- Raj Shekhar
“Instead of re-ploughing the well-worked terrain which ranges justiciability against non-justiciability, the real challenge is to formulate a democratically justifiable role for the courts.”
-Prof. Sandra Fredman
Be it the challenge to Section 377 of the Indian Penal Code or one of the recent dicta on the status of transgenders, the judiciary has been actively indulged in what the world calls – Judicial Activism. What the critics of judicial activism have failed to visualize is the need for judicial intervention which arose due to the legislative/ executive inaction and inefficiency. The motive of this blog is not to go into goods and bads of decisions but to bring forth an argument which speaks in favour of judicial activism and also analyse the point at which there is a need to draw Lakshman rekha[ so as to maintain the integrity of judicial activism.
Article 32 and 226 of the Indian Constitution provide the Indian Courts the power of taking up Suo Moto Cases. Also in the landmark judgement of Bandhua Mukhti Morcha v. Union of India[AK1] , where for the very first time the idea of Public Interest Litigation (PIL) was introduced and the locus standi requirement was liberated and since then the Indian Judicial System has constantly seen an increase in its power.
After playing a largely “interpretative” role for a decade after independence, the Supreme Court, starting from the controversial 1970s era has been the major force acting against the overreach of power exercised by legislative and executive bodies. Judicial activism was indeed a necessity to make sure that an Authoritarian Government could not use the constitutional and legislative functions to dilute the spirit of democracy. The first instance of judicial activism was the laying down of the ‘basic structure’ doctrine in Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, which was an extremely constructive step to bring amendments to constitution under the judicial ambit and thus, in turn, lead to the widening of the scope of the right to life and liberty by directly bringing in it with contrast with the non-justiciable directive principles of state policy such as those of promoting education and the duty to preserve the environment, the decade of the 70s saw the judiciary play a highly pro-active role in ensuring that India progresses to become a thriving democracy and ensuring its subsistence in the years to come.
The most common argument that we witness against judicial activism is the fact that it leads to the undermining of the people’s voice that is the democratically elected members of the parliament. The logical explanation of this argument is that judicial activism leads to certain results which upset the balance of power between the three democratic organs of – legislature, executive, and the judiciary. However, we need to understand that such logical arguments are based on the assumption that the other two organs of democracy are performing their duties ideally and judiciary is incapable of intervening in such matters and furthering the interests of democracy.
The assumption that the Parliament and Executive make policy decisions which are strongly backed at points by effective participation of citizens is a completely flawed idea. Further, the belief that the judiciary has a role in ensuring that there is effective participation from interest groups is completely irrelevant and baseless. Further, Professor Waldron’s argument assumes that judicial intervention means that judges have the final say on the policy issue. The judges can, however, promote decision making relating to policy issues without being the ultimate decision-maker.
Though the Indian Judicial System is considered the progenitor of Judicial Activism, its traces can be drawn from the Hart v. Fuller Debate and its close analysis with the cases of Riggs v. Palmer and Olef v. Hodapp. The former being a case of judicial activism, where morality and laws were contrasted and the principle of – “No one shall benefit from his own wrong” was instituted. However, the contrast is visible from the latter case where the jury was of the opinion that law and morality shall not be contrasted and laws shall be read as they are rather than interpreting them. The legacy of Indian Judicial Activism has formed the very bedrock of South African Jurisprudence. However, when it comes to drawing the line up to which judicial activism should continue, the South African decisions and judgments can be used to determine where the courts must draw – Lakshman Rekha.
The best example is the City of Johannesburg v Rand Properties (Pty) Ltd which involved a question to the authority of the state regarding the eviction of inmates of a ramshackle building in the area of central Johannesburg. Since right to housing is a fundamental right was evidently being denied, the judiciary ordered the state and the evicted inmates to “engage with each other meaningfully … and in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the duties of citizens concerned” to resolve the dispute. Thus, the judiciary, by its positive involvement, had made sure that these deliberations were on a level playing field, i.e. not dominated by any side as the final result of the deliberations was addressable to the radar of scrutiny by the Court. By doing this, while the court ensured that executive inaction was not left unchecked, the final decision itself was left to the executive but subject to judicial intervention.
This case clearly shows how it is possible for judiciary to scrutinize the working of other bodes without actually hampering their powers in any way. This precedent and many others have a backing from the writings of Professor Roach who is of the opinion that the judiciary should not be actively indulged in policy creation to enforce rights, but must rather allow the government to frame it along with a plan of action. The finalization of this plan of action shall only be deemed to be complete once it has passed the judicial scanners of inaction or overreach.
Once policies are framed and tabled before the judiciary, it is to be interfered with by the judiciary in a very restrictive manner, using the principle of deference. Abiding by or going by this principle, the judiciary, while it evaluates plans of action (or inaction), should change the policy or rules framed only when the reasons provided are unreasonable. A court should only see whether the reasons provided by the executive justify its decision and such comparison should not be in a way as to see if the court would have arrived at the same conclusive decision. This test should be applied not only at that time when the policy is being tested by the judiciary but also by courts to determine if legislative inaction is justified and if justified, it is its duty to determine as up to what extent.
While there is indeed a chance of judicial activism being misused by judges to suit their own interests or those of their community, however, the Supreme Court has in the past penalized people on instances of such misuse. The solution does not lie in throwing away the baby with the bathwater. The mere fact that there exists a chance of judicial over-activism cannot be deemed to be a strong argument against the incorporation of judicial activism. Judicial activism, keeping in view the ideals of democracy, is, in fact, necessary to ensure that the voice of the feeble is not suppressed by those of plutocracy and the strong. Stating in terms of Marxian thinking – it is a mechanism to ensure that the bourgeois doesn’t dominate the proletariat. Indeed, on many historic instances, timely interventions by the Indian Judiciary, like the case of Indira Nehru Gandhi vs Shri Raj Narain & Anr , has helped democracy sustain in our country despite time to time failures of the other organs of democracy and has helped us to maintain the status of India is the home of judicial activism to its utmost true sense.
 Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
 In some later versions of Ramayana, is a line drawn by Lakshmana around the dwelling he shares with his brother Rama and Rama’s wife Sita at Panchavati in the forest of Dandakaranya. The line is meant to protect Sita, while he is away searching for Rama.
 Bandhua Mukhti Morcha v. Union of India (1997) 10 SCC 549.
 Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr (1973) 4 SCC 225.
 Jeremy Waldron (/ˈwɔːldrən/; born 13 October 1953) is a New Zealand professor of law and philosophy.
 Cane, P. ed., 2010. The Hart-Fuller debate in the twenty-first century. Bloomsbury Publishing.
 Riggs v. Palmer 115 NY 506 (1889).
 Oleff v. Hodapp (1935), 129 Ohio St. 432.
 City of Johannesburg v Rand Properties (Pty) Ltd  2 All SA 459 (SCA).
 Bamforth, N. and Leyland, P. eds., 2013. Accountability in the contemporary constitution. Oxford University Press.
 Kent Roach, a Professor of Law at the University of Toronto.
https://www.tandfonline.com/doi/pdf/10.1080/10854681.2006.11426468, accessed on 25/12/19, time 9:38pm.
 Indira Nehru Gandhi vs Shri Raj Narain & Anr ,1975 AIR 1590.
[AK1]First case was Hussainara Khatoon v. State of Bihar.
Further, Justice PN Bhagvati elaborated upon the same in some other case. (SP Gupta if I’m not wrong)
The author is a 1st Year Student of NUSRL, Ranchi