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Judicial activism and

overreach in India
by R Shunmugasundaram

“Courts have played a salutary and corrective role in Judicial review is understood to be the revision of the
innumerable instances. They are highly respected by our decree or sentence of an inferior court by a superior court.
people for that. At the same time, the dividing line between Judicial review of executive or legislative actions is
judicial activism and judicial overreach is a thin one. controversial, unlike the judicial review of judicial actions.
Prime Minister Dr Manmohan Singh said the above The orders passed by lower courts which are either being
while addressing a conference of Chief Ministers and Chief set aside, revised or modified, are greater in number than
Justices of the High Court in April 2007 at New Delhi. reviews relating to executive orders or legislative actions.
This statement is perceived to be the fall out from the However, criticisms of the judicial review of executive and
widespread debates going on in various forums in India legislative actions are stronger and more vociferous.
regarding judicial accountability. At the conference of Chief In our constitutional scheme the judiciary alone has
Justices of High Courts and Chief Ministers in the previous been entrusted with the power and duty to test the
year the Prime Minister, Dr Manmohan Singh, said: constitutional validity of legislative provisions and the
“There is growing dissatisfaction regarding the functioning of validity of administrative actions. The superior courts are
the executive and the legislature and their ability to deliver empowered to declare a statute ultra vires the constitution
effective governance to meet the needs and challenges of our and to nullify an executive action as unconstitutional.
times. These powers of judicial review are given not with a view
to make the judiciary a supreme body superior to the other
In this background, it is a matter of great satisfaction that wings of the constitutional framework, but to ensure a
the public at large continues to hold our judiciary in high system of checks and balances between the legislature and
esteem. The judiciary as custodians and watchdogs of the the executive on one hand, and the judiciary on the other.
fundamental rights of our people has discharged its The mechanism has been devised to function in such a way
responsibility very well indeed.” that the unconstitutional actions of one of the wings are
This article attempts to highlight some of the incidents corrected by the other, and vice versa. It is not the purpose
that would have contributed to the Prime Minister’s of judicial review to criticise legislative or executive actions,
change of stance. A noted constitutional lawyer and former as the opposition is expected to fulfil this function in a
Solicitor General of India, Mr T R Andhyarjuna, wrote: democratic polity. On the contrary, the judiciary’s role is
to review executive and legislative actions and declare
…“whilst the Indian higher judiciary is perhaps the most whether those actions conform with the dictates of the
powerful judiciaries in the world today and the socialist Constitution of India.
perception of it is very high, accountability mechanisms
particularly in the disciplining of judges of superior court and Justice Dr A S Anand, former Chief Justice of India and
the representative character of the courts have not matched former Chairperson of the Human Rights Commission of
with the power and esteem” (Judicial Accountability: India’s India, while addressing on “Judicial review – judicial
Methods and Experience 2003). activism – need for caution” said:
“The legislature, the executive and the judiciary are three co-
JUDICIAL REVIEW ordinate organs of the state. All the three are bound by the
The Constitution of India provides for judicial review Constitution. The ministers representing the executive, the
under Articles 32 (Supreme Court) and 226 (High Court). elected candidates as Members of Parliament representing the
The Supreme Court has pronounced that judicial review is legislature and the judges of the Supreme Court and the High
a fundamental feature of the constitution. The power of Courts representing the judiciary have all to take oaths
judicial review by courts therefore is not subject to prescribed by the Third Schedule of the Constitution. All of
amendment and thus has been effectively taken out of the them swear to bear true faith and allegiance to the
field of Parliament’s power to amend or in anyway abridge. Constitution. When it is said, therefore, that the judiciary is
The judiciary has declared a “hands-off ” command to the the guardian of the Constitution, it is not implied that the
22 legislature. legislature and the executive are not equally to guard the
Amicus Curiae Issue 72 Winter 2007
 Constitution. For the progress of the nation, however, it is of violations of fundamental human rights were reported
imperative that all the three wings of the state function in during the emergency regime, but still the approach of the
complete harmony. courts was conservative.
