in ivory towers. But, now any person can move the Court under PIL. With the plethora of cases that have reached Supreme Court in last few years, have given a reformist look to the court. However, this has certain negative points attached to it, the Judges just pass the order which they think will help the society at large. Indeed it’s a noble cause, but the researcher feels that the court should give the directions to the legislature and ask it to pass a law in this area. The reason being legislature is the elected body and it has the resources to implement the laws. Therefore, the judiciary should act as a mediator between the common public and the Parliament.
There are areas where the courts initially showed its active nature, by striking down various amendments made by the Parliament as unconstitutional. This was an important role that was assumed by the court, as there should be someone who has to monitor the working of the Parliament. As the working of the legislature is highly politicized and therefore certain decisions are influenced by personal interests. Thus, the role assumed by the court has helped to keep a check on this. However, applying the doctrine of separation of powers, the judiciary should not interfere with the working of the legislature, as then a question of integrity comes on the legislature.

Looking at the example of education, where the Supreme Court has exercised self-restraint, one can see that the courts should not take the role of a law maker and started dealing with all the issues. It has to exercise restraint in certain cases especially the one related to economic issues. It should be left to the discretion of the legislature. However, the role that Supreme Court has played in the interpretation of Art.21, needs to be appreciated. Many basic human rights which were not looked at by the Constitution makers. However, in this case also the Supreme Court has crossed certain limits and made certain rights as the fundamental right, without even looking into the difficulties that might arise in implementing these rights.

Thus, there are certain areas where the Supreme Court needs to practice restraint. However, this restraint should not make the court passive. As an active court is essential for the efficient working of the government.
*Source: Legalsutra

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