Abstract

Judiciary is the third pillar of every democracy in the world .The purpose of the judiciary is to interpret laws, to strike down unconstitutional provisions and most importantly to serve justice to the aggrieved. People have innovated various new methodologies of committing crimes such as acid attacks, cyber fraud, hate crimes, using technology to hack sensitive data etc.bacuse of which it becomes imperative for the judiciary to provide speedy justice to the victims of these crimes. But sometimes laws are not sufficient to serve justice to the victims or for same matter there exists no law. Then how the judiciary will serve justice to the aggrieved? Here comes judicial activism to rescue. This is a revolutionary approach used by the judiciary to serve justice to the aggrieved where there are no laws for a particular matter or the existing laws are insufficient to provide complete justice. But in this attempt of providing justice, judiciary often crosses it boundaries and intrude the space of legislature and executive, which clearly shows the violation of separation of powers. This research paper attempts to scrutinize this revolutionary approach of the judiciary of providing justice. The scholar attempts to explain the doctrine of separation of powers, doctrine of separation of functions, the extend up to which the intrusion of judiciary is justiciable, merits and demerits of judicial activism, evolution of judicial activism and the constitutional validity of judicial activism. This paper attempts to give a holistic view of judicial activism to its readers.

Keywords

Judiciary, judicial activism, justice, separation of functions, separation of powers

Introduction

There is a famous saying that “justice delayed is justice denied”, so in order to serve justice, it is very imperative for the judiciary to provide justice to the aggrieved party in times where the legislations are insufficient or there exists no legislations. In simpler terms judicial activism is defined as the, use of judicial powers were the presiding judges go beyond their boundaries and decide cases to ensure delivery of complete justice. By doing this, they might be interfering in the work of executive and legislature, but in India, we don’t have serious separation of powers. Coming out of said boundaries of judiciary is called judicial activism. It is where a presiding officer uses his/her intellect to decide upon an issue where legislations fall insufficient or there exists no legislations. Judicial activism is a bit controversial because here the judiciary intrudes into the territory of legislature and executive to give justice which not accepted by both the components of the state. Also it is not well defined in our constitution. In ancient times, all the powers shall be vested with the king /monarch. For every issue king’s decision was the final authority and no one can challenge it. Intellects and scholars of those times started thinking that in the interest of the citizens, it imperative that there should be a separation of powers. Later Greek philosopher Aristotle, devised a doctrine called’doctine of separation of powers’. Now here the question comes that, power must be separated from whom? Famous French philosopher Montesquieu, defined components of state. According to him the components of state includes-

1. Executive
2. Legislature, and
3. Judiciary

According to him, these components should only perform their functions and should not intrude into each other’s territory.

The research paper aims to find out that whether the barriers made by the Greek philosopher Aristotle can be strictly followed in a country like India, is it possible that without the intrusion all the three components, i.e., executive, legislature and judiciary can work(separation of powers), and  its connection with judicial activism. It focuses upon the crucial questions like judicial independence and activism, judicial overreach v activism and so on. It further illustrates the merits and demerits of judicial activism and the limits of the three components.

Research methodology

This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the separation of powers and judicial activism in India. Secondary sources of information like newspapers, journals, and websites are used for the research.

Review of literature

Aristotle said that the doctrine of separation of powers must be strictly followed otherwise their will a violation of balance of power which will result in the conflict of powers and ultimately the state will be collapsed. When a state strictly follows the barriers then it is known as separation of powers and when same flexibilities (dilution) are allowed it is called separation of functions.[1] In India, we follow flexible

separation of powers, here intrusion into each other’s territory is allowed up to same extend. E.g.: ^[2] upon seeing the poor condition of the air quality in Delhi and other cities of India, the apex court in 2018, passed a judgement of partial ban on the bursting of fire crackers to alleviate the pollution on the occasion of Diwali. Now banning of fire crackers in a state /UT is the job of the Ministry of Environment & climate change, then why the judiciary is doing so?  Here the judiciary has intruded the territory of the legislature. Article 123 empowers the president of India to make ordinances when the parliament is not in session. The job of making laws rests with the legislature, but here the president, who is an executive is making ordinances. Here executive has intruded the territory of the legislature. In the above two examples we saw that components of the state are intruding into each other’s territory for their functioning. India’s political philosophy is rule of law and separation of powers (flexible) and so is the judicial activism. In 1973, when the Allahabad High Court rejected the candidature of Indira Gandhi for the alleged electoral malpractices in [3]State of Uttar Pradesh v. Raj Narain, that marked the emergence of judicial activism in India.

