JUDICIAL ACTIVISM

BOON OR BANE?
Soli J. Sorabjee
Former Attorney General for India
[Nani Palkhivala Memorial Law Lecture
Bombay 11th January 2008]

It is customary to begin the Nani Palkhivala Memorial

Lecture by saying that it is a great honour to have been
asked to deliver the lecture which it certainly is. For me it is
a special privilege because I had known Nani from 1950
when he was a part-time Lecturer in Government Law
College, Bombay and I was then a student. Nanis was the
only class I did not bunk. His lectures were not only erudite
but were marked by wit and humour.
The next contact with Nani was in 1953 when I joined
the chambers of the great Jamshedji Kanga, one of the
greatest lawyers with whom I have come into contact. What
a legal talent was there in Jamshedjis chambers of about 20
by 30 feet. Rustom Kolah, Homi Seervai, Marzban Mistree,
my immediate senior Kharsedji Bhabha, and of course Nani
Palkhivala.
I was fortunate to be Nanis junior in quite a few cases,
including the landmark case of Keshavananda Bharati.
Conferences were brief and concentrated, and marked by
unfailing courtesy to juniors who were well prepared.
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Nani had a phenomenal memory. I do not believe in

reincarnation. But were I to accept it, there would be no
doubt in my mind that Nani was the reincarnation of
Macaulay.
In addition to being an eminent lawyer Palkhivala
became a moral force in our public life. Above all Nani was
a human being par excellence. Fame and fortune did not
increase the hat size of the legendary Nani Palkhivala who
was not born with a silver spoon. His genuine humility, total
informality and lack of any pomposity or conceit were his
most endearing qualities.
Kiplings famous poem If contains a store of good
advice which for ordinary mortals is difficult to practice in
our crowded daily lives. But Nani was an extraordinary
mortal who exemplified in his life at least two percepts of
Kipling. He filled the unforgiving minute with more than
sixty seconds worth of distance run and, what is more, he
walked with kings and yet lost not the common touch. He
was no doubt a Man for all Seasons who bestrode the
narrow world like a colossus.
The theme of this evenings lecture would have been of
great interest to Nani. He was critical of, and rightly so, of
some Supreme Court judgments. But that did not alter his
belief and faith in an independent judiciary as the guardian
of our peoples fundamental rights and freedoms.

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*****

*****

*****

Judicial activism is a well trodden ground. Judicial

activism and activist judges have become buzz words in the
controversy surrounding the role of the judiciary in our
constitutional scheme. These expressions are rather slippery
and convey different meanings to different persons.
I propose to follow the example of one of Indias great
jurists, the late H.M. Seervai, the author of the classic
Constitutional Law of India, who invariably turned to
dictionaries for ascertaining the correct meaning of a word.
According to Collins English dictionary activism is a
policy of taking direct and often militant action to achieve
an end, esp. a political or social one. Websters New
Twentieth Century dictionary defines activism as the
doctrine or policy of being active or doing things with
decision. Another dictionary meaning is policy of vigorous
action.
In light of these meanings judicial activism would
denote a judiciary in which judges discharge their functions
in a vigorous and decisive manner to achieve an end. What
is that end? Dispensing justice with a view to righting
wrongs or fashioning remedies where none exist.
The thinking in the past was that the traditional role of
the judiciary is to merely declare the law and not to make
law. This fairy tale about judges not making law according
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to one jurist, is a childish function and it has now been

discarded. Certain degree of legislative activity is inherent
in the process of interpretation. The celebrated Justice
Holmes of the US Supreme Court recognised without
hesitation that judges do and must legislate, but they can do
so only interstitially; they are confined from molar to
molecular motions..
It is not generally known that even in private law there
have been notable instances of judicial activism which have
had beneficial consequences.
A classic instance of judicial activism in private law in
England is the landmark decision of the House of Lords in
Donoghue v. Stevenson in 1932, popularly known as the
Snail in the Ginger Beer case. The facts were that a
manufacturer of ginger beer had sold to a retailer ginger
beer in an opaque bottle. The retailer resold it to another
person, who gave the drink to a young woman. The ginger
beer contained the decomposed remains of a snail which
had found its way into the bottle at the factory. The young
woman became seriously ill and sued the manufacturer for
negligence. The issue was whether the manufacturer owed
to the consumer of the article a duty to take care that there
was no noxious element in the article.
Lord Atkin enunciated the legal principle in his
inimitable way: The rule that you are to love your
neighbour becomes in law: You must not injure your
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neighbour. Who then, in law, is my neighbour? The

answer seems to be persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation .
neighbour

