JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION

Author(s): A.S. Anand

Source: Journal of the Indian Law Institute , April-December 2000, Vol. 42, No. 2/4,
Constitutional Law Special Issue (April-December 2000), pp. 149-159
Published by: Indian Law Institute

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 JOURNAL OF THE INDIAN LAW INSTITUTE

Volume 42 April - December 2000

JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION*

A. 5. Ananď*

THERE IS a great need for caution while expanding the parameters of judicial
review. The scope of judicial review generally speaking is in three specific
areas:

i) Judicial review of legislative action;

ii) Judicial review of executive or administrative action;
iii) Judicial review of judicial action.

Under our Constitution distribution of legislative powers b

Parliament and the legislatures of the states is defined. Vari
legislations are contained in the three lists - union, state and
contained in the seventh schedule to the Constitution. The enactments of
legislatures can be challenged on the ground that they are in conflict with
chapter III of the Constitution or are otherwise ultra vires the Constitution.

Judicial review is not an expression exclusively used in constitutional law.

Literally, it means the revision of the decree or sentence of an inferior court by a
superior court. Under general law, it works through the remedies of appeal,
revision and the like, as prescribed by the procedural laws of the land, irrespective
of the political system which prevails. Judicial review has, however, a more
technical significance in public law, particularly in countries having written
constitutions. In such countries it means that courts have the power of testing the
validity of the legislative as well as other governmental actions. The necessity of
empowering the courts to declare a statute unconstitutional arises not because
the judiciary is to be made supreme but only because a system of checks and
balances between the legislature and the executive on the one hand and the
judiciary on the other hand provides the means by which mistakes committed by
one are corrected by the other and vice versa . The function of the judiciary is not
to set itself in opposition to the policy and politics of the majority rule. On the
contrary, the duty of the judiciary is simply to give effect to the legislative policy
of a statute in the light of the policy of the Constitution. The duty of the judiciary

* Inaugural address for the Millennium Law Lecture Series organised by the Kerala High Court
Advocates' Association on October 21, 1999 at Kochi.
** Chief Justice of India.

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150 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

is to consider and decide whether a particular statute accords o

the Constitution and make a declaration accordingly.

The legislature, the executive and the judiciary are three co-o
of the state. All the three are bound by the Constitution.
representing the executive, the elected candidates as members
representing the legislature and the judges of the Supreme Cou
courts representing the judiciary have all to take the oaths pre
third schedule to the Constitution. All of them swear to bear true faith and
allegiance to the Constitution. When it is said, therefore, that the judiciary is
the guardian of the Constitution, it is not implied that the legislature and the
executive are not equally to guard the Constitution. For the progress of the
nation, however, it is imperative that all the three wings of the state function in
complete harmony.

A judicial decision either stigmatises or legitimises a decision of the

legislature or of the executive. In either case the court neither approves nor
condemns any legislative policy, nor is it concerned with its wisdom or
expediency. Its concern is merely to determine whether the legislation is in
conformity with or contrary to the provisions of the Constitution. It often
includes consideration of the rationality of the statute/Similarly, where the
court strikes down an executive order, it does so not in a spirit of confrontation
or to assert its superiority but in discharge of its constitutional duties and the
majesty of the law. In all those cases, the court discharges its duty as a judicial
sentinel.

In his 1998 Hamlyn Lectures (50th series) titled "Freedom, Law & Justice",
Lord Justice Stephen Sedley said:

What earns the courts far less public approbation, though it is

what they do far more often, is their upholding as rational and
fair of a variety of governmental initiatives which are almost daily
challenged in the High Court. It is sometimes forgotten by aspiring
village Hampdens that the protection of good government is as
much the High Court's job as the castigation of misgovernment.
Here, in fact, as much as in the criminal process, is where the
communitarian dimension of law is displayed.

When the validity of an Act is challenged before a court of law, the judiciary
is required to consider the constitutionality of the statute on the touchstone of
the parameters fixed by the Constitution. It is no reflection either on the
government or on the Parliament that their views as to constitutionality are
again being reviewed by the judiciary. In interpreting the existing law, that is
to say, what the law is, the courts are required to keep the particular situation
in view and interpret the law so as to provide a solution to the particular problem
to the extent possible. This is a legitimate exercise by the judiciary of its

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2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 151

constitutional obligation by virtue of the role assigned to it in the constitution

scheme. The gaps in the existing law, which are filled by updating the law
result in the evolution of juristic principles, which in due course of time get
incorporated in the law of the land and thereby promote the growth of law.