“A judicial decision either ‘stigmatises or legitimises’ a decision In ADM Jabalpur v Shukla (1976) 2 SCC 521 the Supreme
of the legislature or of the executive. In either case the court Court held that a detainee under preventive detention did
neither approves nor condemns any legislative policy, nor is it not have the common law right of securing from the courts
concerned with its wisdom or expediency. Its concern is merely his release from an illegal and arbitrary preventive
to determine whether the legislation is in conformity with or detention order, even if it was passed without the authority
contrary of the provision of the Constitution It often includes of law. The reason given by the court was that the
consideration of the rationality of the statute. Similarly, where fundamental rights guaranteed under the constitution were
the court strikes down an executive order, it does so not in a suspended during the emergency.
spirit of confrontation or to assert its superiority but in
There was a huge change in judicial approach after
discharge of its constitutional duties and the majesty of the
emergency rule.
law. In all those cases, the court discharges its duty as a
judicial sentinel.”
THE JUDICIARY IS NOT A DESPOTIC
BRANCH OF THE STATE
JUDICIAL ACTIVISM
Although the Supreme Court of India has widened its
Courts of today are not remaining passive, with the
scope of interference in public administration and the
negative attitude of merely striking down a law or
policy decisions of the government, it is well aware of the
preventing something being done. The new attitude is
limitations within which it should function. In the case of
towards positive affirmative actions, and issuing orders and
P Ramachandran Rao v State of Karnataka, reported in (2002)
decrees directing remedial actions.
4 SCC 578, has observed that
In the estimation of an ordinary Indian citizen the
“The Supreme Court does not consider itself to be an
legislature and the executive have failed miserably in their
imperium in imperio or would function as a despotic branch
cherished duties towards the general public. The executive
of the State.”
and the legislators are made accountable for their actions.
Their nearness to the people generates high expectations The Indian Constitution does not envisage a rigid
from the public and attracts sharp criticism whenever their separation of powers, the respective powers of the three
actions do not follow the expected lines. The common wings being well-defined with the object that each wing
citizen feels that the administration has become so must function within the field earmarked by the
apathetic and non-performing that they have no other constitution. The Supreme Court of India took all this into
option except to approach the judiciary to redress their account in the judgment reported in (1986) 4SCC 632 in
grievances. It is under this situation that the judiciary has the case of State of Kerala v A Lakshmi Kutty, stating that
taken an activist approach. Judicial activism has flourished
“Special responsibility devolves upon the judges to avoid an
in India and acquired enormous legitimacy with the Indian
over activist approach and to ensure that they do not trespass
public. However, this activist approach by the judiciary is
within the spheres earmarked for the other two braches of the
bound to create friction and tension with the other organs
State.”
of the state. Such tension is natural and to some extent
desirable. The judges should not enter the fields constitutionally
earmarked for the legislature and the executive. Judges
Judicial activism earned a humane face in India with the
cannot be legislators, as they have neither the mandate of
liberalising of access to justice and granting of relief to
the people nor the practical wisdom to understand the
disadvantaged groups and the have-nots through public
needs of different sections of society. They are forbidden
interest litigation (PIL). A postal letter or even a postcard
from assuming the role of administrators; governmental
addressed to the court is accepted for the purpose of
machinery cannot be run by judges as that is not the
initiating prerogative writs, with courts disregarding the
intention of our constitution makers. While interpreting
technicalities. The Supreme Court of India relaxed the
the provisions of the constitution the judiciary often
traditional concept of locus by allowing public-spirited
rewrites them without explicitly stating so. As a result of
citizens to bring public causes to the court. Thus, the
this process some of the personal opinions of the judges
number of PIL actions has increased since 1977. The
crystallize into legal principles and constitutional values.
growth of PIL post 1977 is mainly attributed to incidents
which happened during emergency rule between 1975 and A classic example of the above problem is the recent
1977. One can see the marked differences between the order by the Supreme Court of India to demolish and seal
judicial approach prior to 1977 and post emergency rule in off all the commercial entities run in residential areas of
India. This change of approach was in response to the Delhi. Even though the Delhi Government passed a Bill
changing times and aspirations of the people. Several cases regularizing all the constructions, which were illegal, the 23
Amicus Curiae Issue 72 Winter 2007
 Supreme Court of India took the view that all those places Passport Act. She contended that the procedure
should be sealed off. The Delhi Municipal Corporation contemplated under the Act was in violation of the
was reluctant to continue with the sealing drive because it constitution. The Supreme Court held that life does not
was against the popular sentiments of the people. merely mean an animal-like existence, but an existence
However, the Supreme Court remained steadfast in its with all the freedoms associated with it. The Supreme
decision and the municipal authorities had no other option Court stated for the first that it is not enough merely to
except to go ahead. There were demonstrations and prescribe a procedure for denying life and liberty; the
violence against the sealing drive; the Congress Party, which procedure itself must be fair and reasonable. This paved
was in power during the sealing drive, lost municipal the way for the concept of substantive due process, which
councillor seats in the elections conducted during that is not mentioned directly in the Indian Constitution
time. The argument over the economic, social and (unlike the American Constitution).