Prior to 1973, whenever we hear a word called ‘district magistrate’ the first thing that comes to our mind was judiciary, the district magistrate was a part of judiciary. But this rank of district magistrate is given to the senior IAS officer who is a part of state (executive) .There is a conflict of powers. Prior to 1973, the district magistrate had the powers of an executive as well as judiciary. After the passing of Criminal Procedure Code of 1973, ^[4] most of the judicial powers of the district magistrate was taken away. The powers were taken away to protect the sanctity of Article 50.which states,’ ‘separation of judiciary from executive’. In1973, the SC gave a landmark judgment in the case of [5] Kesavanada Bharathi v Union of India, where the judges laid down the doctrine of basic structure. According to this doctrine, the parliament of India cannot amend the features incorporated in this doctrine. Article 50 was made a part of this doctrine.  If we give both the powers of executive and judiciary to the district magistrate, then there is a clear violation of Article 50, which ultimately violates the basic structure doctrine. That is why, the judicial powers were taken away from the district magistrate by the CrPC of 1973 to separate judiciary from executive.

Justice delivery

The question arises here is that, can these barriers be strictly followed? For judges to perform activism they have to cross the barriers. For a judge, regardless of his/her name, power and rank, what is his/her function? What he/she does when he/she comes to the court? Their duty is to deliver justice to the aggrieved party/person anyhow.

In the case of [6] Vishaka and Ors. V. State of Rajasthan and Ors. A case was filed by Adv. Naina Kapur against the sexual harassment at workplace of Bhanwari Devi, who tried to stop the menace of child marriages prevalent in Rajasthan in 1997. When the matter went up to the SC, the court observed that, till now we don’t have any law against sexual harassment at workplace. We have laws against section 377(rape), section 354 (sexual molestation), section 498-A (Husband or relative of husband of a woman subjecting her to cruelty) of IPC, Sati Prevention Act and so on. But what Bhanwari Devi was facing was sexual harassment at workplace. Till now the legislature had not made any laws for protecting women from sexual harassment at workplace .So what should a judge do?  Should the judge send the aggrieved person/party back by saying that we do not have any laws against sexual harassment at workplace because the parliament had not made it till now? Can the judge do this? No, the duty of the judge is to deliver justice. The judge crossed the barrier between the judiciary and the legislature and passed guidelines which are known as Vishaka guidelines. Vishaka guidelines were the instructions to the state to protect women from the offence of sexual harassment at workplace. What has happened in this case? The judiciary has crossed the barrier and had gone into the territory of the legislature. Can the barriers be strictly followed? No, for the complete justice the judiciary has to intrude the territory of legislature and executive. If the judiciary is not allowed to cross this barrier, the entire system comes crushing down.

The judgment passes by the SC in 2018 regarding the partial ban on the bursting of firecrackers is an another example of flexible separation of powers. In this, the judiciary has crossed the barrier and this time it has gone into the territory of executive (Ministry of Environment & climate change).When the matter went up to the SC , the judges found that we have laws like Air Pollution Control Act, Environment Protection Act etc. but we don’t have an act/rule banning firecrackers. If there are no laws banning firecrackers, then the judiciary has to take the stand in order to deliver complete justice, because someone has come to the judiciary with the expectation that the judiciary will save us from the pollution. There is a Latin maxim,’ Ubi jus ibi remedium’ which means, where there is a right there is a remedy. For the complete justice, the barriers should not be strictly followed. This came to be known as judicial activism.