Judicial review is an essential component of the rule of law, which is

basic feature of the Indian Constitution. Every state action has to be tested on
the anvil of rule of law and that exercise is performed, when occasion arises by
reason of a doubt raised in that behalf in the courts. This well-established
constitutional principle of the existence of the power of judicial review and its
need was indicated by Chief Justice Marshall in Marbury v. Madison1 :

It is emphatically the province and duty of the judicial department to

say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict
with each other, the Courts must decide on the operation of each. So
if a law be in opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the Court must either
decide that case conformably to the law, disregarding the Constitution;
or conformably to the Constitution, disregarding the law; the Court
must determine which of these conflicting rules governs the case.
This is of very essence of judicial duty. If, then, the Courts are to
regard the Constitution, and the Constitution is superior to any
ordinary Act of the Legislature, the Constitution, and no such ordinary
act (sic.), must govern the case to which they both apply.... Why
otherwise does it (the Constitution) direct the judges to take an oath
to support it?

Judicial institutions have a sacrosanct role to play not only for resolving
inter-se disputes but also to act as a balancing mechanism between the
conflicting pulls and pressures operating in a society. Courts of law are the
products of the Constitution and the instrumentalities for fulfilling the ideals
of the state enshrined therein. Their function is to administer justice according
to the law and in doing so, they have to respond to the hopes and aspirations of
the people because the people of this country, in no uncertain terms, have
committed themselves to secure justice - social, economic and political - besides
equality and dignity to all.

In human affairs, there is a constant recurring cycle of change and

experiment. A society changes as the norms acceptable to the society undergo
a change. The judges have been alive to this reality and while discharging their
duties have tried to develop and expound the law on those lines while acting
within the bounds and limits set out for them in the Constitution.

1. 2L Ed 60: 1 Cranch 137(1803).

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152 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42: 2-4

The progress of the society is dependant upon proper appli

to its needs and since the society today realises more than ever
and obligations, the judiciary has to mould and shape the law t
rights and obligations. The mere existence of a particular piece
legislation cannot solve the problems of the society at large un
interpret and apply the law to ensure its benefit to the right q
the court followed a policy of adhering to a narrow doctrine a
away from development of the law. Soon after the Constitution
in 1950 in A.K. Gopalan's çase2, the Supreme Court placed
and restrictive interpretation upon article 21 of the Constitutio
it was held in that case that "... the procedure established
procedure established by a law made by the State" and the
infuse in that procedure the principles of natural justice. The c
at the conclusion that article 21 excluded enjoyment of the free
under article 19. Gopalan 's case3 was decided soon after the Co
into force, more than 49 years ago. The judgement was mai
language of the Constitution and the requirements of the partic
the court. The law has not remained static. The doctrine o
fundamental rights as evolved in Gopalan's case4 was throw
the same Supreme Court, about two decades later in Bank
case5, and four years later in 1974, in Hardhan Saha 's case6, the
judged the constitutionality of preventive detention with refe
19 also.

Twenty eight years after the judgement in Gopalan's case7 , in 1978 the
Supreme Court in Maneka Gandhi's case8, pronounced that the procedure
contemplated by article 21 must be 'right, just and fair' and not arbitrary; it
must pass the test of reasonableness and the procedure should be in conformity
with the principles of natural justice and unless it was so, it would be no
procedure at all and the requirement of article 21 would not be satisfied.

Responding to the changing times and aspirations of the people, the

judiciary, with a view to see that the fundamental rights embodied in the
Constitution of India have a meaning for the down-trodden and the under-
privileged classes, pronounced in Madhav Haskot's case9 that providing free
legal service to the poor and needy was an essential element of the 'reasonable,

2. AIR 1950 SC 27.

3. Supra note 2.
4. Supra note 2.
5. AIR 1970 SC 564.
6. AIR 1974 SC 2154.
7. Supra note 2.
8. AIR 1978 SC 597.
9. AIR 1978 SC 1548.

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2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 153

fair and just procedure'. Again, in Hussainara Khatoon's case10 whi

considering the plight of the undertrials in jail, speedy trial was held to be a
integral and essential part of the 'right to life and liberty' contained in artic
21 of the Constitution of India. In Nandini Satpathy v. PL. Dani 11 , the Suprem
Court held that an accused has the right to consult a lawyer during interrogatio
and that the right not to make self-incriminatory statements should be widely
interpreted to cover the pre-trial stage also. Again, in Sheela Barse v. State of
Maharashtra 12 the Supreme Court laid down certain safeguards for arrested
persons. In Bandhua Mukti Morcha 's case13 the Supreme Court held that righ
to life guaranteed by article 21 included the right to live with human dignity
free from exploitation.

