Author – Adarsh Kumar Designation – Student LLB (Hons.),

Author        – Adarsh Kumar       Designation- Student LLB (Hons.

), VIth Semester, City Academy            Law College, University of LucknowE-mail          – [email protected]  – 91-6394148580,91-9565618923                                                                                     SCOPE OF JUDICIALPOWERS:JUDICIAL ACTIVISMItis true on some occasions, courts have overstepped their limits. But, by andlarge, judicial activism has done a great service to society. Tobegin with, what does the concept of ‘judicialactivism’ mean? Let me try to put it in proper perspective withintroduction. IntroductionUnder the Indian Constitution, the State is underthe prime responsibility to ensure justice, liberty, equality and fraternity inthe country.1 Stateis under the obligation to protect the individuals’ fundamental rights andimplement the Directive Principles of State Policy.

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In order to restrain theState from escaping its responsibilities, the Indian Constitution has conferredinherent powers, of reviewing the State’s action, on the courts. In thiscontext, the Indian judiciary has been considered as the guardian and protectorof the Indian Constitution. Considering its constitutional duty, the Indianjudiciary has played an active role, whenever required, in protecting the individuals’fundamental rights against the State’s unjust, unreasonable and unfairactions/inactions.Black’s LawDictionary defines judicial activism as: “a philosophy of judicial decision-makingwhereby judges allow their personal views about public policy, among otherfactors, to guide their decisions, usually with the suggestion that adherentsof this philosophy tend to find constitutional violations and are willing toignore precedent”.

?   Professor,   Former  Chairperson,   Department   of  Law, Panjab  University, Chandigarh.??    AssistantProfessor, National Law University, Delhi.1       TheConstitution of India, 1950, the Preamble. The judicial activism is use of judicial power toarticulate and enforce what is beneficial for the society in general and peopleat large. Supreme Court despite its constitutional limitation has come up withflying colors as a champion of justice in the true sense of the word. JUSTICE…this seven letter word is one of the most debated ones in the entire Englishdictionary.

With the entire world population being linked to it, there is nodoubt about the fact that with changing tongues the definition does change. Thejudicial activism has touched almost every aspect of life in India to dopositive justice and in the process has gone beyond, what is prescribed by lawor written in black and white. Only thing the judiciary must keep in mind isthat while going overboard to do justice to common man must not overstep thelimitations prescribed by sacrosanct i.

e. The Constitution.  Judicial activism describes judicial rulingssuspected of being based on personal or political considerations rather than onexisting law.1The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. History of Judicial ActivismThe exact history of judicial activism is unclear,but it is believed that the concept has been around for centuries. However, aman named Arthur Schlesinger, Jr. brought about the term judicialactivism in 1947.

Schlesinger was a specialist in American History, and waswell known for his study of 20th century American Liberalism.Schlesinger introduced the term in a Fortune Magazine articlepublished that year entitled “The Supreme Court: 1947.” In thearticle, Schlesinger grouped the courts into three categories: (1) judicialactivists, (2) champions of self-restraint, and (3) a middle group.Since the term first hit the political-judicialstage, it has been a point of controversy. This is especially interesting, asSchlesinger never truly defined the term.

Since the term’s inception, therehave been varying opinions on what the term judicial activism truly means.Law professor and leading constitutional scholar,David A. Strauss, has offered his opinion that judicial activism can take at leastthree forms.

These include:1.     Theact of overturning laws as unconstitutional2.     Overrulingjudicial precedent3.     Rulingcontrary to a previously issued constitutional interpretationA good example of the history of judicial activismis the 1954 case of Brown v. Board of Education. In 1951, a group of parents, on behalf of theirchildren, filed a lawsuit against the Board of Education of the City of Topeka,Kansas.

The parents had attempted to enrol their African-American children inthe closest neighbourhood school that year, but were refused enrolment. Thesuit requested that the school district reverse its policy of racial segregation, in which the district operated separate schoolsfor black and white children. The plaintiffs in the case claimed that racialsegregation resulted in inferior facilities, accommodations, and treatment oftheir children.The District Court ruled in favour of the Board ofEducation, based on the prior ruling of Plessy v.Ferguson, a case thatupheld state laws requiring segregated transportation on trains.