Being a citizen of India, what kind of judges do we expect? The judges who says that due to lack of law, we can’t do anything for you or the judges who says that I have to deliver justice, and for that I can even cross the barriers.

This judicial activism formed the foundation for the revolution called the Public Interest Litigation (PIL).In 1979, Kapila Hingorani, who was journalist went to Bihar, and there she met with a lady called Hussainara Khatoon, who was illegally detained against procedure established by law (which is a part of Article 21). Kapila Hingorani filed a petition in the Supreme Court of India for Hussainara Khatoon and other illegally detained prisoners, and the case was famously known as [7]Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar. Soon after its filing, it formed the foundation of a revolution known as Public Interest Litigation (PIL). In this, a concerned citizen can file a petition for a larger public interest in the SC or the HC’s under the articles 32 and 226 of the constitution of India. If a fundamental rights are violated then the courts using its writ powers can take strict actions against the state. After the case of Hussainara Khatoon, thousands and thousands of prisoners were released across India, who were detained unlawfully as the court put its steps outside to deliver justice. This is known as judicial activism

Constitutional validity of judicial activism

[8]As far as the constitution is concerned, it has not explicitly talked about judicial activism. There is no Article in the constitution of India which expressly defines the word ‘judicial activism’. [9]The founding fathers of our constitution has given the responsibility of interpretation of constitution and protection of fundamental rights of the citizens enshrined in our constitution to the judiciary. The apex court has the power to review the actions of the executive and legislature so that their actions don’t violate any fundamental rights. This is the crux upon which judiciary performs activism, and this activism should not be considered outside the ambit of the constitution.

Balancing activism

Here the scholar will do a deep analysis of the judicial activism. Here the scholar shall be discussing about the merits and demerits of performing activism in India.

Pros of judicial activism-

1. Government not responding– When due to insufficiency of law or due to lack pf law, governments don’t listen to the laments of the citizens, they often tend to ignore it.People in distress will go to the judiciary for the solutions of their problems. Here if the judge comes out of his /her restraint and solve the grievances of the people, then the people’s faith and respect for the judiciary will increase manifolds.
2. Judicial enthusiasm – Judges are very well informed about the situation of our country They see how long people  live in distress because of inadequacy of law or due to no law and therefore to alleviate it they themselves takes the cognizance (suo-motu)
3. Constitutional powers– Constitution has given the courts the power to take suo –motu cognizance (Article 32), and to take decisions necessary for the providing complete justice. (Article 142).
4. Legislative vacuum– Prior to vishaka guidelines,(discussed above) if a women complains of sexual harassment at workplace, police max to max files a case of molestation and criminal intimidation. It means that if there is no law then the victim will get no justice? To fill this vacuum of legislation and to serve justice, judges came up with their wise thinking. They cross their boundaries and go to the territory of legislature or executive, as the case may be to serve complete justice and also to ensure that no one is denied justice.
5. Need of justice– In this era of world, where justice comes with a price tag which the victim or his/her family members has to pay either by under trail or due to the postponement of the punishment, it is imperative for the judiciary to give speedy justice to the victims and provide them same sort of closure. For that, a judge must realize that, his/her foremost duty is to deliver justice to the aggrieved party/person at any cost.

Cons of judicial activism-

1. Undemocratic – The act of judicial activism showed by the judiciary is undemocratic in nature. We have not elected the judges of the High court or the Supreme Court to make laws for the country or to answer the laments of the citizens of this country. For that purpose we have a democratically elected government to make laws and to be accountable.
2. Specialty– The judiciary don’t have specialization in all the matters concerning the state. Like in matters of corporate, finance, GST, defense etc. If a dispute arise in the company law then the High court or the Supreme Court won’t be able to perform activism.
3. Responsible-If a judge retires and after his/her retirement something bad happened due to his/her activism, then who will be responsible for that? We can make the Government responsible for its misconduct/mishandling of that matter in the next election, but can the citizens fix the accountability of that outgoing judge?
4. Enforceability-If judiciary passes an order and legislature and executive did not follow it, then who will lose respect? It’s the judiciary. Rule of law will came under danger. At times it can became annoying for the citizens to give directions on every aspect like in [10]In December2016, the apex court issued directions for banning the sale of liquor along the national and state highways.
5. Improper balance of power– As the scholar discussed above, separation of powers is not strictly followed in our country. It is quite evident from the above cases that judiciary often tends to cross its boundaries to deliver justice, which might be not accepted by the legislature and the executive. This will lead to conflict of powers and in a long run might even collapse the state.

