JUDICIAL ACTIVISM V.

JUDICIAL OVERREACH

RESEARCH PAPER

FOR THE FULFILLMENT OF

COURSE : JUDICIAL REVIEW IN INDIA

SUBMITTED TO: SUBMITTED BY:

 Acknowledgement
I have taken efforts in this project. However, I might have not done it only on my own. I
would like to express my gratitude to them.

I would like to thank ___________for helping me select the area of my research and then
helping me to understand it. I would like to express my special gratitude to her and School of
Law, G.D. ___________for their guidance and supervision and also for providing necessary
information regarding the paper.

I would also like to thank my parents and my classmates for their co-operation and
encouragement.

Being the first academic research I have done, it was a nice experience and a great learning
process because of all of those who helped me to complete it.

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 Table Of Contents
Acknowledgement………………………………………………………pg.2

List of Cases…………………………………………………………….pg.4

1. Preface…………………………………………………………………………....pg.5
2. Introduction……………………………………………………………………….pg.7
3. Development of judicial activism in India………………………………………..pg.7
4. Constitutional basis of judicial activism………………………………………….pg.9
5. Comparison between PIL in India and United States…………………………….pg.11
6. Judicial activism: As a vehicle for social change……………………………...….pg.12
7. Judicial activism: Imbalance of power……………………………………...…….pg.16
8. Judicial activism and my opinion…………………………………………………pg.20
9. Conclusion………………………………………………………………………...pg.21

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 List of Cases
A.D.M Jabalpur v. S. Shukla
A.K. Gopalan v. State of Madras
Asif Hameed v. State of J. & K.
Bandhua Mukti Morcha v. Union of India & Ors
Citizens for Democracy through its President v. State of Assam and Others
D.K. Basu v. State of West Bengal
Divisional Manager, Aravali Golf Club and anr. V. Chander Hass and anr
Dr. Upendra Baxi v. State of Uttar Pradesh and ors.
Francis Coralie v. Union Territory of Delhi
Golaknath v. State of Punjab
Hussainara Khatoon v. State of Bihar
I.R.Coelho(dead by) by legal representative v. State of Tamil Nadu
Janta Dal v. H.S. Chhaudhary
Jharkhand party v. State of Jharkhand and anr.
Keshvananda Bharti v. State of Kerala
M.C. Mehta v. State of Tamil Nadu & Others .
M.C. Mehta v. Union of India & Others
Menka Gandhi v. Union of India
Miss Veena Sethi v. State of Bihar
Mohd. Ahmed Khan v. Shah Bano Begum
Mumbai Kamgar Sabhha v. Abdulbhai
Naveen Kohli v. Neelu Kohli
Naz Foundation v. Govt. of NCT of Delhi
Ram Jawaya Kapoor v. State of Punjab
S.P. Gupta v. Union of India
Satish Sitole v. Ganga
Smt. Indira Gandhi v. Raj Narayan
Sunil Batra v. Delhi Administration & Others
Tata cellular v. Union of India
Union of India v. Deoki Nandan Aggarwal
Vishaka & Ors. v. State of Rajasthan & Ors
Vishnu Dutt Sharma v. Manju Sharma

4
 Preface
The research paper deals with judicial activism and its overreach. The main purpose of the
judiciary is to impart justice. So we will first know ‘what is justice’?

Justice is defined differently by different people. To quote a few:

Oxford dictionary defines justice simply as “just behavior or treatment”; the quality of being
fair and reasonable.

Webster dictionary defines it as ‘the rendering to everyone his due or right; just treatment;
requital of desert; merited reward or punishment; that which is due to one’s conduct or
motives’.

Black’s law defines justice as ‘protecting right and punishing wrongs using fairness; it is
possible to have unjust laws, even with fair and proper administration of the law of the land
as a way for all legal systems to uphold this ideal”.

Socrates’ justice is intimately connected with fairness; the idea that people should get what
they deserve.

Thus as we can see there is no single and universal definition of justice.

But it is important to understand what is justice, to know what is judiciary, what does it do
and for whom?

To understand judicial activism and many facets let’s have a look at the functions of
judiciary:-

1. Judicial function: first and foremost the function of judiciary is to give justice. The
court after determining the facts of the case, applies law and pronounce judgments. In
this way it also interprets the law.
2. Law –making functions: when in any case there is no prevailing law the courts
pronounce judgments based on natural law which in form of precedents becomes law
and is followed in similar cases.
3. Guardian of the constitution: when laws are in conflict with the constitution of the
country, the judiciary has power to declare such laws unconstitutional.
4. Advisory function: the judiciary performs advisory function when asked by the
president in any legal matter, although neither the judiciary is bound to give advice
nor the president is bound to accept it.
5. Protection of fundamental rights: the judiciary defends the fundamental rights of
individuals in case of the violation of their rights. It was under this function the
judicial activism sprouted and took the present form.
6. Supervisory function: the higher courts have the power of supervision over the lower
courts.
7. Miscellaneous functions: apart from them courts perform several non-judicial
functions like administration of property cases, handling minors, etc..

