JUDICIALACTIVISM: EFFECT ON THE DOCTRINE OF SEPARATION OF POWER
– Pawan Reley 1
– Anamika Gautam 2
This article in the form doctrinal study tries to examine the concept of judicial activism in the light of three areas, they are:interpretation of ordinary statutes, interpretation of the constitution and Public Interest Litigation (PIL), which is subject matter of raging debate in the country. It also deals with its effect on the “Doctrine of Separation of Power” in the light of recent case laws. Further, it throws a
light on the impact whichmay haveon thedemocracy ofthecountryif itis continually violative of very fundamental ‘Doctrine of Separation of Power’.
INTRODUCTION – THE ROLE OF THE JUDICIARY
The concept of judicial activism which is another name for innovative interpretation was not of the recent past. It took birth in 1804 when chiefjustice Marshall, one of the greatest judges ofthe English-oratory world, decided Marbury v. Madison,3
In todays context the concept of Judicial Activism has become the Centre of a huge debate. Activism being a one word constitutes many worlds. It is a philosophy of judicial decision-making whereby judges allowtheir personalviews about public policies, among other issues, to maketheir decisions with thesuggestion thatadherents ofthis philosophy tend to find constitutional violations and arewilling to ignore precedent.4
The first question which must be answered is what the role of the judiciary is. An answer to this question may be found in the case of Indira Gandhi v. Raj Narain,5 It was held that the main role of the judiciary is to make sure that the legislature and the executivestay within the limits prescribed by the Constitution,interpret theConstitution, and apply the law as interpreted to fact situations which might arise.
If this case is read with the argument given by S.P. Sathe’s for judicial activism, it can be pointed out that the main role of the judiciary is based on the two models of judicial review. First one is technocratic model in which judges act merely as technocrats, and holds an action invalid ifit is ultra viresthe Constitution.In the second modelit interprets the provision of the Constitution liberally and keeps the Constitution alive through dynamic interpretations.6 These interpretations are the heart of judicial review; and judicialreview, so as to say, is essentially a matter of interpretation.7 In this way the model of judicialreview took the incarnation of judicialcreativity which brought out the phenomenon of judicialactivism itself. Recent experiences shows that judicialreview has its practice best in advanced, middle-class societies steadfastly committed to the idea of limited government.8
Other phase of the role of judiciary in justice on the basis of judicial activism as J. Gajendragadkar has stated:”Another ingredient of judicial process flows from the facts that the goddess of justice is reported to be blind. On most court buildings you see the statute of the goddess of justice holding thebalance of justice in her hands. Blind, in this context, does not mean that the goddess does not see. It means that she is oblivious to the respective status of the parties, whether they arerich or poor, whether they are important or unimportant, whether they are ministers or ordinary citizen and whether they are Hindus, Muslims, Christians, Jews.”9
It is interestingto notehowever, that although in these cases the judiciary was not acting strictly within the limits placed in earlier cases, it took care to make it clear that it was merely pursuing the ‘realization of the constitutionalobjectives’,10 which clearly shows its interferencein other organs of the state. Hence, these are the vital decisions that have conceptualized judicial activism which were enunciated by the judges in order to bring about social change.