The courts have, thus, been making judicial intervention in case

concerning violation of human rights as an ongoing judicial proces
Decisions on such matters as the right to protection against solitar
confinement as in Sunil Batra v. Delhi Admn . 14, the right not be held i
fetters as in Charles Sobraj v. Supdt., Central Jail15 , the right against
handcuffing as in T.V. Vatheeswaran v. State of Tamil Nadu16 , the righ
against custodial violence as in Nilabati Behera v. State of Orissa17 , the
rights of the arrestee as in D.K.Basu v. State of West Bengal 18 , or th
right of the female employees not to be sexually harassed at the place o
work as in the case of Vishaka v. State of Rajasthan19 and Apparel Expor
Promotion Council v. A.K. Chopra 20 are just a few pointers in tha
direction.

An enforceable right to compensation in case of 'torture' including

'mental torture' inflicted by the state or its agencies is now a part of the
public law regime in India. In many of its decisions, the Supreme Court of
India started a new era of compensatory jurisprudence in Indian legal
history. This newly forged weapon to help the torture victims has been
sharpened in many of its decisions, like, Rudal Shah v. State of Bihar21,
Bhim Singh v. State ofJ&K 22, Saheli v. Commissioner of Police13.

10. AIR 1979 SC 1369.

11. AIR 1978 SC 1025.
12. 1983(1) SCC 96.
13. AIR 1984 SC 802.
14. 1978 (4) SCC 494.
15. 1978 (4) SCC 104.
16. 1983 (2) SCC 68.
17. 1993 (2) SCC 476.
18. 1997(1) SCC 426.
19. 1997 (6) SCC 241.
20. JT 1999(1) SC 61.
21. AIR 1983 SC 1086.
22. 1984 SCC Supp. 504.
23. (1990)1 SCC 422.

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1 54 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

In the case of Nilabati Behera v. State 24 , the court crystall

right to compensation, which was further reiterated in D.K. B
W.B.25 In D.K. Basu's case the court went to the extent of
compensation was being directed by the courts to be paid by t
has been held vicariously liable for the illegal acts of its official
to clause 9(5) of ICCPR by the Government of India had lost it
fact, the sentencing policy of the judiciary in torture rela
erring officials in India, has become very strict. For an establ
fundamental rights, compensation can now be awarded in the e
law jurisdiction by the Supreme Court and high courts, in add
law remedy for tortuous action and punishment to wrongdoer
law.

In Nilabati Behera's case26, the Supreme Court said:

The Court, where the infringement of fundamental right is

therefore, cannot stop by giving a mere declaration. It mu
further and give compensatory relief, not by way of dama
civil action but by way of compensation under the pu
jurisdiction for the wrong done, due to breach of public du
State of not protecting the fundamental right to life of ci
repair the wrong done and give judicial redress for legal in
judicial conscience.

What has been and is being done by the higher judiciary in

not something which can be said to be a 'new innovation'.
ourselves into believing that the present generation is the pion
Ours is only a participatory role in an ongoing judicial process
the basis for the development and evolution of law, which can
to remain static. Development of law by the Supreme Cou
States would provide an apt example. In Dred Scott v. Sandfor
held that a 'negro' was the property of his master and not a '
legitimising 'slavery' and discrimination on the grounds of 'co
This doctrine was cast away, a century later by the same cour
Board of Education2* , when it said that slavery is a de-human
institution denying human dignity to such an extent that no
uphold it and later that court gave it a decent burial in Bak
court realised that the values which guided the society when Dr

24. Supra note 17.

25. (1997)1 SCC 416.
26. Supra note 17.
27. 15 L Ed 691 (1857).
28. 347 US 483: 98 L Ed 873 (1954).
29. 438 US 265: 57 L Ed 2d 750 1978).
30. Supra note 27.

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2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 155

came to be decided had undergone a sea change and could not stand the scrutiny
of the age when the judgement in Brown's case31 or Bakke 's case32 was given.

The judiciary has, thus, been rendering judgements which are in tune and
temper with the legislative intent while keeping pace with time and jealously
protecting and developing the dimensions of the fundamental human rights of
the citizens so as to make them meaningful and realistic. New contents ar
being provided to criminal justice also resulting in prison reforms and
humanitarian treatment of the prisoners and the undertrials. The doctrine of
equality has been employed to provide equal pay for equal work. Ecology,
public health and environment are receiving attention of the courts. Exploitation
of children, women and labour is receiving the concern it deserves. The
executive is being made more and more to realise its responsibilities.