When theparents appealed their case to the U.S. Supreme Court, the Court ruled thatsegregation of whites and blacks in school was indeed unconstitutional, as itwas harmful to black students.This ruling flew in the face of the legal doctrineof stare decisis, which requires judges to uphold prior rulings ofhigher courts.

This is also referred to as “case precedent.” In this case,rather than relying on the ruling in Plessyv. Ferguson, which was a similar case, the Supreme Court overruled it.This ruling ondesegregation of public schools came with considerable resistance, as opponentsof the ruling believed that the Court had relied on statistics and socialtheories, rather than on established law. This meant to them that the SupremeCourt Justices had acted outside of its powers by creating new law. Supportersof the decision believed, on the other hand, that the court’s exercising ofjudicial activism was appropriate.

They argued that the court should use itspower to adapt existing laws to address problems in current society.Toward the end ofthe 20th century, the U.S. Supreme Court was seen as a powerful judicial bodyexercising greater activism than ever before. Conservatives criticized many ofthe justices, claiming they struck down many state and federal laws based ontheir own liberal political beliefs. The history of judicial activism shows ushowever, that both liberals and conservatives are known to take part in, andbenefitting from the practice, while accusing the other group of doing so.

  Constitutionalpowers of the Supreme Court and High Courts in IndiaJudicialactivism happens when the courts have power to review the State action. Article13 read with Articles 32 and 226 of the Indian Constitution gives the power ofjudicial review to the higher judiciary to declare, any legislative, executiveor administrative action, void if it is in contravention with the Constitution.The power of judicial review is a basic structure of the Indian Constitution.2Article32 of the Indian Constitution gives right to every individual to move directlyto the Supreme Court of India for the enforcement of his or her fundamentalright. Article 32 confers power on the Supreme Court to issue any order orwrit for the enforcement of any ofthe fundamental rights. The Supreme Court in Fertilizer Corporation KamgarUnion v. Union of India3  held that the power  of the Supreme Court under Article 32 is an integral part of the basic structure of the IndianConstitution “because it is meaningless to conferfundamental rights without providing an effective remedy for their enforcement,if and when they are violated.” Itcannot be suspended even duringemergency.

An appropriate writ/order under Article 32 for the enforcement ofArticles 17, 23 and 24 can be passed against a private individualalso.4Increasingly, theSupreme Court has interpreted Article 32in a very liberal manner in many cases in order to enforce fundamentalrights even against the privateentities performing public functions.Article 226 of theIndian Constitution gives power to theHigh Courts to issue any appropriate order or writ for theenforcement of fundamental right and other legal rights. In this context, the jurisdiction of High Court under Article 226 seems wider than thejurisdiction of Supreme Court under Article 32.

Both Articles 32 and 226 arebasic structure of the Indian Constitution. Article 227 further gives power ofsupervisory control to the HighCourt over the subordinate courts, special courts and tribunals. 2     L. Chandra Kumar v. Union of India, (1997)3 S.C.

C. 261. 3    A.

I.R. 1981 S.C. 344.

4    People’s Union for Democratic Rights v Union of India,(1982) 3 S.C.C.235.Further more, the Supreme Court has power to grant special leave to appeal from any judgment, decree, determination,sentence or order in any cause ormatter passed by any court ortribunal  under Article 136 of the IndianConstitution confers special power on. The Supreme Court exercises its specialpower in those cases where gross injustice happens or substantial question oflaw is involved.