5
The courts we can see performs several functions ranging from judicial, to legislative, to
administrative and do not only perform the conventional function of imparting justice. Not
only judiciary performs other functions but legislature also has some judicial and executive
power and similarly the executive can perform many legislative and judicial powers.

Thus the theory of separation of powers though exists is not completely applicable because
the three pillars of the government i.e. the legislature, the executive and the judiciary forms a
watershed and overlaps each other and cannot function properly in isolation. This is where
the system of checks and balances come into picture because giving absolute powers to one
body makes it arbitrary. But it should be kept in mind that in disguise of checks and balances
one body should not step over the jurisdiction of the other and should respect each other’s
power.

6
 Introduction

Judicial activism is used to define the unconventional role played by the courts in giving
exceptional value judgments on the basis of morality and fairness to the aggrieved party,
when law is silent or sometimes contrary.

Webster’s dictionary defines Judicial activism as- the practice in the judiciary in protecting or
expanding individual rights through decisions depart from established precedents or are
independent of or in opposition to supposed constitutional or legislative intent.”1

According to Black’s law dictionary-“ Judicial activism is a judicial philosophy which

motivates judges to depart from the traditional precedents and new social policies.’2

Public interest litigation (PIL) and social action litigation (SAL) are sociological strategies of
judicial activism. They depicts comprehensive expansion of the judicial process in the
complicated task of mediating between social reality and social change, in response to social
activism. Initially it was considered a strategy to enable public spirited citizens and social
activists to mobilize favorable judicial concerns on behalf of the victimized and oppressed
groups. It has today become a powerful weapon of the judicial activism for involvement in
social and economic welfare of the society.

Supreme court in a case expressed public interest litigation as- “a legal action initiated in a
court of law for the enforcement of public interest or general interest in which the public or
class of community have pecuniary interest.3

METHODOLOGY

Development of judicial activism in India

Prior to 1980s, only the aggrieved party could personally go to courts of justice and seek
remedy for his grievance and any other person who was not personally affected could not
knock the doors of justice in place of the victim or the aggrieved party. In other words, only
the affected parties had the locus standi (standing required in law) to file a case and continue
the litigation and the non affected persons had no locus standi to do so. Therefore as a result,
there was hardly any link between the rights guaranteed by the Constitution of India on the
one hand and the vast majority of illiterate, poor and oppressed citizens on the other.

1
Refer to http://www.Merriam-Webster’s dictionary of law
2
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal History,(2006) p.378
3
Janta Dal v. H.S. Chhaudhary, AIR 1993 SC 892

7
However, this entire scenario gradually changed when the post emergency Supreme Court
tackled the problem of access to justice by people through radical changes and alterations
made in the requirements of locus standi and of party aggrieved. The fruitful efforts of Justice
P. N. Bhagwati and Justice V. R. Krishna Iyer were instrumental of this juristic revolution of
eighties to convert the apex court of India into a Supreme Court for all Indians.

In December 1979, a lady advocate of Supreme Court of India, Kapila Hingorani had filed a
petition regarding the condition of the prisoners detained in the Bihar jail, whose suits were
pending in the court. The special thing about this petition was that it was not filed by any
single prisoner; rather it was filed by various prisoners of the Bihar jail. The case got filed in
the Supreme Court before the bench headed by Justice P. N. Bhagwati. The petition was filed
by a lady prisoner named, Hussainara Khatoon, and therefore the petition came to be known
as Hussainara Khatoon v. State of Bihar4. In this case, the Supreme Court upheld that the
prisoners should get benefit of free legal aid and fast hearing. Because of this case 40,000
prisoners, whose suits were pending in the court, were released from the jail. There after
many cases like this have registered in the Supreme Court.

The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined
in the Part IV, Directive Principles Of State Policy Article 39A of the Constitution of India to
protect and deliver prompt social justice with the help of law. Article 39A was added to
provide for equal justice and free legal aid and states that the state shall secure that the
operation of legal system promotes justice on a basis of equal opportunity, and shall, in
particular, provide free legal aid, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities. Before the 1980s, only the
aggrieved party could approach the courts for justice. After the emergency in 1975 the high
court reached out to the people, devising a means for any person of the public (or an NGO) to
approach the court seeking legal remedy in cases where the public interest is at stake.
Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit
PILs in court. Filing a PIL is not as cumbersome as a usual legal case; there have been
instances when letters and telegrams addressed to the court have been taken up as PILs and
heard.

The Court entertained a letter from two professors at the University of Delhi seeking
enforcement of the constitutional right of inmates at a protective home in Agra who were
living in inhuman and degrading conditions5. In Miss Veena Sethi v. State of Bihar6, the court
treated a letter addressed to a judge of the court by the Free Legal Aid Committee
in Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President v.
State of Assam and Others7, the court entertained a letter from Shri Kuldip Nayar (a
journalist, in his capacity as President of Citizens for Democracy) to a judge of the court
alleging human-rights violations of Terrorist and Disruptive Activities (Prevention)

4
AIR 1979 SC 1360.
5
Dr. Upendra Baxi v. State of Uttar Pradesh and ors. (1998) 9 SCC 388.
6
AIR 1983 SC 339.
7
AIR 1996 SC 2193.

