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In a country like India more than eighty percent of people are economically backward and they are subjected to discrimination as a rule. In such an explosive situation there is an adverse effect on society, when the executive and legislature are apathetic and fail to discharge their constitutional duties. The Judiciary playing the role an activist coming to the rescue , intervenes whenever there is violation of the fundamental freedom of the citizens . In a huge democratic country like India, it is not the legislative wisdom which guards the democracy rather it is wisdom of the Apex Court of the country


Keywords: Democracy, Constitution, Judiciary, Executive, Legislature



A judge while interpreting a statute performs the most creative and thrilling task, giving meaning to the intention of the legislature. A judge not only counterbalances his role to individual cases but also has to invent new methods to tackle the recurring fact scenarios    unanticipated by the law. This creative process undertaken by the judge according to Mr Justice Holmes is known as interstitial legislation.


The Supreme Court of India is respected both by the elite and illiterate alike. If the Court has become increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it. The Supreme Court has no army at its disposal nor does it holds any wealth. It derives its strength from the respect it has in the hearts and minds of the masses and the way it influences and shapes the public opinion. As said by distinguished French author Alexis de Toquevulle, public opinion is the source of the power of the judges.


Hamilton called the court system the weakest organ of government because it had control over neither the sword nor the purse. A court becomes strong only when it identifies itself with the disadvantaged minorities and they see the court as an independent institution, a bulwark against oppression and tyranny.  A court derives its strength by the position it holds in the minds of the people as their saviour. It must not only be, but also must appear to be impartial, principled, and capable of achieving results.


A common criticism we hear about judiciary is that in the name of interpreting the provisions of the Constitution and legislative enactments, the judiciary often rewrites them without explicitly stating so and in this process; some of the personal opinions of the judges metamorphose into legal principles and constitutional values. One aspect of this line of criticism is that the judiciary by becoming an activist has overthrown the doctrine of separation of powers and has undermined the authority of the legislature and the executive by encroaching upon the spheres reserved for them. Critics openly assert that the Constitution provides for checks and balances in order to pre-empt concentration of power by any branch not confided in it by the Constitution. The primary role of a judge is to adjudicate disputes. Being an interpreter of law and entrusted with the delivery of justice as per the Rule of Law, the role of a Judge should not be diminished because of perceived notions of the other two wings of the State - the legislature and the executive or any section of the public. But this cannot be termed judicial activism. Laws enacted by the legislature must be implemented by the executive and their interpretation is within the domain of the judiciary.  This is the primary reason why judiciary is considered less harmful rather treated as weakest of the three pillars of the democracy with no control either on the sword or the purse. Innovative interpretation of the judiciary due to judicial activism may bring both good or harm for the democracy. Judgements declared by courts receive approval of the people adhering to principle of Rule of Law. It’s often criticized that the judiciary does not have the mandate of the majority so it should not play a prescriptive role encroaching the domain of the elected law making body. Even if such role receives public acceptance only because its sustainable with mandate of the Constitution and safeguards the ideals which basic document seeks to achieve. Constitutional interpretation is fundamentally different from the interpretation of other statutory legislations.. The Constitution being the basic document incorporates the enduring values the nation cherished inevitably contains open ended provisions which afford wider scope for the judiciary in the matter of interpretation. "We must never forget", observed Chief Justice Marshall, "that it is a Constitution we are expounding ... intended to endure for ages to come and consequently to be adapted to the various crises of human affairs." In line with this thought was the view of Justice Cardozo, another great Judge, who said a Constitution states or ought to state not rules for the passing hour but principles for a better future. The role played by the judge while interpreting the law has been described thus, judges must be sometimes bold and sometimes cautious respecting both the traditional past and the convenient present. Judges must reconcile liberty and authority; the whole and its parts." Where the public opinion asserts itself against the decisions of the judiciary, the question immediately surfaces as to the legitimacy of the judiciary since it lacks popular mandate. That is the reason why judiciary was cautioned by eminent legal philosophers to exercise great restraint while declaring the actions of the legislature unconstitutional.


There must be no reasonable doubt only then judicial veto may be exercised. Distinguished judges like Frankfurter, Brandeis, Holmes always advocated the theory of reasonable doubt firmly believing that what appears unconstitutional to one person may appear reasonable to another and that the Constitution unfolds a wide range of choices and the legislature therefore should not be presumed to be bound by any particular choice and whatever choice is rational, the court must uphold as constitutional. No legislature can with reasonable certainty foresee the future contingencies and necessarily every enacted law, on a closer scrutiny, will reveal several gaps which the judiciary is expected to fill. This is popularly called judicial legislation. Justice Oliver Wendell Holmes, while admitting this self-evident truth observed in Southern Pacific Co. v. Jensen[1]"... I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions."Often times, private notions of judges take the shape of legal principles.