Power under Article 136 is discretionaryone and can be exercised to decidethe case on justice, equity and goodconscience.5  However it should be used with proper care and caution. In Pritam Singh v. The State,6 the SupremeCourt said that wide discretionary  power   under   Article  136   should   be exercised sparingly and in exceptional cases only. In Tirupati BalajiDevelopers Pvt. Ltd.

v. State of Bihar,7 the Supreme Court said that Article 136 does not confer aright of appeal on a party but vestsa vast discretion in the Supreme Court meant tobe exercised on the considerations of justice, call of duty anderadicating in justice.Again,curative petition has beeninvented by the higherjudiciary in orderto prevent abuse of processor to cure gross miscarriageof justice. It is also maintainablein case of violation of the principles of natural justice.8 The apex court in RupaHura judgment in 2002 said that the Bench considering curative petitions should have the three top judges ofthe Supreme Court.Oneof the most important constitutional provisions giving extraordinary power to theSupreme Court is Article142 of the Indian Constitution. This provision empowers theSupreme Court to passsuitable decree or orderfor doing complete justice in any pendingmatter before it. Despite thefact that the law-making power in India lies primarilywith the Parliament only, theSupreme Court is able to legislateunder Article 142 of the Indian Constitution.

This provision is responsible for thejudicial legislation in India. However, the judicial legislation isbeing done only when there is vacuum in lawon the concerned subject-matter.   5    Union of India v. C Damani and Co.

, 1980Supp. S.C.

C. 707.6    A.I.R.1950 S.

C. 169.7    A.


2351.8    RupaAshokHurrav. AshokHurra,(2002)4S.


In Vishaka v.State of Rajasthan,9 the SupremeCourt held that in the “absence ofenacted law to provide forthe effectiveenforcement of the basic humanright of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, welay down the guide lines and norms specified here in after for due observanceat all work places or otherinstitutions, until a legislation isenacted for the purpose. This is done in exercise of the power available under Article 32of the Constitution for enforcementof the fundamental rights and itis furtheremphasized that this would be treated as the lawdeclared by thisCourt under Article 141 of the Constitution.” Considering the importance of Article32 read with Article 142, it becomes necessary for the judiciary that it should perform its constitutional obligation where thereis no legislation on the certain field and implement the ruleof law.10 Again,the Supreme Court in KalyanChandra Sarkar v.

RajeshRanjan,11acknowledged the importance of Article 142 of the IndianConstitution and said that the court has power under Article 142 to issue directions andguidelines for implementing and protectingthe fundamental rights in the absence of any enactment. The courtreiterated that any suchdirection, filling up the vacuumof legislation, is the law of the land.However, the Parliament has power to replacesuch directions e.g. the SexualHarassment of Womenat Work place (Prevention, Prohibition and Redressal) Act, 2013replaced the Vishakha Guidelines for prevention of sexualharassment issued by the Hon’ble SupremeCourt of India in the yearof 1997.      9    A.

I.R.1997S.C.3011.10   Vineet Narainv.Union ofIndia, A.

I.R.1998 S.C.

889.11   A.I.R.2005S.C.972.

Judicial Activism and shift from LocusSstandi to Public Interest LitigationAccess to justiceis a fundamentalaspect of rule oflaw. If the justiceis not accessible to all, establishment of the rule of law is notpossible. The individualsfail to reach justice system due to variousreasons including lack of basic necessities,illiteracy, poverty, discrimination, privacy,poor infrastructure of thejustice system, etc.The Supreme Court of India has recognizedin many landmark judgmentsthat access tojustice is a fundamental right.12 Indian Judiciaryhas played an active role inensuring access to justicefor the indigent persons, membersbelonging to socially and educationallybackward classes, victims of human traffickingor victims of beggar, transgender,etc. Since Independence, the Courtsin India have beenadopting innovative ways for redressing the grievances of the disadvantaged persons. In manycases, the Supreme Court exercisedits epistolary jurisdiction13 and took suo motto actions onmere post allotters disclosing the human rights violations in society.

Human rights violations,which published in the newspapers,were taken into judicial consideration.The court entertains the petitions which are being filed by the publicspirited persons in the public interest.By doing so, the superior courtshave liberated themselves from the shackles of theprinciple of Locus standi  and given the birth to the Publicinterest litigation in India. The shiftfrom locusstandi topublic interest litigation made thejudicial process “more participatoryand democratic.”14 S.P. Sathe says: “The traditionalparadigm of judicialprocess meant for private law adjudication had to be replacedby an ewparadigm that was poly centric and even legislative. While under the traditional paradigm, a judicial decisionwas binding on the parties (resjudicata) andwas binding in personam, the judicialdecision under public interest litigationbound not only the parties to the litigation but all those similarlysituated.