8
Act (TADA) detainees; it was treated as a petition under Article 32 of the Constitution of
India.

Therefore as a result of PIL development any citizen of India or any consumer groups or
social action groups can approach the apex court of the country seeking legal remedies in all
cases where the interests of general public or a group or section of people are at stake.
Further, public interest cases could be filed without investment of heavy court fees as
required in private civil litigation.

The Supreme Court, through public interest litigation, has found a new historical basis for the
legitimation of judicial power and has acquired new credibility with the people. This
development has been the result of intense social activism on the part of some of the justices
such as Justice P. N. Bhagwati and Justice V. R. Krishna Iyer of the Supreme Court of India.
The portals of the Court are thrown open to the poor, the ignorant and the illiterate, and their
cases have started coming before the Court through public interest litigation.

Again in Mumbai Kamgar Sabhha v. Abdulbhai8 and in S.P. Gupta v. Union of India9

The court justified such extension of standing in order to enforce rule of law and provide
justice to disadvantaged sections of society. Furthermore, the Supreme Court observed that
the term ‘‘appropriate proceedings’’ in Art.32 of the Constitution does not refer to the form
but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a
Fundamental Rights, any form will do. This interpretation allowed the Court to develop
epistolary jurisdiction by which even letters or telegrams were accepted as writ petitions10.

Constitutional basis of judicial activism

Part III of the Indian Constitution enumerates a Bill of Rights within Articles 12 to 32.
Article 13 provides that any laws which are inconsistent with the Constitution are void. While
Article 13 does not directly speak of the Supreme Court of India having the power to declare
the law unconstitutional, this has been taken to be the structural assumption of the
Constitution and in particular of Articles 13 and 32. Article 14 enshrines the equal protection
of the laws and equality before the law, and article 15 is against discrimination of any type.
Article 19 is one of the most fundamental articles, safeguarding freedom of speech,
association, assembly, the right to move and reside within the territories of India, and to
practice any trade or profession.

The right to life and liberty is enshrined in Article 21, and it has been the cornerstone in the
establishment and development of PIL in India. The courts have expanded the meaning of

8
AIR 1976 SC 1455.
9
AIR 1982 SC 149.
10
Sunil Batra v. Delhi Administration,(1978) 4 SCC 494; see also Francis Coralie v. Union Territory of Delhi, AIR
1981 SC 746.

9
this Article to ensure safe and dignified living for the people of India. Religious freedoms are
covered by Articles 25-27, and cultural minorities are protected by Articles 28-30.

Article 32 provides the teeth to enforce the preceding provisions. An individual is granted the
right to move the Supreme Court to provide a remedy for breach of any of the more particular
rights mentioned above. The Supreme Court has a wide range of such remedies at its
disposal11,and the right guaranteed by Article 32 cannot be suspended except as otherwise
provided by the Constitution12. The importance of Article 32 was emphasized by Dr
Ambedkar, one of the principal architects of the Constitution, who regarded this article as the
very soul and heart of the Constitution of India.

Whereas Part III of the Constitution is entitled Fundamental Rights, Part IV thereof deals
with ‘Directive Principles of State Policy’. Article 37 states explicitly that the principles of
Part IV are not enforceable in any Court, but affirms that they are nonetheless fundamental to
the governance of the country and the Article imposes an obligation on the State to comply
with these principles when making laws. Thus, Article 38 directs the State to reduce
inequalities in status and opportunity, and Article 39 mandates that the distribution of
society’s resources must be such as to serve the common good. Subsequent articles within
Part IV gives out the socio-economic obligations which the State must pursue within
particular areas.

Apart from that in many cases also the inherent judicial activism could be perceived which
became the leading judgements and cornerstones for big changes. For example:

A.K. Gopalan v. State of Madras13

In Golaknath v. State of Punjab14, court became the protector of fundamental rights.

In Keshvananda Bharti v. State of Kerala15 , the court propounded the theory of Basic
Structure which in itself was activism.

In Smt. Indira Gandhi v. Raj Narayan16 ,A.D.M Jabalpurv. S. Shukla17 ,Menka Gandhi v.
Union of India18 ,Mohd. Ahmed Khan v. Shah Bano Begum19 ,I.R.Coelho(dead by) by lr
representative v. State of Tamil Nadu20, the Supreme court became liberal and started liberal
interpretation of various provisions for protection of fundamental rights.

11
Article 32(2) of the Constitution of India.
12
Article 32(4) of the Constitution of India.
13
AIR 1950 SC 27.
14
AIR 1967 SC 1643.
15
AIR 1973 SC 1461.
16
AIR 1975 SC 2299.
17
AIR 1976 SC 1207.
18
AIR 1978 SC 597.
19
AIR (1985) 2 SCC 556.
20
(2007) (1 SC 137).

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Thus we can say that Conceptual Foundation of Public Interest Litigations is derived from the
Constitution.