Lord Atkin in Donoghue evolved the

principle which created a duty of care

emanating from a general relationship of proximity based

upon foreseeability of harm. Lord Atkin could certainly be
described as an activist judge.
About forty years later in 1970 Lord Reid in the House
of Lords decision in Home Office v. Dorset Yacht Co. further
developed the common law of negligence and evolved a
presumptive duty of care by extending the Donoghue
principle. The approach of the majority in House of Lords in
that case can again be described as an activist judicial
approach. However, one member of the House of Lords,
Viscount Dilhorne did not agree because according to him if
there should be a presumptive duty of care that is a matter
for legislature and not for the court. Mark the difference in
approach and outlook.
Another striking instance of judicial activism is the rule
about giving reasons for a decision even when the statute
does not expressly so provide. In 1992 Master of the Rolls
Lord Donaldson invoked the common law to require
tribunals to give reasons for their decisions.
The Privy Council in a judgment in 1999 opined that
although there was no express obligation to give reasons in
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the statute or the rules, such an obligation may nevertheless

be found to exist by operation of the common law and as a
matter of fairness.
The rule evolved by the judiciary about giving reasons
promotes good governance and fair administration because
it ensures transparency and openness in decision making. A
non-speaking unreasoned order is like the inscrutable face
of the sphinx. Above all it satisfies a basic requirement of
fairness and natural justice because the person who is
adversely affected must know why his application has been
rejected or the reason why his licence or permit has been
cancelled. This salutary development would not have been
possible but for judicial activism displayed by activist
judges. To that extent judicial activism has been a boon.
In countries where there is a Charter of Rights or a Bill
of Rights, judicial activism is much in advance. A classic
instance is the judgment of the US Supreme Court in
Griswold

v.

Connecticut,

popularly

known

as

the

Contraceptive case. There was a law in Connecticut which

made the use of contraceptives a criminal offence. Under
the statute the police could barge into a bed room to search
the sacred precincts of marital bedrooms for telltale signs of
used condoms. The law was challenged on the ground that it
breached the right of privacy. Now, privacy is not expressly
mentioned in the US Bill of Rights. However the US
Supreme Court deduced the right of privacy on the
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reasoning that various guarantees in the Bill of Rights

create zones of privacy. The minority dissented on the
ground that it was for the legislature to create a right of
privacy and not for the court. The same old lament.
The Supreme Court of the Republic of Ireland has also
adopted the judicial technique of spelling out fundamental
rights which are not expressly mentioned in the Irish
Constitution on the basis that there are rights which are
anterior to and are not solely derived from the Constitution.
The Supreme Court of Canada has also deduced fresh
fundamental rights which are not expressly mentioned in
the Charter.
I have given these examples to dispel the alarm bells
which have been ringing in some quarters and the
impression created that judicial activism is an infectious
disease which has recently afflicted our judiciary or that a
bunch of maverick judges has descended upon us with
disastrous consequences to our nation. This hulla balu is
totally misplaced
A little knowledge of history and research would
establish that from its inception our Supreme Court has
deduced or spelt out quite a few fundamental rights which
are not expressly mentioned in the Chapter on Fundamental
Rights. This judicial exercise is performed on the premise
that certain unspecified rights are implicit or inherent in the
express
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enumerated

guarantees.
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For

example,

our
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Constitution does not specifically guarantee freedom of the

press as a fundamental right. In several decisions of the
Supreme Court from

1950 onwards freedom of the press

has been held to be implicit in the guarantee of freedom of

speech and expression. Freedom of the press one of the
pillars of democracy has thus acquired the status of a
fundamental right thanks to activist judicial interpretation.
Our Supreme Court has deduced other fundamental
rights

which

are

not

expressly

mentioned

in

the

Constitution. For example, the right to privacy, the right to

travel abroad, the right to education, freedom from cruel
and

inhuman

punishment

or

treatment.