“1512   Imtiyaz Ahmad v. State of UttarPradesh, A.I.


2012642.13   Sunil Batrav. Delhi Administration,(1978)4S.C.C.49414   S.

P. Sathe,Judicial Activismin India (Sixth Indian Impression, OUP 2010)1715   Id.at18.The Supreme CourtinPeople’s Unionfor Democratic Rights v. Union of India16held that public interest litigationis different from the traditional adversarial justice system. Thecourt said that public interestlitigation is intended to promotepublic interest. Public interest litigation has been invented tobring justice to poorand socially or economicallydisadvantaged sections of the society. The violations of constitutionalor legal rights of suchlarge number of personsshould not go unnoticed.

In FertilizerCorporation Kamgar Union v. Union of India,17 the courtheld that public interest litigationis part of the participative justice.Further more, the Supreme Court in BandhuaMukti Morcha v. Union of India18has justified the public interest litigation on the basis of”vast areas in our population of illiteracyand poverty, of social and economic backwardness, and of an insufficient awareness and appreciation of individual andcollective rights”.The Supreme Court of India in SheelaBarse v.

Union of India19 said: “Thecompulsions for the judicial innovation of thetechnique of a public interestaction is the constitutional promise of a social and economic transformation to usher-in an egalitarian social-order and a welfare – State”.  Whilepassing any order under public interest litigation, the intention of the court is to enforce constitution and ruleof law in the society.20One ofthe land mark cases relating to the publicinterest litigation was Hussainara Khatoon (I) v. State of Bihar.21 Aseries of articles exposing the plightof under trial prisoners in the Stateof Bihar was published in aprominent newspaper. Many of the undertrial prisoners had already served the maximum sentence without even beingcharged for the offence.16   (1982) 3S.

C.C.235.17   A.I.R.1981S.

C.344.18   A.I.R.1984S.

C.80219   (1988)4 S.C.C.226.20State of Himachal Pradesh v. A Parent of aStudent of Medical College, (1985) 3 S.C.

C.169.21   (1980)1S.C.C.81.Awrit petition drawing the Court’s attention to the issue wasfiled by an advocate. While acceptingit as public interest involved, the Supreme Court held that right to speedy trial is a fundamental right underArticle 21 of the IndianConstitution.

The courtdirected the State to provide freelegal facilities to the undertrials so that they could get bailor final release.In anothercase of SheelaBarse v.State of Maharashtra,22 aletter alleging custodial violence of women prisoners in jail was addressed to the Supreme Court. Theletter was written bya journalist who had interviewed some women prisoners in jail. Treating the letteras a writ petition, the SupremeCourt took cognizance and issued directions to the concerned authority. Similarly, epistolary jurisdiction was exercised by the Supreme CourtinSunil Batrav. Delhi Administration23 when a prisoner’sletter was treated as writ petition.

The prisoner alleged in the letter that Head Warder brutally assaultedanother prisoner. The Courtsaid that the technicalities can not stop thecourt from protecting the civil libertiesof the individuals.In Municipal Council, Ratlam v.Vardichand,24 the Court admitted the writ petition filedby a group of citizenswho sought directions against thelocal Municipal Council for removal ofopen drains. The Courtsaid that if the “centreof gravity of justiceis to shift as indeed the Preamble tothe Constitution mandates, from thetraditional individualism of locus standi to thecommunity orientation of publicinterest litigation, the court must consider the issues as there is need tofocus on the ordinary men.”Similarly,a petition seeking court’s directionsfor protecting the lives of thepeople who made useof the water flowing in the river Ganga, was accepted as public interest litigation by the Supreme Court of India in the case ofM.C Mehta v.

Union of India.25In this case, the courtdirected the local bodies to take effectivemeasures to prevent pollutionof the water in the river Ganga.  22   A.I.R.