Comparison between PIL in India and United States

It is argued that whereas the PIL in the United States has focused on “civic participation in
the governmental decision making”, the Indian PIL discourse was directed against “state
repression or governmental lawlessness” and focused primarily the rural, the poor, and the
oppressed. Typically (in US), PIL sought to represent “interests without groups” such as
consumerism or environment. Given the nature of state and federal politics, PIL marched
with public advocacy outside courts through well established mechanisms like lobbying. One
result of this comparison is that it is argued that PIL in India should be labelled as social
action litigation (SAL) as PIL in India was born in connection to the evolution of PIL in
United States. However, in India PIL and SAL are used synonymously, whereas the popular
term is still PIL.

In brief, the PIL movement in the United States involved innovative uses of the law, lawyers
and courts to secure greater fidelity to the parlous notions of legal liberalism and interest
group pluralism in an advanced industrial capitalistic society.

Indian social action groups should know the essence of the American PIL experience, and
particularly the structural reasons for its failures and successes.

Two observations could be made to designate PILs as SALs:

1. The term ‘‘social action’’ probably implied the role that law could/should play in
social engineering21. Courts could help in providing an official recognition to the
voices of minorities or destitute that might be ignored otherwise, but it would be
unrealistic to expect that they could achieve social transformation on their own.
Because the law made through courts is judge made and not made by legislature.
2. PILs in India have changed a lot. They are not limited to just espousing the interests
of disadvantaged sections of society or to redressing state repression and
governmental lawlessness. In fact, the focus of PIL in India has shifted from poor to
the middle class and from redressing state exploitation of disadvantaged groups to
pleas for civic participation in governance.

21
‘Social engineering’ is a term propounded by Dean Roscoe Pound.

11
 Judicial Activism: As a Vehicle of Social change

By taking up the issues affecting the people, PIL truly became a vehicle to bring social
revolution through constitutional means, something that the founding fathers had hoped.

Judicial activism became an instrument to promote rule of law, demand fairness and
transparency, fight corruption in administration, and enhance the overall accountability of the
government agencies. The underlying justification for these public demands and the judicial
intervention was to strengthen constitutionalism—a constant desire of the civil society to
keep government powers under check. This resulted in the judiciary giving directions to the
government to follow its constitutional obligations.

The Indian PIL jurisprudence has not only contributed to Indian society but also contributed
to the trans-judicial influence; especially in South Asia, especially in countries like Pakistan,
Sri Lanka, Bangladesh and Nepal, the Indian PIL cases have been cited to develop their own
PIL jurisprudence. In a few cases, even Hong Kong courts have cited Indian PIL cases, in
particular cases dealing with environmental issues. Given that the civil society that is
following the development of PIL in China is familiar with the Indian PIL jurisprudence 22, it
is possible that Indian PIL cases might be cited even before the Chinese courts in the future.

The two ways in which judicial activism has helped the general public are:

1. Vigilant citizens of the country can find an inexpensive legal remedy because there is
only a nominal fixed court fee involved in this.
2. The litigants can focus attention on and achieve results pertaining to larger public
issues, especially in the fields of human rights, consumer welfare and environment.

Judicial activism has helped the Indian judiciary to gain public confidence and establish
legitimacy in the society. The role of an independent judiciary in a democracy is of course
important. But given that judges are neither elected by public nor are they accountable to
public or their representatives ordinarily, therefore it becomes critical for the judiciary to be
seen by the public to be not only independent but also in touch with social realities.

In the following cases judicial activism has played an important role:-

Sunil Batra v. Delhi Administration & Others23 The Court departed from the traditional rule
of standing by authorizing community litigation. The Court entertained a writ petition from a
prisoner, a disinterested party, objecting to the torture of a fellow prisoner. Significantly,

22
China Labour Bulletin, Public Interest Litigation in China: A new force for social justice(Research Reports,
October 10,2007)
23
(1978) 4 SCC 494.

12
citing “people’s vicarious involvement in our justice system with a broad-based concept of
locus standi so necessary in a democracy where the masses are in many senses weak,” the
Court permitted a human rights organization to intervene in the case on behalf of the victim.
This case pertained to the solitary confinement and torture of Sunil Batra, a prisoner who had
been sentenced to death. His appeal was pending. The Court in this case also ruled that the
Right to Life includes the right to live with dignity. Life, it said was not just mere animal
existence.

Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna24 P. N. Bhagwati, J.
has observed that “today, unfortunately, in our country the poor are priced out of the judicial
system with the result that they are losing faith in the capacity of our legal system, about
changes in their life conditions and to deliver justice to them. The poor in their contact with
the legal system have always been on the wrong side of the line. They have always come
across ‘law for the poor” rather than law of the poor’. The law is regarded by them as
something mysterious and forbidding–always taking something away from them and not as a
positive and constructive social device for changing the social economic order and improving
their life conditions by conferring rights and benefits on them. The result is that the legal
system has lost its credibility for the weaker section of the community. In this case, the
Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing.