Can

anyone

seriously object to this activist judicial approach which has

enlarged the fundamental rights of our people. These
salutary developments have certainly been a boon.
Of the several important judgments delivered by our
Supreme Court the most significant and path-breaking is its
judgment

in

Keshavananda

Bharati

where

the

Court

propounded the unique doctrine of the basic structure of the

Constitution. I was Nani Palkhivalas junior in that case and
let me assure you that Nanis performance was superb, the
most magnificent of his forensic feats. Let me briefly explain
the ruling in Keshavananda Bharati case. There is a
provision in our Constitution for amending the Constitution.
It is Article 368. On a literal reading of the Article the power
of amendment is absolute and unlimited and any and every
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provision of the Constitution, including fundamental rights,

can be amended. The power of amendment as set out in
Article 368 is not subject to any limitation. Over a period of
time laws which were violative of fundamental rights were
put in a Schedule called the IXth Schedule and thereupon
these laws could not be challenged on the ground of
violation of fundamental rights. Several laws were inserted
in the IXth Schedule including those which had nothing to
do with agrarian reform. The Supreme Court ruled that the
power of amendment was not absolute but was subject to an
implied limitation namely that the power of amendment
cannot be exercised so as to abrogate the essential features
of the Constitution thereby damaging the basic structure of
the Constitution. According to the Supreme Court some of
the essential features of the Constitution are (a) the Rule of
Law; (b) Democracy; (c) Secularism; (d) Federalism and (e)
Judicial Review. The decision in Keshavananda Bharatis
case was the zenith of judicial activism.
The decision was initially much criticized, particularly
on the ground that the judges had, by the decision, in effect
amended the Constitution and exercised supra-legislative
functions by introducing limitations which are not to be
found in Article 368. This criticism is not without force. On
the other hand it must be remembered that thanks to this
doctrine of basic structure, no party having absolute
majority in either House of Parliament can effect a
constitutional
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amendment which would make India a

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theocratic State by providing that members of certain

communities or religion alone can hold the office of
President, Vice-President, Prime Minister and the Chief
Justice of India.

Thanks to the basic structure doctrine

provisions for free and fair elections cannot be repealed

from the Constitution, nor can it be provided that elections
would take place if and when Parliament determines instead
of every five years and thus make a mockery of democracy.
Thanks to the basic structure doctrine the judiciary cannot
be deprived of the power of judicial review nor can the rule
of law be abrogated.

Again thanks to this doctrine

federalism cannot be obliterated and States made vassals of

the Centre. These, to my mind, are tangible and substantial
benefits. In my view the basic structure doctrine has
certainly been a boon.
Criticism frequently made about judicial activism is
based on the doctrine of separation of powers. There is no
rigid wall of separation of powers in our Constitution.
Nonetheless the accepted position is that the three wing of
the State, namely, the legislature, the executive and the
judiciary have certain powers and functions assigned to
each of them under the Constitution and one wing of the
State should not trespass or intrude into the field reserved
for the other wings. Although there are no bright lines that
separate the role of the legislature, the executive and the
courts from one another, there are certain matters that are
pre-eminently within the domain of one or the other of the
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three wings of the State. For example, Whether diplomatic

relations should be maintained or severed with another
State or whether the Prime Minister should visit certain
countries or whether there should be a reduction of the
armed forces in Jammu & Kashmir or whether the Prime
Minister should visit Sri Lanka. These are matters purely in
the domain of the executive and obviously the judiciary has
no role to play in these matters, and no court has held or
ruled otherwise.
Our Supreme Court has ruled in more than one
decision beginning with the Bank Nationalisation case and
culminating in its landmark decision in Balco that it is not
within the domain of the courts nor the scope of the
judicial review to embark upon an enquiry as to whether a
particular public policy is wise or whether better public
policy can be evolved. Nor are the courts inclined to strike
down a policy merely because a different policy would have
been fairer or wiser or more scientific or more logical. In
the Bank Nationalisation case the main and powerful
argument of Nani that nationalisation of banks was not in
public interest was not accepted by the Supreme Court as
that issue related to the economic policy of the government.
However the Supreme Court has made it clear that if
the policy is in contravention of a constitutional provision or
it is in breach of a mandatory statutory provision or is mala
fide judicial intervention will be available. Where state
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policy is in conflict with the Constitution, courts have to

determine whether the State has failed to give effect to its
constitutional obligations. If in a given case the state has
failed to do so, the court is obliged by the Constitution to so
declare. If that constitutes an intrusion into the domain of
the executive, that is an intrusion mandated by the
Constitution itself. Invocation of the separation of powers
doctrine in such cases is misconceived and the Honble
Speaker Somnath Chatterjees periodic salvos against the
judiciary are unwarranted.
The directions given by the Supreme Court to the
Speaker of the Jharkhand Assembly in March 2005 were
going a bit too far in directing the Speaker exactly what to
do including, for example, asking for a video recording of
the proceedings and have been severely criticized. There is
certainly

force

consequences

if

in
the

this

criticism.