1983S.C.378.23   (1978)4S.C.

C.494.24   (1980)4S.C.C.162.

25   A.I.R.1988S.C.1115.In  Parmanand Katarav.

Union of India,26 awrit petition seeking court’s directions, in order to provide immediatemedical treatment to the persons injured in road or otheraccidents with out going through the technicalitiesof the criminal procedure, wasfiled by an advocate. The SupremeCourt accepted the applicationof the advocate and directedthe medical establishments accordingly. Another good exampleof public interestlitigation is S.P.

Guptav. Union of India.27 In thiscase, the court recognized the locus standi of bar associations to filewrits by way of public interestlitigation. It was said thatquestioning the executive’spolicy of arbitrarily transferring High Court judges is in the public interest. Explaining the significance of publicinterest litigation, the courtobserved that: “It must now beregarded as well-settled law where a person who has suffered alegal wrong or a legal injury or whose legal rightor legally protected interest is violated,is unable to approach the courton account of somedisability or it is notpracticable for him tomove the court for someother sufficient reasons, such as hissocially or economically disadvantaged position, some other person caninvoke the assistance of the courtfor the purpose of providingjudicial redress tothe person wrongdoer injured,so that the legalwrong or injury causedto such person does not goun-redressed and justice is done to him.”28However, the public interestlitigation should not be abusedby anyone.

29 Itcannot be allowedto be used for creating nuisance or for obstructing administration of justice.30    26   A.I.R.

1989S.C.2039.27   A.I.R.1982S.C.

149.28   Id. at162.29   DattarajNathuji Thaware v. State of Maharashtra, A.

I.R.2005 S.

C.540.30   CommonCause (A Regd.

Society) v.Union Of India and Others.CONCLUSION TheJudiciary cannot take over the functions of the Executive. The Courtsthemselves must display prudence and moderation and be conscious of the needfor comity of instrumentalities as basic to good governance.

Judicial activismhas to be welcomed and its implications assimilated in letter and spirit. Anactivist Court is surely far more effective than a legal positivistconservative Court to protect the society against legislative adventurism andexecutive tyranny. When our chosen representatives have failed to give us awelfare state, let it spring from the Judiciary. Thepower of judicial review is recognized as part of the basic structure of theIndian Constitution.

The activist role of the Judiciary is implicit in the saidpower. Judicial activism is a sine qua non of democracy because withoutan alert and enlightened judiciary, the democracy will be reduced to an emptyshell. Judicial activism in its totality cannot be banned. It is obvious thatunder a constitution, a fundamental feature of which is the rule of law, therecannot be any restraint upon judicial activism in matters in which the legalityof executive orders and administrative actions is questioned. The courts arethe only forum for those wronged by administrative excesses and executive arbitrariness.

 Judicialactivism is not an aberration. It is an essential aspect of the dynamics of aconstitutional court.2It is a counter-majoritarian check on democracy. Judicial activism, however,does not mean governance by the judiciary.

Judicial activism must also functionwithin the limits of the judicial process.Thejudiciary is the weakest body of the state. It becomes strong only when peoplerepose faith in it.3 Suchfaith constitutes the legitimacy of the Court and of judicial activism. Courtsmust continuously strive to sustain their legitimacy.

Courts do not have to bowto public pressure, but rather they should stand firm against public pressure.What sustains legitimacy of judicial activism is not its submission topopulism, but its capacity to withstand such pressure without sacrificingimpartiality and objectivity. Courts must not only be fair, they must appear tobe fair. Such inarticulate and diffused consensus about the impartiality andintegrity of the judiciary is the source of the Court’s legitimacy. Takeaway judicial activism and tyranny will step in to fill the vacant space. Soto sum up the judicial activism in India, it will be very appropriate to quotethe words of Dr.

A.S. Anand, Chief Justice of India who said :”….

the Supreme Court is the custodian of the Indian Constitution and exercisesjudicial control over the acts of both the legislature and the executive.” X————————————————-X———————————————————X           2 S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U.

J.L. & Pol’y 029 (2001)3