S.P. Gupta v. Union of India25-In this case, Justice Bhagwati altogether dismissed the
traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the
Court awarded standing to advocates challenging the transfer of judges during Emergency.
Describing the traditional rule as an “ancient vintage” of “an era when private law dominated
the legal scene and public law had not been born,” the Court concluded that the traditional
rule of standing was obsolete. In its place, the Court prescribed the modern rule on standing:

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of

persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate
class of persons is by reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of the public
can maintain an application for an appropriate direction, order or writ, in the High Court
under Article 226, and in case of breach of any fundamental right, in this Court under
Article 32.”

Bandhua Mukti Morcha v. Union of India & Ors.26 - The court entertained a petition even of
unregistered Association espousing the cause of over down- trodden or its members
observing that the cause can be espoused by any person having no interest in the matter.
Carpet industries in Uttar Pradesh employed children, under the age of 14, where they were

24
AIR 1979 SC 1360.
25
AIR 1982 SC 149.
26
AIR 1984 SC 802.

13
“being treated as slaves” and were “subjected to physical torture.” The Court immediately
commissioned a report to determine whether children under the age of 14 were employed in
the carpet industry. Subsequently the Court appointed a committee to report (the Report) on
the exploitation of children in the carpet industry.

M.C. Mehta v. State of Tamil Nadu & Others 27:The Court was dealing with the cases of child
labour and the Court found that the child labour emanates from extreme poverty, lack of
opportunity for gainful employment and intermittency of income and low standards of living.
The Court observed that it is possible to identify child labour in the organized sector, which
forms a minuscule of the total child labour, the problem relates mainly to the unorganized
sector where utmost attention needs to be paid.

D.K. Basu v. State of West Bengal 28:This Court observed that the custodial death is perhaps
one of the worst crimes in a civilized society governed by the rule of law. The rights inherent
in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously
protected. The expression “life or personal liberty” in Article 21 includes the right to live
with human dignity and thus it would also include within itself a guarantee against torture
and assault by the State or its functionaries. The precious right guaranteed by Article 21
cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except
according to the procedure established by law by placing such reasonable restrictions as are
permitted by law. The Court gave very significant directions which are mandatory for all
concerned to follow.

Vishaka & Ors. v. State of Rajasthan & Ors.29: This Court gave directions regarding
enforcement of the fundamental rights of the working women under Articles 14, 19 and 21 of
the Constitution. The Court gave comprehensive guidelines and norms and directed for
protection and enforcement of these rights of the women at their workplaces.

M.C. Mehta v. Union of India & Others 30:This case relates to pollution caused by the trade
effluents discharged by tanneries into Ganga river in Kanpur. The court called for the report
of the Committee of experts and gave directions to save the environment and ecology. It was
held that “in Common Law the Municipal Corporation can be restrained by an injunction in
an action brought by a riparian owner who has suffered on account of the pollution of the
water in a river caused by the Corporation by discharging into the river insufficiently treated
sewage from discharging such sewage into the river. But in the present case the petitioner is
not a riparian owner. He is a person interested in protecting the lives of the people who make
use of the water flowing in the river Ganga and his right to maintain the petition cannot be
disputed. The nuisance caused by the pollution of the river Ganga is a public nuisance, which
is widespread in range and indiscriminate in its effect and it would not be reasonable to
expect any particular person to take proceedings to stop it as distinct from the community at
large. The petition has been entertained as a Public Interest Litigation. On the facts and in the

27
(1996) 6 SCC 756.
28
(1997) 1 SCC 416.
29
(1997) 6 SCC 241.
30
(1988) 1 SCC 471.

14
circumstances of the case, the petitioner is entitled to move the Supreme Court in order to
enforce the statutory provisions which impose duties on the municipal authorities and the
Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974.

M.C. Mehta v. Union of India & Others31- In this case, the court observed that in order to
preserve and protect the ancient monument Taj Mahal from sulphur dioxide emission by
industries near Taj Mahal, the court ordered 299 industries to ban the use of coke/coal. The
court further directed them to shift-over to Compressed Natural Gas (CNG) or re-locate them.

M.C. Mehta v. Union of India & Ors.32: A project known as “Taj Heritage Corridor Project”
was initiated by the Government of Uttar Pradesh. One of the main purpose for which the
same was undertaken was to divert the River Yamuna and to reclaim 75 acres of land
between Agra Fort and the Taj Mahal and use the reclaimed land for constructing food
plazas, shops and amusement activities. The Court directed for a detailed enquiry which was
carried out by the Central Bureau of Investigation (CBI). On the basis of the CBI report, the
Court directed registration of FIR and made further investigation in the matter. The court
questioned the role played by the concerned Minister for Environment, Government of Uttar
Pradesh and the Chief Minister, Government of Uttar Pradesh. By the intervention of the
Court, the said project was stalled.

Naz Foundation v. Govt. of NCT of Delhi 33- This case was filed to repeal Section 377 of the
Indian penal Code. It was led by the Naz Foundation (India) Trust, a non-governmental
organization, which filed a lawsuit in the Delhi High Court in 2001, seeking legalisation of
homosexual intercourse between consenting adults In 2003, the Delhi High Court refused to
consider a petition regarding the legality of the law, saying that the petitioners had no locus
standi in the matter. Naz Foundation appealed to the Supreme Court of India against the
decision of the High Court to dismiss the petition on technical grounds. The Supreme Court
decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and
sent the case back to the Delhi High Court to reconsider it on the merits. The Court located
the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21
of the Constitution, and held that criminalization of consensual gay sex violated these rights.

