See Generally, Sudhir Krishnaswami & Madhav Khosla, ― Reading A.K Thakur v.

Union of India:

Legal Effect and Significance‖ 43 Eco. & Pol. Weekly 53 (2008).

[208]
 XI. Extent of Decision: It deals with the impact of the decision. If the

decision is meant to apply strictly to a narrow set of scenarios, the

decision would be less activist as compared with one which has a wide

application.

XII. Legal Background: It examines the legal provisions that are at issue in

the case and studies whether the provisions are clear and unambiguous,

or whether they are vague and deficient. In cases where rules are

insufficient, courts need to be imaginative and adopt other cannons of

interpretation, thereby illustrating a high degree of activism.

An analysis of the relevant legal provisions in a particular decision is central to

determining whether or not the decision is activist. These twelve parameters provide a

comprehensive guide to assessing judicial activism when the judiciary performs the

function of dispute resolution.

6.4.2 JUDICIARY AS A PLAYER IN CONSTITUTIONAL DIALOGUE WITH

OTHER BRANCHES

The second category as described by Cohn & Kreminitzwer relates to the role

of judiciary as a player that ―operates in the public sphere as a participant in a network

of actors, comprising other governmental branches, individuals and civic bodies‖ 553. As

the authors note, arguing that the judiciary serves a function as a party in a

constitutional dialogue with other branches of government means that they ―reject

visions of the omnipotence of the third branch‖ 554.The existence of this vision in the

model is driven by the belief that it is necessary to locate decisions in their social

context. Evaluating judicial decisions without reference to the reaction they socially

receive has, according to this model, two shortcomings. First, it regards the courts as

the final word on a particular issue and secondly, it does not account for its role as a

direct participant in a constitutional dialogue. 555 Thus, according to the model, if a

decision is regarded as a welcome change in the society it would not be regarded as

‗activist‘, and if on the other hand, the same decision is opposed by the members of the
society and the ―other members of the social network‖, a higher degree of activist,

553

Supra note 547 at 335.

554

Ibid.

555

Id. at 343.

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would have to be associated with a decision 556 .Under this category, there are four

parameters through which the model suggests the measurement of activism.

I.Reaction of the Legislature: If the legislature, the model argues, undertakes

measures to overturn the decision, then the decision is regarded to possess a

higher degree of activism as compared with legislative affirmation of the

decision. Often, there is no legislative response to a particular decision. Such

cases, as Cohn and Kreminitzer rightly note, are likely to signify acceptance

with the decision and should thus be regarded as instances of a median degree

of activism.

II.Administrative or Executive Response: This parameter assesses the

administrative or executive response to the decision, essentially by examining

its compliance. The greater the compliance, the less is the degree of activism.

III.Reaction by the Judiciary: This parameter studies the extent to which

future decisions will fall in line with the decision under examination. The

greater the affirmation of the decision in subsequent cases, the less is the extent

of activism.

IV.Vox Populi: In performing its function as a player in a constitutional

dialogue, the judiciary‘s decision is examined with reference to the public

reaction the decision receives. A high level of disapproval by civil society will

signify a high activist quotient and similarly social acceptance of the decision

will mean that the decision should not be viewed as ‗activist‘.

6.4.3 JUDICIARY AS A PROTECTOR OF CORE CONSTITUTIONAL

VALUES

The third function that the judiciary performs, according to this model, is to

protect the core constitutional values and decisions that do so are not to be regarded as

activist. The inclusion of this function in the model rests on the assumption that
―Purely value free judicial decision making is not only impossible but also

untenable‖. 557 Naturally, the question arises as to how such core values are to be

determined. It would seem that in most cases they are likely to turn one one‘s

556

See Micheal C. Dorf & F. Sabel, A Constituion of Demoractic Experimentalism 98 Columbia Law

Review 267 (1998).

557

Supra note 547 at 348.

[210]
interpretation, and perhaps even preference. Cohn and Kremnitzer foresee this

criticism and argue that while it may be valid in general, it is largely inapplicable to

their model. The reason they attribute to it is that they regard a limited scope to a

narrow range of such core values, which they believe ―remain uncontested in

constitutional arenas‖.558This may be because of the fact that scholars often disagree on

the conception of a core value. Even if there is a consensus on which core values

underlie legal systems, there may be disagreement on what that particular core value

means.

At any rate, the discussion on the third function of the judiciary makes it clear

that this particular aspect of the model requires much greater debate and discussion.

The same holds true for the inclusion of the second function of the judiciary in the

model, as there is by no means a consensus on the view that the judiciary must play a

role as a participant in a constitutional dialogue. In addition to these concerns, there

are others that arise with respect to the model. The most apparent of these is the fact

that since the parameters do not have relative weights, it is uncertain as to which

parameter one ought to prioritize. Cohn & Kremunitzer, however, acknowledge the

existence of these methodological concerns, and only attempt to provide a preliminary

framework to refine the debate on ‗Judicial Activism‘.