Supreme

But

Court

consider

had

the

refused

to

intervene. The partisan action to swear in a government

which did not have a majority, followed by efforts to prevent
an alternative government from being formed by another
combination of parties was against all canons of fair play
and in breach of well settled conventions. Refusal to
intervene would have been detrimental to the democratic
process. Besides, some of the directions given were to
ensure that there was free and fair voting and to obviate
complaints about the conduct of elections.

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Recently the Supreme Court had to deal with the

question whether Houses of Parliament in exercise of their
powers and privileges are competent to expel members for
indulging in the unethical and corrupt practice of taking
cash for asking questions in Parliament. The Supreme Court
held that Parliament did possess that power and that the
expediency and necessity of exercising that power are for
the determination of Parliament and State legislatures and
that is not a matter for the Courts. However the Supreme
Court further ruled that no one, howsoever lofty, can claim
to be the sole judge of the power given under the
Constitution and the exercise of judicial review regarding
the manner of exercise of power does not mean that
Parliaments function has been usurped by the judiciary. If a
citizen, whether a non-member or a member of the
legislature, complains that his fundamental rights have been
infringed it is the duty of the Supreme Court to examine the
merits of the said complaint and decide. Court may dismiss
the complaint as unfounded but if there is gross abuse of
power by Parliament or the State legislature, the Court will
set aside the unreasonable action in question. On a fair
reading of the judgment it would be apparent that there is
no real conflict between the judiciary and Parliament in
such cases.
However the vexed question is whether the court can
undertake primary legislative activity. In other words can
the judiciary make a law where none exists even though
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there is crying need for it. It is argued that the remedy lies
with Parliament or the State legislatures and not in judicial
law making and that the judiciary cannot usurp the
functions of Parliament and legislatures. This argument
though not without substance fails to notice that in our
country experience has demonstrated that it is vain to
invoke Parliament or the legislatures. This is evident from
the fact that measures have hardly been taken for years to
remedy several social evils.
Consider a striking instance of judicial legislation. In
the case of Vishaka the Supreme Court was confronted with
the persistent and pervasive problem of sexual harassment
in the workplace. There was no legislation dealing with this
evil. The Court referring to various international covenants
and taking note of the absence of domestic law occupying
the field issued several directions. These directions included
definition of sexual harassment, the preventive steps that
can

be

taken,

the

disciplinary

action

and

criminal

proceedings that may be adopted for sexual harassment.

The Court also devised a complaints mechanism and a
complaints committee. The Court emphasised that these
directions would be binding and enforceable in law until
suitable legislation is enacted to occupy the field. This
judgment, no doubt laudable in intent and content and also
beneficial to the victims of sexual harassment, is a classic
instance of pro tem ad-hoc judicial legislation. It is a matter

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of regret and shame that as yet no legislation has been

enacted by Parliament.
Strictly speaking the Supreme Court judgment in
Vishaka did breach the principle of separation of powers.
But please remember that every country has to work out its
salvation according to its specific needs and peculiar
problems. It is the peoples welfare and not Montesqueus
18th century treatise on separation of powers, which is
relevant and should be predominant.
The

problems

and

controversies

about

judicial

overreach have arisen namely in the field of Public Interest

Litigation [PIL] where exercise of judicial power at times
has gone haywire. It is often forgotten that the genesis of
PIL was for the protection of the fundamental rights of
persons who on account of poverty and severe economic and
social disabilities cannot themselves approach the court and
to prevent continued violation of their fundamental rights
with impunity.
In this context two aspects should be kept in mind.
Violation of human rights often take place owing to nonimplementation of laws. For example, inaction to enforce
laws enacted to protect young children in workshops or
prohibiting their employment in dangerous occupations or
laws and regulations to prevent pollution. One of the main
reasons for judicial intervention is the persistent failure of
the executive bordering on callousness to implement the
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laws made by Parliament and the State legislatures. When

continued

derelictions

of

statutory

and

constitutional

obligations resulting in gross violations of fundamental

rights are brought to the notice of the Court, it cannot fold
its hands and refuse to act. Unlike the executive or the
legislature,

the

judiciary

can

neither

prevaricate

nor

procrastinate. It must promptly respond. In most cases the

Court is ordering the executive to implement the laws made
by the legislature. Thereby it is not running the government
nor has it taken over the administration of the country.
However it cannot be denied that the judicial pendulum
in PIL can swing and on occasions has swung erratically.
Some orders and directions which have been passed are
beyond the judicial sphere. The judiciary cannot direct the
administration to construct roads and erect buildings, to
beautify a dilapidated railway station, to secure lands in a
particular locality for accommodating certain persons, to
appoint managers at a remuneration fixed by the Court or to
give ad-hoc directions for huge monetary payments for
victims of riots or natural calamities. Such orders are in the
realm of the legislature and the executive and have serious
fiscal and budgetary implications and can be regarded as
baneful.
The reason for such indefensible orders is the belief
some judges have instilled in themselves that the judiciary
can solve all the problems that afflict our nation. It must
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always be remembered that PIL is not a pill for every ill.