31
AIR 1997 SC 734.
32
(2007) 1 SCC 110.
33
WP(C) No. 7455/2001 (July 2,2009)

15
 Judicial Overreach: Imbalance of power

Per-se judicial activism is not problematic however in the course dispensation of justice
sometimes correction of an executive order or removing some legislative lacuna is required in
such situation the court perform political decision making and the question of balancing of
judicial activism and the separation of power arises34

In recent years, PILs have been brought not only for the violation of Fundamental rights but
also for a various other issues. The judiciary, for instance, has addressed issues such as: the
constitutionality of the Government’s privatisation and disinvestment policies, defacing of
rocks by painted advertisements, the danger to the Taj Mahal from a refinery, pollution of
rivers, relocation of industries out of Delhi, lack of access to food, deaths due to starvation,
use of environment-friendly fuel in Delhi buses and regulation of traffic, out of turn allotment
of government accommodation, prohibition of smoking in public places, arbitrary allotment
of petrol outlets, investigation of alleged bribe taking, employment of children in hazardous
industries, rights of children and bonded labours, extent of the right to strike, right to health,
right to education, sexual harassment in the workplace, and female foeticide and infanticide
through modern technology.

Judicial activism has an important role to play in the civil justice system as it affords a ladder
to justice to disadvantaged sections of society, some of which might not even be well-
informed about their rights. Furthermore, it provides an avenue to enforce diffused rights for
which either it is difficult to identify an aggrieved person or where aggrieved persons have no
incentives to knock at the doors of the courts. PIL could also contribute to good governance
by keeping the government accountable. Last but not least, PIL enables civil society to play
an active role in spreading social awareness about human rights, in providing voice to the
marginalised sections of society, and in allowing their participation in government decision
making.

However, over the years a new type of activism has started. Examples of this type of activism
are innumerable. The judiciary in garb of judicial activism has disturbed the system of
separation of powers and encroached on areas of legislature and executive, taking many of its
functions in it’s own hands. It has laid policies and guidelines in various cases; for instance in
the interest of preventing pollution, the Supreme Court ordered control over automobile
emissions, air, noise and traffic pollution, wearing of helmets, disposal of garbage, gave order
for parking charges, cleanliness in housing colonies, made compulsory wearing of seat belts,
prevention of ragging, collection and storage in blood banks, etc..

34
See also Surat Singh, “JUDICIAL ACTIVISM-HOW WISE, HOW OTHER WISE” In K.Mahesh Bishwajit
Bhattacharya (ed.) Judging the Judges (1999) pp. 141, 142 and accompanying text;

16
Recently Supreme Court ordered the most complex engineering of the interlinking of rivers.
The court must not give such orders without thinking of the after effects of it and resources
needed for such a gigantic task.

In Tata cellular v. Union of India35, the apex court itself observed that the court must not
embarrass the administrative authorities and must realize that administrative authorities have
expertise in the field of administration.

The court passed orders banning pasting of black films on auto mobile windows. It excluded
tourists from entering core areas of tiger reserves. Suo moto the court took notice of forceful
eviction of Baba Ramdev from Ramlila maidan. All these was done in the name of
enforcement of fundamental rights, but no such rights were involved in these cases.

The court made itself the monitor of investigating and prosecution agencies who failed to
investigate and prosecute the government officials, for instance Jain Hawala case, Fodder
scam, the Taj corridor case, and the 2G spectrum case. The Supreme Court in 1993, issued
orders on the conduct of military operations in Hazratbal, Kashmir and the court ordered that
the provision of food of 1,200 calorific value should be supplied to hostages. In Jharkhand
Legislative Assembly case, the court ordered the Assembly to conduct a Motion of
confidence and ordered the speaker to conduct proceedings according to prescribed agenda
and not to entertain any other business. Its proceedings were ordered to be recorded for
reporting to the court36. These orders were made in spite of Article 212 of the Constitution
which states that courts are not to enquire into any proceedings of the legislature.

When the court monitored the distribution of food-grains to people below poverty line, even
Prime minister reminded the court of its interference with the policies of the government.

The research paper is concerned more with the controversy between separation of power and
judicial activism. There are many cases where judiciary played an active role. On the other
hand judiciary abstained itself from interfering in the respective sphere of the executive and
the legislature for ex:-

In Ram Jawaya Kapoor v. State of Punjab37. The Court said our constitution does not
recognize separation of powers absolutely but different branches of govt. have been
differentiated.

Similarly, in Union of India v. Deoki Nandan Aggarwal,38 the apex court said that it cannot
direct the legislature to make a particular law.