In view of the operations by the courts on a wider canvass of judicial

review, a potent weapon was forged by the Supreme Court by way of public
interest litigation (PIL) also known as social action litigation. The Supreme
Court has ruled that where judicial redress is sought in respect of a legal injury
or a legal wrong suffered by persons, who by reason of their poverty or disabilit
are unable to approach the court for enforcement of their fundamental rights,
any member of the public, acting bona fide , can maintain an action for judicial
redress. Thus, the underprivileged and the downtrodden have secured acces
to court through the agency of a public-spirited person or organisation. This
weapon was effectively used by the Supreme Court and the high courts, being
Constitutional courts, to a large extent from 1980 onwards. The decisions of
the Supreme Court in Sunil Batra v. Delhi Administration33', Municipal Council ,
Ratlam v. Vardhichand 34; Akhil Bharatiya Soshit Karamchari Sangh, Railway
v. Union of India35 and umpteen number of decisions thereafter by the Suprem
Court and more particularly the decision of the Supreme Court in S.P. Gupta 's
case36 represent watersheds in the development of PIL and liberalisation o
the concept of locus standi to make access to the courts easy. The principl
underlying order 1 rule 8, Code of Civil Procedure has been applied in public
interest litigation to entertain class action and at the same time to check misuse
of PIL. The appointment of amicus curiae in these matters ensures objectivity
in the proceedings. Judicial creativity of this kind has enabled realisation of
the promise of socio-economic justice made in the preamble to the Constitutio
of India.

31. Supra note 28.

32. Supra note 29.
33. Supra note 14.
34. AIR 1980 SC 1622.
35. AIR 1981 SC 298.
36. AIR 1982 SC 149.

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156 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

With a view to retain legitimacy and its efficacy, the pot

PIL forged for the benefit of the weaker sections of society
a class, cannot agitate their legal problems by themselves has to
so that it may not get blunted by wrong or overuse. Care has
that PIL essentially remains Public Interest Litigation and
either Political Interest Litigation or Personal Interest Litigat
Interest Litigation or used for persecution. If that happ
unfortunate. PIL would loose its legitimacy and the credibilit
would suffer. Finding the delicate balance between ensuring ju
around us and yet maintaining institutional legitimacy is a con
for the higher judiciary. The courts must be careful to see th
zeálousness they do not consciously or unconsciously cause
confusion in the law. In that event, the law will not only deve
lines instead of straight and consistent path but the judiciary
in the bargain get tarnished and its respectability eroded. Th
day. Judicial authoritarianism cannot be permitted under any

The expanded concept of locus standi in connection with P

interpretation from time to time, has expanded the jurisdict
courts exercising judicial review. This expanded role has be
of 'judicial activism' by those who are critical of this exp
judiciary. The main thrust of the criticism is that the judiciar
to the administration is usurping the functions of the legisla
executive and is running the country and, according to some
these critics of the judiciary overlook is that it is the tardin
and the indifference of the executive to address itself to the
citizens about violations of their human rights which provid
for judicial intervention. In cases where the executive refuse
legislative will or ignores or thwarts it, it is surely legitimate
in and ensure compliance with the legislative mandate. W
apprised of and is satisfied about gross violations of basic
cannot fold its hands in despair and look the other way.
neither prevaricate nor procrastinate. It must respond to
oppressed and the downtrodden for justice by adopting ce
principles within the parameters of the Constitution and
directions in order to render full and effective relief. If the
shut its door to the citizen who finds the legislature as n
executive indifferent, the citizen would take to the streets a
bad both for the rule of law and democratic functioning of
have come to realise and accept that judicial response to hum
be blunted by legal bigotry. Courts no longer feel bound by
locus standi where the question involved is injury to public i
in this country has been the most vigilant defender of demo
values and constitutionalism.

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2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 157

Judicial activism in India encompasses an area of legislative vacuum in

the filed of human rights. Judicial activism reinforces the strength of democrac
and reaffirms the faith of the common man in the 'rule of law'. The judiciar
however, can act only as an alarm clock but not as a timekeeper. After giving
the alarm call it must ensure to see that the executive performs its duties in th
manner envisaged by the Constitution.

It would be seen that judicial activism which is the search for the spirit of
law, has been profitably used by powerless minorities, such as bonded labour,
prison inmates, undertrial prisoners, sex workers and such other powerle
minority groups as are crusading for protection of human rights of women an
children or seeking redressai against governmental lawlessness, or relief against
developmental policies which benefit the haves at the cost of the have-nots.