physiological impact the sealing drive would create did not The concept of substantive due process was imported
dissuade the court. into Article 21 by the decision in Maneka Gandhi. It was
The Supreme Court of India is well aware of its asserted by the Supreme Court that the courts have the
limitations, and hence exercises self-restraint and caution power to not only judge the fairness and justness of
over encroachment of the field exclusively reserved for the procedure established by a law for the purpose of Article
legislature and the executive. The seven judge bench of the 21, but also the power to judge and decide the
Supreme Court declared in P Ramachandra Rao’s case that: reasonableness of the law itself.
“The primary function of the Judiciary is to interpret the law.
LEGISLATION BY THE JUDICIARY
It may lay down principles, guidelines and exhibit creativity in
the field left open and unoccupied by legislation. But they The Supreme Court of India took serious stance on the
cannot entrench upon in the field of legislation properly sexual harassment of women in the work place. It stated
meant for the legislature. It is no difficult to perceive the that:
dividing line between permissible legislation by judicial “Each Incident of sexual harassment of woman at workplace
directives and enacting law – the field exclusively reserved for results in violation of the fundamental rights of Gender
the legislature.” Equality and the Right to Life and Liberty.”
In the case of Keshavanada Bharathi (1973) the Supreme In the case of Vishaka v State of Rajasthan, reported in
Court held for the first time that a constitutional (1997) 6 SCC 241, the Supreme Court lamented that the
amendment duly passed by the legislature was invalid for legislature had not brought in comprehensive legislation to
damaging or destroying its basic structure. This was a deal with sexual harassment of women in the workplace,
gigantic judicial leap unknown to any legal system. The and declared the law as follows:
supremacy and permanency of the constitution was
“In view of the above, and in the absence of enacted law to
ensured by this pronouncement, with the result that the
provide for the effective enforcement of the basic human right
basic features of the constitution are now beyond the reach
of gender equality and guarantee against sexual harassment
of Parliament. The criticism of this judgment by the
and abuse, more particularly against sexual harassment at
Supreme Court is that since the court has not exhaustively
work places, guidelines and norms are hereby laid down for
defined what these basic features are, the judicial arm can
strict observance. This is done in exercise of the power
be extended any distance at will.
available under Article 32 for enforcement of the fundamental
Article 21 of the Constitution of India provides that no rights and it is further emphasised that this would be treated
person shall be deprived of its life and liberty except as the law declared by the Supreme Court under Article 141
according to the procedure established by law has become of the Constitution of India.”
the most dynamic article in the hands of the Indian courts.
This is a clear case of judicial legislation and usurpation
A whole new set of rights which were not explicitly
of the power of the legislature, but ultimately it benefits the
provided by the constitution were read into Article 21.
people. When the legislature slumbers, judicial usurpation
obtains legitimacy and approval from the general public.
SUBSTANTIVE DUE PROCESS AND ARTICLE There is frequent criticism that, even though 10 years have
21 elapsed since this Supreme Court decision, the legislature
The Supreme Court of India gave a new interpretation has yet to come up with comprehensive legislation dealing
to Article 21 of the Constitution of India in the case of with the sexual harassment of women in the workplace.
Maneka Gandhi v Union of India. It became a great
trendsetter for further evolution of notions of HISTORY OF JUDICIAL ACTIVISM IN INDIA
reasonableness and fairness.