6.5 PERILS OF JUDICIAL ACTIVISM

Judicial Activism when overtly exercised results in usurping the powers of the

Executive or the Legislature, which are the other two important organs of governance.

It has been consistently laid down by the Supreme Court of India that there cannot be a

writ of mandamus from any court directing the Legislature to legislate on a given

subject. The power to legislate is squarely conferred on the Legislature by the

Constitution. The power to legislate is squarely conferred on the Legislature by the

Constitution. No such legislative power is given to the Courts by the Constitution.

The legislative action done by the Courts is to be derived from its Judicial Activism

done in permissible limits for proper and complete interpretation of the provisions of
law. Judicial Activism cannot be used for filling up the lacunae in Legislation or for

providing rights or creating liabilities not provided by the Legislation. In this regard,

558

Id. at 349.Reflecting on the literature the identifies core constitutional values, Cohn and
Kremnitzer

do not advance their own version of core values, although they seem to endorse values such as
equality,

liberty, and human dignity as being ―core‖.

[211]
the judgments of the Supreme Court in relation to admission to the Post Graduate

education in Medicinal Science need consideration. These judgments, starting with the

judgment in Pradeep Kumar Jain‘s case559and three or four directions issued in Dr.

Dinesh Kumar‘s case 560 appear to be yet another avoidable exercise in Judicial

Activism. The Supreme Court went on to lay down the manner in which Post Graduate

seats in different Post Graduate Medical Institutions in India would be filled, the

manner in which the examination for filling those posts is to be conducted, the manner;

in which the seats are to be distributed in every discipline, and the manner in which the

question of the reservation for backward classes candidates would be dealt with. All

this, in my humble opinion, was clearly in the domain of the Executive administering

the Department of Education. It was certainly a specialized field which ought to have

been left for governing to the Specialized Bodies like the Indian Medical Council. To

the same effect are cases in the matter of capitation fees dealing with education in

Engineering Branches in particular. In deciding all these cases, and giving numerous

directions in those cases, I in all humility, submit that in these instances the Supreme

Court has transgressed the limits under the specious cover of Judicial Activism.

Professor Sir William Wade, Q.C.,561while recording appreciation of judicial

activism, sounds a note of caution ―It is plain that the judiciary is the least competent to

function as a legislative or the administrative agency. For one thing, courts lack the

facilities to gather detailed data or to make probing enquiries. Reliance on advocates

who appear before them for data is likely to give them partisan or inadequate

information. On the other hand if courts have to rely on their own knowledge or

research, it is bound to be selective and subjective. Courts also have no means for

effectively supervising and implementing the aftermath of their orders, schemes and

mandates, since courts mandate for isolated cases, their decrees make no allowance for

the differing and varying situations which administrators will encounter in applying the

mandates to other cases. Courts have also no method to reverse their orders if they are

found unworkable or requiring modification‖.

559

Dr. Pradeep Jain and Others v. Union of India and others AIR 1984 SC 1420.

560

Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others AIR 1985 SC

1059.

561

In a monograph ―Judicial Activism and Constitutional Democracy in India‖ commended by

Professor Sir William Wade, Q.C. as a ―small book devoted to a big subject‖.

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6.6 ARE JUDGES OVER REACHING?

―The line between judicial activism and judicial overreach is a thin one…A

takeover of the functions of another organ may become a case of over-reach‖

Dr.Manmohan Singh562

In other words, the PM had all but accused the SC of judicial over-reach and

taking over executive or legislative functions. There are several high-profile instances

where courts had arguably crossed the line. In the context of Delhi sealing drive, 563

Prime Minister could have been referring to the controversial monitoring committee set

up by the SC to oversee all the executive agencies involved in sealing shops and

offices. Or, in the context of reservations for OBCs, he was probably drawing attention

to SC‘s stay on his government‘s ambitious plan of introducing quotas in central

institutions in a staggered manner.

But then CJI, speaking at the same function, sought to play down the

significance of the differences that have arisen between the judiciary and the political

class. ―The application of judicial review to determine the constitutionality of the

legislation and to review the executive decision sometimes creates tension between the

judge and the legislative and executive branch. Such tension is natural and to some

extent desirable‖

Thus, in Justice Balakrishnan‘s view, the tension between the organs, far from

being a cause for worry, is an inevitable consequence of judicial review, the power of

the superior courts (borrowed by our founding fathers from the US) to strike down any

legislative or executive act found to be volatile of the Constitution. By calling the

tension ―natural‖ and ―desirable‖, the CJI has, by implication, rejected the charge of

judicial over-reach.

The truth, as often, lies somewhere between the two extreme positions. Take
the two examples cited by Lok Sabha Speaker Somnath Chatterjee on April 4, 2007 at

a seminar organized by the Supreme Court Bar Association.