By Pritha Jha,
V BSL LLB, ILS Law college Pune

Delivering justice to a population of over two billion does not sound like and never will be an easy task. It however, becomes increasingly difficult in a country like India. The varied cultures, the environment, the languages and the religions of the people of this country are as balanced as walking a tight rope; one foot wrong can send the entire country in disarray. Seemingly overlapping powers of the administrators of the nation can cause some serious trouble in this regard.

The Executive, the legislature and the judiciary are the three wings of the Indian democracy. The constitution empowers them and burdens them with duties at the same time. The legislature formulates the law, and the judiciary interprets it. Simple as it may sound, studying the ambit of the words “formulation” and “interpretation” can actually leave the best in the business confused. Most believe that the judiciary, under the guise of interpreting the law, goes a step beyond, and ends up giving the country new binding law, which is usually different from the existing one. This is called judicial activism.


The ongoing debate

The definition of "judicial activism" is an intense ongoing debate. According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent". According to 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, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent."

Conservatives tend to argue that judicial activism is the process of ignoring, or at least selectively choosing precedent in order to hand down rulings which dramatically expand personal freedoms. They also complain that the doctrine of stare decisis is sometimes used to trump up the original meaning (or, in some cases, the original intent) of the text, or that the text is given so broad a construction so as to render it almost infinitely malleable[1].

To others, judicial activism implies going beyond the normal constraints applied to jurists and the Constitution gives jurists the right to strike down any legislation or rule against any precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active specifically in terms of the Constitution.

Many are critical of judicial activism as an exercise of judicial power, which displaces existing law or creates more legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. This, it is argued, violates the doctrine of separation of powers. Judicial activism can be considered as (and is often called) "legislating from the bench" (i.e., promulgation of new law). Some have even gone to the extent of calling it judicial tyranny. An accusation of judicial activism implies that the judge is not performing his or her duty as an interpreter of the law, but is instead ruling on the basis of personal political convictions or emotions.

Liberalists’ argume that the Living Constitution philosophy endorses any ruling, so long as the judge can argue that his ruling helps the constitution to grow and evolve. Critics say that this can violate a judge's sworn allegiance to uphold the constitution, because, in effect, it encourages judges to write their own constitutions. Furthermore, the Living Constitution leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of this confusion is the threat of frivolous lawsuits.

Critics of the Living Constitution also argue that it violates the principle of separation of powers. They say that because the purpose of the judiciary is to interpret existing laws and policies, any action which is not done strictly in accordance with existing law must be activism.

Opponents of judicial activism claim it is not about liberal versus conservative at all, but about whether a constitution should be interpreted strictly according to its text, or whether it is an "evolving document" which requires judges to assign new meanings to its words[2].

A review of case laws proves that judicial activism may work towards the benefit of the society but that is not always the case. Some judgments have been delivered with great insight and vision but some others are based only on self conviction and belief, that such a judgment would help the parties, without taking into consideration the repercursions on the law or on the society at large.



Kehavananda Bharati’s case[3]

This judgment is one of a kind. It came into being when six writ petitions were filed challenging the twenty fourth, twenty fifth and the twenty ninth amendments to the constitution. All the Judges of the bench opined that by virtue of Article 368 as amended by the twenty-fourth Amendment, the Parliament had the power to amend any or all provisions of Constitution, including those relating to fundamental rights. The majority were of the view that the power of amendment under Article 368 was subject to certain implied and inherent limitations. It was held that in the exercise of amending power, the Parliament cannot amend the basic structure or framework of the Constitution. It was also held that individual freedom secured to citizens was a basic feature of Constitution, and could not be altered. The judgment also invalidated the second part of Article 31-C introduced by twenty-fifth Amendment, which excluded jurisdiction of the Courts to inquire whether law protected under that Article gave effect to policy of securing directive principles mentioned therein.