As can be the case in the United States of America and
When Maneka Gandhi’s passport was impounded, she the United Kingdom, ideological confrontation based on
24 was served with the required notice under the Indian the genuine concern for the welfare of the people arose
Amicus Curiae Issue 72 Winter 2007
between the executive and legislature on the one hand and In R C Cooper v Union of India (1970), the legislative
the judiciary on the other. A conservative executive and a competence of Parliament to enact the Banking Companies
progressive judiciary, or a progressive Parliament and a (Acquisition and Transfer of Undertakings) Act, known as
conservative judiciary coexisting at the same point of time, the Bank Nationalisation Act, was in question. The court
form the basis of judicial activism or judicial overreach, as struck down the Act primarily on the ground of
opposed to executive excesses or executive enthusiasm unreasonableness, explaining that the restriction imposed
beyond the bounds of law. on the banks to carryon “non-banking business” in effect
made it impossible for the banks, in a commercial sense, to
The evolution of the theory of judicial activism in India
carry on any business at all.
can be traced back to the late 1960s or early 1970s during
the time when Mrs Indira Gandhi was the Prime Minister In Golaknath v State of Punjab (1971), the Supreme Court
of India and an eminent lawyer and legal luminary, Mohan while dealing with the constitutional validity of the 17th
Kumaramangalam, was the Union Minister. When the late Amendment to the constitution evolved the concept of
Mrs Gandhi attempted to introduce progressive socialistic “prospective overruling” and held that Parliament had no
measures in order to implement her favourite slogan “garibi power to amend Part III of the constitution, or take away,
hatao” (remove poverty) by abolishing Privy Purses and or abridge any of the fundamental rights.
privileges given to the erstwhile rajas and princes of the In the fundamental rights case (Keshavananda Bharti v
princely states of pre-independent India, and nationalizing State of Kerala, 1973), the Supreme Court rendered a
the 14 major banks so as to serve the cause of the poorer judgment that can be regarded as an important milestone
sections of the society in a more meaningful manner, a in the Indian constitutional jurisprudence. While dealing
conservative judiciary did not take it kindly and struck the question as to the extent of the amending power
down the relevant legislation as unconstitutional. What conferred by Article 368 of the constitution, the court
happened to President Franklin Roosevelt during the evolved the theory of “basic structure.” A bench of 13
period of the great depression and to his new deal judges held by a majority of 7:6 that the Parliament had
legislation happened in India to Mrs Gandhi. The wide powers to amend the constitution extending to all
judgment of the Supreme Court of India in the Privy Purse articles of the constitution, but this power could not be
abolition and bank nationalisation cases was considered by used in an unlimited way to abridge, abrogate or destroy
Mrs Gandhi to be judicial overreach, and the reaction was the “basic structure” or the “basic framework” of the
at once strong and unequivocal. It is believed that on the constitution.
advice of Mr Kumaramangalam the conservative and most In VC Shukla v Delhi Admin (1980), the court while
senior judges of the Supreme Court who participated in dealing with the legislative competence of the state to pass
the majority judgment in the above cases were passed over a law establishing special courts for dealing with offences
for appointment to the post of Chief Justice of India. The committed by persons holding high public office, held such
dissenting judge, Mr A N Ray, who was fourth in the line courts to be valid. It also held that the court could strike
of seniority, was appointed, and this resulted in the down an administrative act if bias or mala fides was proved.
resignation of the three senior judges (Justices Hegde, The court in this case clarified that the theory of “basic
Shelat and Grover). This marked the starting point of the structure” would apply only to constitutional amendments
theory of judicial activism that actually resulted from the and not to an ordinary law passed by the Parliament or the
stand-off between the executive and the judiciary. state legislature.
In the Bhagalpur Blinding case (Khatri (II) v State of Bihar,
EARLY CASES OF JUDICIAL ACTIVISM
1980), it was held that Article 21 included the right to free
The following Supreme Court cases provide a useful legal aid to the poor and the indigent and the right to be
insight into the growth and development of judicial represented by a lawyer. It was also held that the right to
activism in independent India. be produced before a magistrate within 24 hours of arrest
In the Privy Purse case (Madhav Rao Jivaji Rao Scindia v must be scrupulously followed.