The judges themselves are pointing out the overreach bi judiciary. For instance Delhi High
Court recently dealt with subjects ranging from criteria for nursery admission, drinking
water, free beds on hospitals, on public ground, misuse of ambulances, air pollution in Delhi,

35
AIR 1996 SC 11
36
Jharkhand party v. State of Jharkhand and anr., 2005(2) BJLR 1559.
37
AIR 1955 SC 549. Also see Asif Hameed v. State of J. & K. (AIR 1989 TO 1899)
38
AIR 1992SC 96

17
bagging in public, legality of construction, size of speed breakers, auto rickshaws over
charging, growing number of road accidents, etc.

On December 10, 2007 the Supreme Court added a new chapter to this controversy when the
two judge bench consisting of justice A.K. Mathur and Markandey Katju decried the
tendency of “Judicial activism” betraying overreach that was discernible to them in two
earlier pronouncements of the apex court itself39. Court held that creation, sanction of posts is
a prerogative of the executive or legislative authorities, and the court cannot arrogate to itself
this purely executive or legislative function and direct creation of post in any organization.
As pointed out by Hon’ble Mr. Justice J.S. Verma, the former C.J. in his Dr. K.L. Dubey
Lecture:

“Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi,
allotment of a particular bunglow to a judge, specific bunglows for the judges pool, monkeys
capering in colonies, stray cattles on the streets, clearing public conveniences, levying
congestion charges at peak hours at airports with heavy traffic etc. under the threat of use of
contempt power to enforce compliance with its orders. Misuse of the contempt power to force
railway authorities to give reservation in a train is an extreme instance.”

The judges also pointed out that recently the court have apparently if not clearly, strayed into
the executive domain or in matters of policy. For instance the orders passed by the high court
of Delhi in recent time dealt with subjects ranging from age and other criteria for nursery
admission, unauthorized schools, criteria drinking water in schools, numbers of free beds in
hospitals on public land, use and misuse of ambulances, requirements for establishing a world
class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use
of subways, the nature of buses we board, the legality of construction in Delhi, identifying the
buildings to be demolished, the size of speed breakers on Delhi roads, autorickshaw
overcharging, growing frequency of road accidents and enhancing of road fines, etc.

The court itself has observed that if the legislature or the executive are not functioning
properly, it is for the people to correct the defects by exercising their franchise properly in the
next elections, and the remedy is not in the judiciary taking over the legislative or executive
functions, as the judiciary has neither expertise nor the resources to perform these functions.
In addition, of the three organs of the state, only the judiciary has the power to declare the
limits of jurisdiction of all the three organs. As truly said by Justice H.R. Khanna, this is a
great power and hence must never be abused or misused, but should be exercised by the
judiciary with utmost humility and self restraint.The court also observed that judicial restraint
complements the twin overarching values of the independence of the judiciary and the
separation of powers.

The above observations made in this case created a rippling effect in as much as it dissuaded
another bench of two judges manned by Justice S.B. Sinha and Justice H.S. Bedi to hear a

39
Divisional Manager, Aravali Golf Club and anr. V. Chander Hass and anr,(2008), SCC 683.

18
pending PIL on sex workers plight and the Delhi High Court a petition on the rehabilitation
of beggars and action against a begging racket in the city employing small children40.

After that on December 13, 2007, took place another event when a three judge bench headed
by chief Justice K.G. Balakrishanan took a stern stand on the observations on “Judicial
activism and overreach” made in Aravali Golf Club case by a two judge bench, saying they
are not bound by the observations made in that case, while entertaining a PIL on the
condition of widow in Vrindavan and Mathura in Uttar Pradesh.

CJI’s remarks got immediate support from former C.J.I P.N. Bhagwati, Who said, “To my
mind if the C.J.I. has made such a statement in the court he is perfectly right and fully
justified41.”

On March 11, 2009 in Vishnu Dutt Sharma v. Manju Sharma42 the two judge bench
consisting justice Markandey Katju and Justice V.S. Sirpurkar denied to grant divorce on the
ground of irretrievable breakdown of marriage and observed, “If we grant divorce on this
ground, then we shall by judicial verdict be adding a clause to section 13 of the Hindu
Marriage Act, 1955. In our opinion this can be done only by legislature and not by the court.”
But interestingly, earlier courts have been granting divorce on the same ground43.

Taking stock of the situation on the Mumbai Terror Attacks of November, 2008 a former
Attorney General of India filed a petition before the Supreme Court seeking to better equip
the Indian Police. The court asked the government about the steps taken in this direction44.

In another glaring recent example the Supreme Court issued a notice to the union government
seeking an explanation of the steps taken by it to ameliorate the plight of Indian Students in
Australia, who have been facing racially motivated attacks45.

Recently, Supreme Court on July 10, 2009 issued notice to the Union Government on a
Special Leave Petition challenging the Delhi High Court Judgement Declaring Section 377 of
Indian Penal Code, unconstitutional and refused to grant stay against the High Court
Judgement.

In this way we can say that the recent trends, which the Supreme Court is following, are
inclined towards solving problem of all sections of society along with maintaining the
balance of powers between all the three organs.