AN OVERVIEWOF JUDICIAL ACTIVISM
Speaking at a recent symposium, Judge Frank Easterbrook opened with an ostensibly safe sentence; every one scorns judicial activism, that notoriously slippery term. Yet even this observation cannot go unqualified. Most would agree that judicialactivism is indeed slippery. But some scholars have suggested that in some contents, it is not always a bad thing. This is the problem:one can scarcely make an observation about judicialactivism today without appendingdefinitions, provisions, and qualifications.11
Broadly stated, the judicial activism covers three areas: interpretation of ordinary statutes, interpretation of the constitution and what is commonly known as Public Interest Litigation (PIL), which is subject matter of raging debate in the country. Some analysts like Upendra Baxi prefer to call it the Social Action Litigation(SAL).12 He noted that, ‘The activism of SAL historically arose first in some High Courts, although the caste-view of judiciary in India has so farforbidden explicit recognition of this fact.13
Study ofJudicialActivism in Indiacan neverbe completed unless Public InterestLitigation is included in it. Itis akind ofconstitutionaladjudication in pursuit of constitutionaljustice, promoting the concept of Welfare State.14
The concept of this principle can be justified on the ground that as the power of the bureaucracy is expanding so it is inevitable that correspondingjudicialpowershould also expand. In this kind of litigation, the petitioner seeks to enforce or prevent a breach of general public law.15 The conceptof PILon thebasis ofjudicialactivism was explained by the court in the case of S.P. Gupta v. Union of India,16 and held that where a legal wrong or legal injury is caused to a person or to a determinate class ofpersons by reason ofviolation of any constitutional or legal right, and if he is helplessness, or in socially or economically disadvantaged position, not able to approach the court for relief, then any memberof thepublic can maintain an application for an appropriate direction, order or writ underarticle 32or 226 of theIndian Constitution.
Under PIL, the scope of the writ of mandamus has also increased to a great extent, because it has been issued to compel the government to do what was within its discretion, and not to do what was not.17 It thus allowed for an infringement into policy matters to a certain extent.18
In 2004, the limit of filing PIL had exceeded the limit and the same was shown in the case of Ashok Kumar Pandey v. State of West Bengal,19 whereSupreme Courtstressed on the Misuseof publicinterest litigation and held that public interest litigation must be used with great care and circumspection. The judiciary has to be exceedingly careful to see that no ugly privatemalice, vested interest orseeking publicity lurks behind the splendid veil of public interest. It should be used as an effective weapon in the armoury of law for delivering ‘social justice’ to citizens. The striking brand nameof public interest litigation should notbe used for guarded products of mischief.
In the case of Rajiv Ranjan Singh Lalan v. Union of India,20 Supreme Court reiterated the principle and held that even if a case that is brought before a Court by a public interest litigant may be genuine, the Court has to decline its examination on the request of a person who is not a public interest litigant and whose bona fides are in doubt, because a trust cannot be placed by the Court on a mala fide applicant in a public interest litigation. The Courts has to take great care while exercising jurisdiction and deciding public interest litigation. The rationale for this can be stated that wide jurisdiction should not become a source of abuse of process of law by disgruntled litigant.Such carefulexercise is also needed to ensure that the litigation is genuine and not goaded by extraneous considerations. Further, it imposes an obligation upon the litigant to disclose true facts and approach the Court with clean hands.
LEGITIMACY OF JUDICIAL ACTIVISM
To make senseof legitimacy claims thatabound in constitutional debates, it is essential to identify the criteria to which these claims appeals.21 Most recurrent disputes about judiciallegitimacy involvejudicialpowers to recognize rights that are not relatively controversially defensible by referenceto the constitution’s language and its originalunderstanding.22
The realist schoolof jurisprudence exploded the myth that the judges merely declared the pre-existing law or interpreted it and asserted that the judge made the law, 23 or new law is created by the judiciary.24 The Supreme Court of Indiaoften described as most powerful in the world.25 It only makes the law,as understood in the sense ofrealist jurisprudence, butactually has started ‘legislating’exactly in the way in which a legislature legislates.26 While doing so it transcended the limits of the judicial function which is envisaged to be kept separate and distinct from legislatureand executive.27 This becomes triply offensive forthe Doctrine of Separation of Power.
The Supreme Court in Delhi Laws case 28 observed thatthe separation of powers is the essence of the Constitution. Further in the caseof Ram Jawaya Kapoor v. State of Punjab it had also accepted the fact there cannot be any absolute rigidity in their separation of powers,29 nonetheless it was raised to the status of basic structure ofthe constitution in Indira Gandhi v. RajNarain,30 The same was reiterated in the case of Keshavanada Bharti v. Union of India,31 The Court elevated this feature ofseparation of powers to the basic structure ofthe Constitution.
But then again in the case of Bhim Singh v. Union of India and Ors.,32 Supreme Court stated that the separation of power enshrined under Indian constitution is not rigid and overlap of few functions are not unconstitutionalbeing violative of separation of power.