Union of India, 1970) the broad question was whether the In Fertilizer Corpn Kamgar Union v Union of India (1981),
President rightly exercised his power in de-recognising the the petitioners of a public enterprise challenged the sale of
princes. In this case, the court ruled that by virtue of the plant and machinery of the undertaking, as it resulted
Article 53 of the constitution, the executive power of in their retrenchment. The Supreme Court held that sale
union vested in the President must be exercised “in resulting in retrenchment had not violated their rights
accordance with law”. That power was intended to be under Article 19(1)(g) of the constitution, and likened it to
exercised in aid of, not to destroy, the constitution. An termination of employment due to abolition of posts. The
order merely “de-recognizing” a ruler without providing court ruled that the petitioner did not have the locus standi
for the continuation of the institution of his rule – an to petition under Article 32. While reiterating that the
integral part of the constitutional scheme – was therefore jurisdiction of the Supreme Court under Article 32 was
plainly illegal. part of the “basic structure” of the constitution, the court 25
Amicus Curiae Issue 72 Winter 2007
 held that since the petitioners’ fundamental rights were not v Union of India (1983) the court gave significant directions
violated, a petition under Article 32 was not maintainable for the protection of accused and convicts (male and
even though one under Article 226 may be permissible. female) concerning their safety and security, better
In T V Vaitheeswaran v State of TN (1981), the Supreme conditions in prisons, separate lock-ups for female
Court held that a delay in the execution of the death prisoners, etc.
sentence for two years would entitle the prisoner to
commutation of the death sentence to one of life JUDICIAL ACTIVISM AND ENVIRONMENTAL
imprisonment. However, in Sher Singh v State of Punjab JURISPRUDENCE
(1983) this view was overruled. In the latter case, the The steady growth of principles and doctrines that have
delay was due to the conduct of the convict. enriched environmental jurisprudence owe their existence
In the judges transfer case (S P Gupta v Union of India, to PIL cases and the accompanying activist approach of the
1983), the court while dealing with the question of the judiciary. In the Oleum gas leak case, the Supreme Court
meaning of the word “consultation” in Article 124(2) held formulated the doctrine of absolute liability for harm
that in the matter of the appointment of judges, the caused by hazardous and inherently dangerous industries.
executive is supreme and is not bound by the views It also gave directions which by implication have expanded
expressed by the Chief Justice of India or the other judges the jurisdiction of the Supreme Court under Article 32.
of the SC. However, this view has been overruled in S C Thereafter, right from the rural litigation Kendra case,
Advocates-on-Record Association v Union of India in 1993 to the court has been propounding principles such as
ensure judicial supremacy in the appointment of judges. “sustainable development”, the “polluter pays” principle,
In the Asian Games case (People’s Union for Democratic and also adopting certain other principles from
Rights v Union of India, 1982), the court held that workers international instruments such as the Stockholm
temporarily employed by contractors for construction Declaration, Rio Declaration, Kyoto Protocol, Biodiversity
work were entitled to the benefit of the relevant labour and Convention, the various United Nations Environmental
industrial laws and to seek for their implementation under Programmes, etc. In the Narmada Bachao Andolan case,
Article 32 of the constitution. The court directed the the court has ensured that development by way of building
government and the concerned authorities to ensure of dams does not take its toll on the employment, shelter
compliance with the laws in respect of workers connected and the homes of people. It has directed the State
with the construction work of the ensuing Asian Games in Governments concerned to rehabilitate the displaced
Delhi. people before going ahead. The courts have performed
yeomen service to the welfare of the public, especially in
In A R Antulay v R S Nayak (1984) the court, while dealing
the areas of custodial deaths, prisoners’ rights, abolition of
with the question of prior sanction for prosecution of a
bonded labour, labourers’ rights, fixing absolute liability on
public servant, held that an MLA was not a ‘public servant’
within the meaning of the relevant clauses as he was not hazardous industries, condition of mental homes,
remunerated by the fees paid by the executive in the form regulating pollution, enlarging the scope of “rights to life”,
of the State Government. etc.

THE PIL REGIME: A HEYDAY OF JUDICIAL TRESPASSING THE BOUNDARIES:

ACTIVISM TRANSFORMATION FROM ACTIVISM TO
OVERREACH
The proponents of judicial activism were judges like V R
Krishna Iyer, P N Bhagwati, Chinnappa Reddy and D A In all the above-mentioned cases the judiciary has called
Desai, who have rendered many judgments touching upon upon the executive to perform its obligations under the
basic rights of the people. It is often said that the genesis constitution and the laws. While this was and will continue
of judicial activism lies in the evolution of public interest to be desirable, it will be against the scheme and
litigation and the consequent liberalization of the locus philosophy of the constitution if the judiciary oversteps
standi rule. PIL was originally conceived with the noble and dons the mantle of the executive and the legislature.