 Limit of activism

After seeing the merits and demits of judicial activism, one thing is very obvious that ,as long as the judiciary is protecting the interest of the citizens its acceptable, but for doing this ,if they intrude the boundaries of the legislature or the executive it will result in improper balance of power. As discussed above that, the judicial intrusion into the territory of legislature and the executive is allowed is up to certain extend.  How will we determine that the intrusion is justiciable and is not more than required? In December 2016, Supreme Court issued directions that within 500 meters of national and state highways there cannot be liquor outlets. This decision of the Supreme Court was widely criticized. Its shows that activism is subjective, we may or may not like the activist approach of the court or a judge. Same people appreciate activist judges while same will criticize them. There is a divided house for this matter. Only one thing which can break this deadlock is balance of powers and hence they are left to their own limits. The three components of the state i.e., executive, legislature and the judiciary themselves have decide their limits so that there no imbalance of powers. It is quite evident from the above mentioned fact that, in a country like India, strict separation of powers cannot be followed. We follow flexible separation of powers which permit the three components to go into other’s territory for their functioning. Therefore, it is imperative for three components of the state to decide their limits and extension of intrusion themselves while keeping the stability of state and balance of power in mind.

Judicial independence and activism

Criticizing activism is justified but compromising with the independence of the judiciary is not. The judiciary must not just interpret the black and white laws but also ensure delivery of justice. For that purpose, we cannot compromise the independence of judiciary. Judicial activism up to certain extend can be tolerated by the legislature and the executive, but the intrusion of legislature or executive or both in the functioning of the judiciary will undermine the independence of the judiciary. The function and the authority of the judiciary must at any cost should be separated from the other two components of the state.

Judicial overreach v activism

Judicial activism is a  situation where judges came out of their so called ‘restraint’ and give justice to the aggrieved party When the judiciary starts interfering with the functioning of the other branches of the government primarily executive and legislature, then it is termed as judicial overreach. [11]It undermines the smooth functioning of the other branches of the government which challenges the doctrine of separation of powers. If a mishaps happens then, we cannot fix the accountability of the institution, we cannot makes the judges accountable. [12] Examples of judicial overreach can be ban of liquor sale at outlets which are within 500 meters of any National or State highway; issued guidelines in Vishakha’s case regarding the prevention of sexual harassment of women at workplace, ban on bursting firecrackers citing rising pollution in the capital. The thin line of difference between the both, must be dealt with due cation and care by the judiciary while deciding the cases.

Cases of judicial activism in India

1. [13]Christian Medical College and Ors v Union of India

Here the apex court barred the colleges from conducting their own medical entrance exam and        said that the same can be conducted through only NEET.

• [14]Advocates –on-Record Association v Union of India

Here the Supreme Court declared the National Judicial Appointments Committee Act unconstitutional as it was violating the independence of the judiciary.

• [15]Sunil Batra v Delhi Administration

Here the Supreme Court held that the letter written by a prisoner upon the atrocities committed in the prison will be treated as a petition .Even the technicalities cannot stop the court from protecting the civil liberties.

• [16]Sheela Barse v State of Maharashtra

Here the apex court took the letter of a women who was a victim of violence committed in the jail as a writ petition and issued appropriate guidelines for the concerned state.