Further in the case of State of Maharashtra v. Farook Mohammed Kashim Maphar,33 it was held that in order to protect civil liberties, fundamentalrights specifically article21, SupremeCourt and High Court can exercise power ‘Sparingly’, ‘cautiously’ and in ‘exceptional situations’.
On this basis legitimacy ofan action as a concept embraces three things within its fold. Firstly it must be legally valid. Secondly there must be a widely shared feeling among the people that they have a duty to obey the law. Thirdly there must be actual obedience of the law by a large number of people.34
So in this way the decisions of the court actually shadow the last two above-mentioned conditions of legitimacy and they go pear-shaped to satisfy the first condition because the judiciary by passing the decisions of this sort is doing nothing but acting in violation of the constitutional mandate i.e. of separation of powers.
India is to interpret the Constitution and to apply the interpretations to the fact situations and nothing more. This brings us to judicial activism itself. In the opinion of the researcher study of judicialactivism in India can never be completed unless Public Interest Litigation is included in it. A survey of Public interest litigation shows that it is essentially a cooperative orcollaborative effort Interpretations is the heartof judicial review, so of judicialactivism. The role of the judiciary on the part of the state or public authority, petitioner, and the court to secure observation of the constitutionalor legalrights benefits and privileges conferred upon the vulnerable section of the community and to reach social justiceto them.35 It was found that painfully aware of the precincts of legalism, the Indian Judiciary has struggled over the last decade to bring lawinto the service of the poorand oppressed.36 Whilestruggling for this it traversed the parameters of the judicial function and has undertaken functions that really belonged to either legislature or the executive. Because it is not equipped with the skills and competence to discharge the functions thatessentially belong to the other co-ordinate organs of government, it violates its triaspolitica principle(Separation of Power) that has been identified as basic structure of the Indian Constitution by the Supreme Court itself.
This way, judicial activism has a negative effect on the fundamental ‘Doctrine of Separation of Power’. This is extremely alarming situation, thesolution to which can be found in nothingbut in judicial-self restraint.
1.) FAZALKARIM, JUDICIAL REVIEW OF P UBLIC ACTIONS (Universal Law Publishing And Co., Ed.1st, 2006).
2.) GEORGE H. GADBOIS, JR, JUDGES OF THE SUP REME COURT OF INDIA (Oxford, Ed. 1st, 2011).
3.) MADHAVGOBOLE, THE JUDICIARY AND GOVERNANCE IN INDIA (Rupa And Co. 1st ed. 2009).
4.) M.D.A.FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE (Thomson Reuters Limited, 8th ed. 2008).
5.) M.P. Jain & S.N. Jain, P RINCIP LES OF ADMINISTRATIVE LAW (Lexis NexisButterworthsWadha Nagpur 6th ed. 2010).
6.) M.P. JAIN, INDIAN CONSTITUTIONAL LAW (Wadhwa And Company Nagpur 5th ed. 2006).
7.) P.S. NARAYANA, PUBLIC INTERESTLITIGAION (Asia Law House 3rd ed. 2007).
8.) ROIL, P ublic Interest Litigation (Universal Law Publishing Co. Pvt. Ltd. 2011).
9.) S.P. SATHE, JUDICIAL ACTIVISM IN INDIA (Oxford University P ress 6th ed. 2007).
ARTICLES & OTHER AUTHORITIES
1.) Donald P. Kommers, Judicial Review: Its Influence Abroad, 428 SAGE P UBLICATIONS,INC (2004).
2.) Jamie Cassels, Judicial Activism and P ublic Interest Litigation: Attempting the Impossible, 37 AMRICAN SOCIETY OF CORPORATIVE LAW (1989).
3.) Keenan D. Kmiec, The Origin and Current Meaning of “Judicial Activism”, 92 CALIFORNIA LAW REVIEW (1976).
4.) Richard H. Fallen, Jr., Legitimacy and the Constitution, 118 HARVARD LAW REVIEW (2005).
1.) Black’s Law Dictionary, 9thed.