objective of empowering the downtrodden, the poor and While in cases related to labour policy (eg minimum
the needy by ensuring justice to them by relaxing the rigour wages, working conditions etc) and also in respect of issues
of locus standi. In 1979 in Hussainara Khatoon v State of Bihar, related to environmental and ecological matters judicial
the Supreme Court first took up a PIL action on behalf of behaviour can be perceived to be proactive, judicial
prisoners awaiting trial who had been languishing in jails intervention in matters related to fiscal policy, (political
for periods longer than the maximum punishment affairs, internal proceedings of the legislature etc) can be
prescribed for the offences concerned. The court in this categorized as judicial overreach. Frequent interventions
case issued directions ensuring appropriate relief to the tend to weaken the funding of those two wings of the
prisoners. Thereafter, there was no looking back for PIL; constitution, which are expected to perform by
26 again, in Sunil Batra v Delhi Admin (1980) and in Sheela Barse themselves.
Amicus Curiae Issue 72 Winter 2007
 In the words of Justice J S Verma (former Chief Justice democracy. Justice Markandey Katju in Minor
of India): Priyadarshini’s case (2005 (3) CTC 449) has explained
thus:
“…the judiciary should only compel performance of duty by
the designated authority in case of its inaction or failure, “Under the Constitution, the legislature, the executive and the
while a takeover by the judiciary of the function allocated to judiciary have their own broad spheres of operation. It is,
another branch is inappropriate. Judicial activism is therefore, important that these three organs of the state do
appropriate when it is in the domain of legitimate judicial not encroach upon the domain of another and confine
review. It should neither be judicial ‘adhocism’ nor judicial themselves to their own, otherwise the delicate balance in the
tyranny.” Constitution will be upset… The judiciary must therefore
exercise self-restraint and eschew the temptation to act as a
The acknowledgement of this difference between
super legislature. By exercising restraint, it will only enhance
“judicial activism” and “judicial overreach” is vital for the
its own respect and prestige… Judicial restraint is consistent
smooth functioning of a constitutional democracy with the
with and complementary to the balance of power among the
separation of powers as its central characteristic and
three independent branches of the state. It accomplishes this
supremacy of the constitution as the foundation of its
in two ways. First it not only recognizes the equality of the
edifice.
other two branches with the judiciary, it also fosters that
Glaring instances of judicial overreach include the police equality by minimizing inter-branch interference by the
reforms case; the sealing of unauthorised commercial judiciary… Second, it tends to protect the independence of
operations in Delhi; demolition of unauthorised the judiciary… If judges act like legislators or administrators
constructions in the city of Chennai and the creation of a it follows that judges should be elected like legislators or
Monitoring Committee to oversee the same; the judgment selected and trained like administrators. The touchstone of
of the Supreme Court in S R Bommai v Union of India (1994) an independent judiciary has been its removal from the
laying down that the Presidential Proclamation dissolving a political and administrative process… Thus, judicial restraint
State Legislative Assembly is subject to judicial review and complements the twin, overarching values of the independence
that if the court strikes down the proclamation, it has the of the judiciary and the separation of powers.”
power to restore the dismissed State Government to office;
In the recent cash for query case (Raja Ram Pal v Hon’ble
the Supreme Court’s directions to videograph the
Speaker, Lok Sabha, 2007) a constitution bench of the
proceedings of the Jharkhand Assembly and the
Supreme Court has acknowledged the power of the
appointment of a temporary speaker and convening of a
legislature to expel their members, that the legislature is
special session in the Assembly; declaring as
supreme in its own sphere, and it is the sole authority to
unconstitutional the dissolution of the Bihar Assembly by
deal with and regulate its internal proceedings and other
the Governor thereby diluting the status of the
affairs.
constitutional functionary in Buta Singh’s case; creating a
central empowered committee (CEC) and giving it powers The Madras High Court has passed the following order
like that of judicial body; judicial legislation in Vishakha’s in the course of dealing with a PIL case which assailed an
case regarding the prevention of sexual harassment of executive order regarding the free distribution of colour
women in the workplace; the creation of a high-powered television sets to eligible families in Tamil Nadu State.
Committee to monitor parking charges; the wearing of
“The scheme is with the proven object of uplift of the poor,
helmets; parking space; one-way traffic; black film or
needy and under privileged to render social justice, to make
vehicle windows; removal of billboards; the usurping of the
them aware of the worldly happenings. A free hand should be
functions of the TN Public Service Commission by the
given to the Government in spending public money for such
High Court in the matter of recruitment of District Judges;
purposes. Courts cannot poke their nose into each and every
interference in the educational policies of the Government
activity of the Government, particularly in the economic
in examples such as the TMA Pai Foudation case and the
activities of the Government, under the garb of judicial review
Islamic Academy case, to cite a few.