Suggestions & conclusion

Judicial activism same what hampers the functioning of the legislature and the executive. There is a very fine line of demarcation between judicial activism and overreach. We all would prefer activist judges because they in any case will provide justice and will also make sure that no one is denied justice.  While deciding a particular case judiciary must be very cautious and careful because if a move is perceived as activism, the same move can also be perceived as overreach as the topic of activism is very subjective. Also the three components of the state should make their own limits to avoid intrusion. The extend of intrusion should not be visited again & again by the judiciary/the three components of the state for the smooth functioning of the state. In a country like India, where there are huge pendency of cases both at the superior courts and the subordinate courts and were justice comes with a price tag with it, we all expect judges to give us the justice any how despite of insuffiency of law or lack of law. Judicial activism is good when it turns out to be beneficial to the aggrieved person/party or for the under-privileged section of our society, but it should not interfere with the political framework of our country. If judiciary takes the defense that, the executive or the legislature or both had failed to perform their duties, which forced them to do activism, then with this logic every organ of the government must take the defense of each other’s failures to justify their intrusion. For the larger interest of the citizens and of this country, what we need is balance of powers. In a democratic establishment like India, powers are not vested in hands of a king / queen or in an autocratic government or with the judiciary, it is vested with the three branches of the government which ensures streamlining of functions. Activism must be such that it inspires faith and respect in the eyes of the common citizenry.

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[1] B2B.’ Doctrine of separation of powers in India’, Civilsdaily (Sept 22, 2017)  https://www.civilsdaily.com/doctrine-of-separation-of-powers-in-india/

 

[2] Swati Gupta,’ India’s top court partially bans firecrackers as smog season begins’, CNN (Oct 23, 2019) https://edition.cnn.com/2018/10/23/health/india-firecracker-ban-pollution-intl/index.html

 

[3] 1975 AIR 865, 1975 SCR (3) 333

[4] District Magistrate, available at: https://en.wikipedia.org/wiki/District_magistrate(Last modified Aug 20, 2021)

[5]. (1973) 4 S.C.C. 225; A.I.R. 1973 SC 1461

[6] 1997 SC 3011

[7]  1979 A.I.R. 1369, 1979 S.C.R (3) 532

[8] Judicial Review vs Judicial Activism vs Judicial Overreach, available at: https://www.clearias.com/judicial-review-vs-judicial-activism-vs-judicial-overreach/ (Last modified Nov 20, 2016)

[9] Yash Budhwar,’ Judicial activism: Permitted by the Constitution or not?’ QRIUS (Feb 15, 2015) https://qrius.com/judicial-activism-permitted-constitution-not/

[10] Pratik Rakshit, ’No more liquor shops along National and State Highways, says SC’, India Today (July 26, 2021) https://www.indiatoday.in/auto/latest-auto-news/story/no-more-liquor-shops-along-national-and-state         -highways-says-sc-1832785-2021-07-26

[11] Kenneth M Holland, ’Judicial Activism and Judicial Independence: Implications of the Charter of Rights and Freedoms for the Reference Procedure and Judicial Service on Commissions of Inquiry’, (18 July 2016) Cambridge University Press https://www.cambridge.org/core/journals/canadian-journal-of-law-and-society-la-revue-canadienne-droit-et-societe/article/abs/judicial-activism-and-judicial-independence-implications-of-the-charter-of-rights-and-freedoms-for-the-reference-procedure-and-judicial-service-on-commissions-of-inquiry/AC2FE0AD20AEDE7F15A7EAE81BD4BCED# assessed on 12 Sept 2021

[12] Vinod Surana, ’Judicial adventurism: time to introspect’, BusinessLine (May 3.2021) https://www.thehindubusinessline.com/business-laws/judicial-adventurism-time-to-introspect/article34465686.ece

[13] REFERENCE – (CIVIL) NO.98 OF 2012

[14] 5 SCC 1, (2016) 2 SCC (LS) 253

[15] AIR 1579, 1980 SCR (2) 557

[16] AIR 378, 1983 SCR (2) 337

AUTHOR:

Anushka Mishra

Amity university Chhattisgarh