Every matter of public interest cannot be the basis of a PIL,
e.g. increase in the price of onions or revision of railway
fares or the problem of trains not running on time. It is also
necessary to ensure that genuine PIL does not degenerate
into Private Interest Litigation, Political Interest Litigation
and Publicity Interest Litigation. These 3 Ps are the perils of
PIL and must be avoided. Weakness for publicity affects
judges lawyers and litigants alike. Vanity is not the exclusive
monopoly of Hollywood and Bollywood. Lawyers and judges
are not immune from this human weakness. They love to see
their names in bold headlines in the print media and are
thrilled to watch their bright faces in the electronic media.
Entertaining frivolous PILs leads to waste of judicial
time and increases the long queue of litigants crying for
years for justice. Such petitions should be dismissed at the
threshold as repeatedly said by Justice Pasayat. Besides
passing fanciful orders in PILs places an undue burden on
the administration and moreover detracts from the immense
utility of PIL and gives it a bad name. It also provides a
ready excuse to some for attacking the judiciary. In such
situations judicial activism has baneful consequences.
Another note of caution is necessary. Judicial activism
must not be confused with judicial showmanship or judicial
adventurism. Judicial activism does not require a trigger
happy
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approach

of

striking
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down

laws

which

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unpalatable to the personal predilections of judges. Judicial

activism does not warrant venturing into fields where the
judiciary does not have the requisite expertise.
The basic problem is that justice is not dispensed by
slot machines but by human beings. It must be remembered
that perfection is not the attribute of common humanity and
judges are after all human beings. They are not celestial
bodies endowed with the gift of infallibility. Therefore
judicial aberrations do occur occasionally. But that is no
reason to conclude that the judiciary has taken over running
of the country. It is noteworthy that vociferous criticism of
judicial activism and activist judges stems from bureaucrats
and ministers and wielders and holders of power who resent
criticism of their actions and are furious when their orders
or decisions are set aside by the courts. The public has no
complaint or grievance about judicial activism. In fact,
public opinion is strongly in favour of it except when some
judges pass some fanciful orders.
In fairness it must be recognised that numerous
persons have benefited by judicial orders in PIL. E.g. undertrial prisoners languishing in jails for inordinate periods,
bonded labourers, inmates of asylums and care-homes living
in

sub-human

children

conditions,

working

in

workers

hazardous

in

stone

occupations,

quarries,
women

suffering the trauma of sexual harassment and other

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exploited segments of society. All things considered PIL has

been a mixed blessing.
In conclusion I would like to point out that there is no
universal prototype of judicial activism. It largely depends
on the prevailing situation in a particular country, its laws or
absence of laws and the level and quality of public
administration. Quest for justice, especially social justice
and relief of human suffering is the paramount motivation
for judicial activism. And remember that fundamental rights
of our people will remain ornamental show pieces and
become teasing illusions unless they are translated into
living realities and become meaningful at least to some
sections of the downtrodden and exploited segments of
Indian

humanity

That

depends

on

the

outlook,

the

temperament, the approach and indeed the personality of

the judge. Is the judiciary mainly concerned with laws of
property, contracts and amalgamations and mergers of
companies? Or is it deeply concerned to uphold and protect
the basic human rights of the people especially those of the
exploited and the downtrodden? Is it taking human suffering
seriously and responding to it with sensitivity?

Judicial

activism will certainly be a boon if there are sensitive,

sensible and courageous judges who do not flinch [faulter]
in deciding against the government of the day, judges who
are not swayed by popular praise or resentment, judges who
do not make judicial restraint a pretext for self-abnegation,
judges who exercise judicial power actively, vigorously, not
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extravagantly and without straying into forbidden fields.

And blessed is the country which possesses such judges.
And I venture to say that, occasional judicial aberrations
apart, India is one such country, and I thank the Almighty
for that and pray that their tribe may increase and judicial
activism proves beneficial to We the People of India and
enables them to live a life of dignity and fully realise their
human personality.

..

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