This was a path breaking judgment which gave birth to the doctrine of basic structure. It was this judgment that saved the country when Indira Gandhi sought to amend the constitution so that the courts could not challenge the grounds of her election and to make sure that her election could not be termed void. This case law also overruled the proposition of law which was laid down in Golak Nath vs. State of Punjab.

In today’s time, such judgments are few and far between. The next two cases are perfect examples of what harm judicial activism may cause.


Ashok Hurra vs Rupa Bipin Zaveri

In this particular case, the plaintiff and the defendant filed for divorce by mutual consent after a few troubled years of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower court did not grant divorce to the husband. However, taking into consideration the fact that consent had been withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The Supreme Court held that although the husband ought not to have married before the disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it was held that divorce had been granted and that the second marriage was valid.

This Shocking and astounding judgment well and truly defeats the purpose of an appeal to the Supreme Court. The Supreme Court accepted that the husband should not have remarried before the disposition of the appeal but at the same time, it held the second marriage valid. Granted that there was no possibility of reconcialiation in the marriage with Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since the appeal was pending in the apex court, it cannot be said that divorce had been granted with finality. Yet the husband remarried, and yet the marriage was held to be valid by the Supreme Court. This may become a weapon in the hands of the people wanting to get remarried before disposition of appeals in higher courts.


Arnit Das vs. State of Bihar

A crime of murder was registered at Patna according to which one Abhishek was shot dead. On 13.9.1998 the petitioner was arrested in connection with the said offence. A day later the petitioner was produced before the Additional Chief Judicial Magistrate, Patna who after recording his statement remanded him to a Juvenile home in Patna. The petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to protection of The Juvenile Justice Act, 1986. The petitioner's claim was disputed on behalf of the prosecution. The A.C.J.M. directed an enquiry to be held under Section 32 of the Act. The petitioner was referred to examination by a Medical Board. On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of age on the date of the occurrence and therefore was not required to be tried by a Juvenile Court. The finding was upheld by the Sessions Court in appeal and the High Court in revision. On appeal to the Supreme Court, it was decided that the crucial date is not the day on which the offence is committed but on the day on which the offender is brought before a competent authority.

It was never a disputed fact as to whether the offender was a juvenile on the date of the commission of the offence. It was hence never necessary for the Supreme Court to decide on the issue of whether the date of the commission of the offence or the date on which the offender is brought before a competent authority is the date on which the offender should be a juvenile.

 The Juvenile Justice Act was enacted in order to protect the interest of Juveniles, taking into consideration the age of the person when the offence was committed. The fact that the offender may not have been well aware of the effects of his act contributes to the sanctity of the legislation. However, what happens in a case where an offender is arrested 30 years after the commission of the offence? Does one send him to a remand home with other juveniles regardless of the fact that he is not of their age? Does one try him as a regular offender regardless of the fact the offence had been committed when he was not of age?

Irrespective of how much time elapses after the incident, the offence itself remains an offence committed by a juvenile and the person should thus be judged according to his age and intent at the time of the commission of the offence. The Supreme Court however, provides no guidelines about the aforementioned issue and how this particular situation should be handled.


A Note of Caution

In a monograph "Judicial Activism and Constitutional Democracy in India" commended by Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial activism, sounds a note of caution-"it is plain that the judiciary is the least competent to function as a legislative or the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research, it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification". Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises "the Supreme Court could have well left the decision- making to the other branches of the government after directing their attention to the problems, rather than itself entering the remedial field".



This presentation is a review of various case laws, the ones mentioned above and others, which are not in favour of public policy. There have been no subsequent over rulings of these judgments which surpass all logic. This leads us to wonder whether judicial activism is always good for society. It is a known fact that judicial activism has given us some very good case laws, even led to revolutionary changes in society, but its consistency needs to be questioned.



[1] Taken from www.wikipedia.com

[2] Formulated with information provided at wikipedia.com on Judicial Activism in America and the United Kingdom.

[3] AIR 1973 SC 1461