(The Hindu, June 26, 2007).”
Even the recent Gujarat fake encounter case, in which
the court has decided to monitor the investigation and take LACK OF ACCOUNTABILITY
over the role of the investigating agency while not The adoption of such an all powerful attitude by the
entrusting the case to the CBI, is a case of over-stepping judiciary does not augur well for a healthy democracy. This
the constitutional thin line which is the mythological is underscored by the fact that judiciary as an institution is
lakshman rekha. not accountable to the people in the same way as the
legislature and the executive. The actions of the executive
JUDICIAL RESTRAINT: NEED OF THE HOUR are subject to judicial review when there is social,
The Supreme Court has on various occasions highlighted economic or political injustice – or departure from the
the importance of judicial restraint for the maintenance of provisions of law and the constitution. When the
the delicate balance of power of the different limbs in a legislature makes laws beyond constitutional bounds or 27
Amicus Curiae Issue 72 Winter 2007
 acts arbitrarily contrary to its basic structure, the highest The governance of our Republic, in the totality of
court examines and corrects. When the judiciary is guilty administration, is vested in the trinity of executive,
of excesses, only a larger Bench or a constitutional legislature, and the judiciary. In a democratic Republic like
amendment can intervene. Even today, the only mode of India the constitution is supreme, and the rule of law
removal of judges as prescribed in the constitution is requires that every organ of the state, adhere to
impeachment, which is too Herculean a task to be easily constitutional policy.
undertaken. This lack of accountability requires the
judiciary to watch its step and exercise self-restraint. Not WHAT IS THE SOLUTION?
long ago, a judicial statesman (the late Chief Justice Ismail
A former Solicitor General of India, Mr Dipankar
Mohamed of South Africa) said:
P Gupta, wrote (Hindustan Times, June 15, 2007):
“The independence of judiciary and the legitimacy of its claim
“There is a real danger that the activism of the courts may
to credibility and esteem must in the last instance rest on the
aggravate the activism of the authorities. Today, inconvenient
integrity and the judicial temper of the judges, the intellectual
decisions are left by the executive for the courts to take.
and emotional equipment they bring to bear upon the process
Extensive use of judicial powers in the administrative filed may
of adjudication, the personal qualities of character they
well, in the long-run, blunt the judicial powers themselves.
project, and the parameters they seek to identify on the
This is not a healthy situation.
exercise of judicial power. Judicial power is potentially no
more immune from vulnerability to abuse than legislative or “What then is the solution? The task of the court should be
executive power but the difference is this: the abuse of to compel the authorities to act and to pass appropriate
legislative or executive power can be policed by an independent executive orders rather than substitute judicial orders for
judiciary but there is no effective constitutional mechanism to administrative ones. They must be told how their duties are
police the abuse of judicial power. It is therefore crucial for to be properly discharged and then commanded to do so. For
all judges to remain vigilantly alive to the truth that the this, they must be held accountable to the court.”
potentially awesome breath of judicial POWER is matched by
the real depth of judicial RESPONSIBILITY. Judicial The Supreme Court recently noted in Indian Drugs &
responsibility becomes all the more onerous upon judges Pharmaceuticals Ltd v Workmen (2007) 1 SCC 408 that:
constitutionally protected in a state of jurisprudential solitude “the Supreme Court cannot arrogate to itself the powers of the
where there is no constitutional referee to review their own executive or legislature… There is a broad separation of
wrongs.” powers under the Constitution of India, and the judiciary,
too, must know its limits”
ABUSE OF POWER OF CONTEMPT • This article is taken from a lecture given at the Institute
The use of the power of contempt by the higher courts of Advanced Legal Studies on July 4, 2007.
has often been uncalled for and unregulated. There are
more instances of abuse of the contempt power than its
use. Veteran journalist Kuldip Nayar states that “the R Shunmugasundaram
unpalatable truth is that the judiciary, for some years, has Senior Advocate, Member of Parliament (Rajyasabha)
been struck with its own image of authority and truth.”

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Amicus Curiae Issue 72 Winter 2007