40
Prof. Virendra Kumar.”Judges v. Judges”; The Tribune(New Delhi) December 21, 2007.
41
Overreach order not binding: CJI, The Times of India (Delhi) December 14,2007.
42
Vishnu Dutt Sharma v. Manju Sharma, on 27 February, 2009.
43
Satish Sitole v. Ganga,The Hindu (Delhi) on July 20,2008.
44
Abhinav Chandrachud,” Dialogic Judicial Activism in India”, The Hindu(Delhi) July 18,2009.
45
Ibid.

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 JUDICIAL ACTIVISM and My Opinion:

After a perusal of case laws it needs to be appreciated that, there is nothing wrong with
judicial activism, as judicial activism itself is not problematic. The real issue is only about its
legitimate limits as in the course of dispensation of justice, at times situation do arise that
require correction of an executive order or removing some legislative lacuna. In such
situations sometimes the court may find itself involved in a policy-making decision that
partake the character of political decision. And in such circumstances court is justified in
doing so.

But in many cases it could also be seen that judiciary has really encroached upon the areas of
the legislature and the executive, and in the garb of activism has misused its powers,
disrupting the theory of ‘Separation of Powers’ which itself has held to be a basic structure
and cannot be thus destroyed.

We could justify this by saying that the legislature and executive are not performing their
functions properly and then where should the people go and get justice. This is true especially
in the coalition governments where the government bow downs to the political demands of
the supporting party just to remain in power and the executive is not performing its duties
well. Moreover, an aggrieved can’t go to Chief Minister directly if there is any problem with
any law or policy, only the doors of the court could be knocked. And if the legislature and
executive wants non-interference then they should do their work properly.

Moreover, we all know that the three organs forms a watershed and sometimes an
encroachment upon others power is inevitable, not only for judiciary but also for the
legislature and the executive. But even then all the three organs must respect each other
mutually and maintain the separation of power. Each organ has their own expertise in their
respective fields and they all know how to do their work best. If executive err, so does the
judiciary and legislature. If the legislature fails they could be judged by people in the next
elections.

Judicial activism is a great weapon in hands of judiciary and the people and must be used
better, especially for those who want it most but could not get it, for instance the poors, the
illiterates, down-trodden, ruralites and oppressed.

20
 Conclusion

Justifying, appreciating and encouraging the guided activist approach of the High Court, the 3
judge bench of Supreme Court defended Delhi High Court decision to entertain Public
interest petition relating to various issues faced by citizens. Further the bench said “If the
court did not entertain the matter relating to irregularities in admissions in schools and
colleges, which affect the careers of thousands of students, at a time when the state
government was not taking action against the guilty, who would come to the rescue of
common man?” if not the court.

Former Justice of India A.M. Ahmadi Explained the current phase of activism in his Zakir
Hussain memorial lecture in February, 1996, when he said, “courts would never have resorted
to (activism) had the other two democratic institutions functioned in an effective manner.”

Similar view can be expressed in cases of legislative inaction. For instance in Naveen Kohli v.
Neelu Kohli,46 the apex court had made a recommendation that “this court would like to
recommend the Union of India to seriously consider bringing an amendment in the Hindu
Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the
grant of divorce.”After this judgement, in case of legislative inaction, the Supreme Court has
been granting divorce in cases of irretrievable breakdown of marriage while exercising the
power under Article 142 of the constitution.

But recently (as we have discussed earlier) in Vishnu Dutt Sharma v. Manju Sharma47, the
court denied to grant divorce on this ground calling it a legislative action to make law by
saying “if we grant divorce on this ground then we shall by judicial verdict be adding a clause
to section 13 of the Act, this can be done only by legislature.”

Thus, in such a state of things there arise a need of judicial activism as there is no remedy
with the aggrieved person.

To conclude, we can say that the Indian Supreme Court’s gaze has now gone beyond the
protection of the socially and economically downtrodden, and into the realm of public
administration. For example, the Supreme Court issued guidelines in 2006 to reform the
police administration. Similar guidelines have been issued increasingly in legislative spheres.
Because of these opinions, at least in theory, employer must now act against sexual
harassment at workplace48 and police officer must follow procedures prior to an arrest49.

But the critics of this concept 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,

46
[2006] 3 SC 491.
47
Ibid. 41.
48
Vishakha v. State of Rajasthan, AIR 1997 SC 3014.
49
D. K. Basu v. State of West Bengal, (1993) 2 SCC 746.

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any action that is not done strictly in accordance with existing law must be activism. Justice
V.R. Krishna Iyer says about judicial activism, “It is not opium but a pervasive power and a
brooding omnipresence50.”

As far as the Indian Judicial stream is concerned, we can say that a guided activist approach
is always justified in this direction. In this context Justice J.S. Verma has observed “Judicial
activism should be neither judicial adhocism nor judicial tyranny51.” He adds further, “I see
no reason for any conflict between the different limbs of government, which are all meant to
serve the common purpose of public good deriving their authority from the common source
the constitution of India depicting the will of the political sovereign ‘we, the people of
India52.’

50
‘Judicial activism in India’, V. R. Krishna Iyer, The Hindu(Delhi), October 09,2001.
51
http://www.indian express.com/news.
52
Ibid.

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