Judicial activism, however, is not an unguided missile. It has to be

controlled and properly channelised. Courts have to function within established
parameters and constitutional bounds. Decision should have a jurisprudenti
base with clearly discernible principles. Limits of jurisdiction cannot be pushe
back so as to make them irrelevant. Courts have to be careful to see that they
do not overstep their limits because to them is assigned the sacred duty
guarding the Constitution. People of this country have reposed faith and trus
in the courts and, therefore, the judges have to act as their trustees. Betrayal o
that trust would lead to judicial despotism which posterity would not forgive

It must always be remembered that the judges in exercise of their power

of judicial review are not expected to decide a dispute or controversy which i
purely theoretical or for which there are no judicially manageable standards
available with them. The courts do not, generally speaking, interfere with th
policy matters of the executive unless the policy is either against the Constitutio
or some statute or is actuated by mala fides . Policy matters, fiscal or otherwis
are thus best left to the judgement of the executive. The danger of judiciary
creating a multiplicity of rights without the possibility of adequate enforceme
will in the ultimate analysis be counter productive and undermine the credibili
of the institution. Courts cannot 'create rights' where none exist nor can the
go on making orders which are incapable of enforcement or violative of othe
laws or settled legal principles.

Article 142 of the Constitution of India vests in the Supreme Court powers
of very wide amplitude. The plenary jurisdiction under article 142 is the residu
source of power which the Supreme Court may draw upon as necessary
whenever it is just and equitable to do so and in particular to ensure th
observance of the due process of law, to do complete justice between the partie
while administering justice according to law. In Supreme Court Bar Associatio
v. Union of India and another31- while dealing with the power under article

37. (1998) 4 SCC 409.

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158 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

142 of the Constitution, a constitution bench of the Supreme Co

It, however, needs to be remembered that the powers conferre

Court by Article 142 being curative in nature cannot be const
powers which authorise the Court to ignore the substantive rig
litigant while dealing with a cause pending before it. This powe
be used to 'supplant' substantive law applicable to the case
under consideration of the Court. Article 142, even with the w
its amplitude, cannot be used to build a new edifice where non
earlier, by ignoring express statutory provisions dealing with
and thereby to achieve something indirectly which cannot be a
directly.... The Supreme Court in exercise of its jurisdictio
Article 142 has the power to make such order as is necessary f
complete justice 'between the parties in any cause or matter p
before it'. The very nature of the power must lead the Court
limits for itself within which to exercise those powers.. . .

Thus, even under article 142(1) of the Constitution, the Su

held that the court does not have any jurisdiction to make an
inconsistent with the express statutory provisions of substantive
less, inconsistent with any constitutional provision.

It is in fact stating the obvious to say that courts must, whil

the power of judicial review, exercise proper restraint and base t
on recognised doctrines or principles of law. Judicial activism
restraint are two sides of the same coin. It is therefore essential to remember
that judicial restraint in the exercise of its functions is of equal importance for
the judiciary while discharging its judicial obligations under the Constitution.
With a view to see that judicial activism does not become 'judicial adventurism' ,
the courts must act with caution and proper restraint. They must remember
that judicial activism is not an unguided missile and failure to bear this in
mind would lead to chaos. People would, thus, not know which organ of the
state to look to for ensuring check on the abuse or misuse of power.

It would be prudent to remember the following observations of Lord Justice

Lawton in Laker Airways 38 :

In the United Kingdom aviation policy is determined by ministers

within the legal framework set out by Parliament. Judges have nothing
to do with either policy making or the carrying out of policy. Their
function is to decide whether a minister has acted within the powers
given (sic.) him by statute or the common law. If he is declared by a
court, after due process of law, to have acted outside his powers, he
must stop doing what he has done until such time as Parliament gives

38. 1977 (2) WLR 234 at 267.

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2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 159

him the powers he wants. In a case such as this I regard myself as a

referee. I can blow my judicial whistle when the ball goes out of
play; but when the game restarts I must neither take part in it nor tell
the players how to play.

Thus, 'judicial whistle' needs to be blown for a limited purpose and wit
caution. It needs to be remembered that courts cannot run the government
the administration indulge in abuse or non-use of power and get away wit
The courts have the duty of implementing the constitutional safeguards t
protect individual rights but they cannot push back the limits of the Constit
to accommodate the challenged violation.

All it means is that judges are expected to be circumspect and se

disciplined in the discharge of their judicial functions. It is an onerous dut
cast on the judiciary to see that either inadvertently or overzealously, the
not allow the instrumentality of the courts to be polluted thereby eroding p
trust and confidence in the institution.

Judicial activism is a delicate exercise involving creativity. Great skill

required for innovation. Caution is needed because of the danger of populi
imperceptibly influencing the psyche. Public adulation must not sway the ju
and personal aggrandisement must be eschewed. It is imperative to pre
the sanctity and credibility of judicial process. Let us all strive to achieve
end.

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