In a clear contrast to this is the case A.D.M. v. Shivakant Shukla[2] where the majority of the judges expressed bright hope in the executive fairness in matters with respect to  personal liberty but later regretted  for the wrong decision made by them. This is neither judicial control nor judicial boldness.  But perhaps it is a rare example of judicial diffidence. The controversy is still simmering.


There is a fundamental difference between the conventional litigation which was basically adversarial  in which two parties are up against each other in confrontation where the role of a the judge is perceived to be passive, where as  modern litigation demands in the constitutional parlance   judiciary to more active .  Whenever the courts are approached by parties for asserting their rights they also expect that the courts should also lay down norms as a precedent for future cases. The prescriptive role played by the judiciary is of great relevance. No one can justify by assertion that under guise of judicial activism the constitutional courts of India have undermined the doctrine of separation of powers by encroaching the areas reserved legislature and executive. In the backdrop of this criticism the Apex Court has made important observations in Asif Hameed v. State of J&K[3] by saying though the separation of powers doctrine has not been recognised absolutely but framers of the constitution have carefully defined functions of the various pillars of the democracy i.e. legislature, executive and judiciary who are required to within domains provided within the constitutional framework. No one organ   should usurp the function assigned to another organ. Though the judiciary has no control over sword or the purse nonetheless it has the power to make sure that the other two organs of the state operate within the limits of the constitution. It is the sentinel of democracy. The judiciary through   judicial review has a powerful weapon to check unconstitutional exercise of power by the executive and the legislature. The concept of socioeconomic justice has been taken under expanding horizon of judicial review. It’s a true fact that while adjudicating matters of  public law  the economic and social realities are taken into consideration by the judiciary when it decides a wide range of constitutional rights. Highlighting this aspect , the apex court in recent decision speaking through K. Ramaswamy, J., in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee[4]  made very pertinent observation


 "In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and reality. Therefore, the judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law."


The constitutional values enshrined in the constitution are to be interpreted taking into consideration the variable social and economic conditions which are by nature transitory

Reconciling the permanent with transitory is a very delicate task which constitutional Courts have undertaken. Implementing sincerely the laws passed by the Legislature is the primary duty the executive. When this obligation is not discharged properly, then it is the constitutional duty of the judiciary to  compel the executive to discharge its lawful function. This is one of the main criticisms the   Indian judiciary   has faced in the recent times. Abuse of power have   been committed by men who are highly placed and attempts are made to conceal them by making government machinery ineffective due to which recourse to judiciary becomes inevitable


The judiciary is under obligation to taking cognizance of the lapses committed by the executive   and give directions prescribing the way in which the executive should act as per constitutional framework and the laws in force. If the judiciary becomes indifferent then it would be failing in its duty, entrusted on it by the constitution. Now, the most important question here is to whom the Indian judiciary answerable. The answer to this question lies in the constitution. Article 124(4) and 217 (1)(b) provides that a Supreme Court judge or High Court judge is subject to impeachment on proven grounds of misbehavior and  incapacity. During the impeachment process the parliament performs a judicial function where the members in the house have to decide whether the judge in question is guilty or not . Now it is highly debatably whether this judicial function performed by the political parties in instructing their members to cast votes in a particular way. Here reliance can placed on the case of Justice V. Ramaswamy, where his impeachment process came to an end unsuccessfully


Judicial creativity even when it takes the form of judicial activism should not dilute the permanent values embodied in the Constitution with the transitional and changing requirements of the society in a way that will  affect the constitutional integrity. The structure of the constitutional institutions in India would be destroyed if any attempt is made in this regard. The activist role played by the judiciary should be done consciously taking into account that laws must be made and the country must be governed as per the supreme document i.e. Constitution. The judiciary should not propound any constitutional value that would run counter to any explicitly mentioned constitutional rights and obligations. The Judiciary for the cause of doing justice and justifying itself under institutional self righteousness cannot disturb the delicate equilibrium between three organs of the state.



In recent times it has been witnessed that   this new age jurisprudence has contributed  greatly for the well being of the society. And now people have a firm belief that if any one acts in any way or manner contravening the ideals or principles enshrined in the constitution the judiciary is always there to make things right. However judicial activism should not enter into the realms, constitutionally earmarked for the executive and legislature .That would spell disaster. Judges cannot be legislators - they have neither the mandate of the people nor the practical wisdom to gauge the needs of different sections of society.  The judges are forbidden from assuming the role of  an administrator  because pragmatically judges cannot  run government machinery. If a judge supports any populist views then it will undermine their authority and will lead to institutional imbalance.Lord Denning has observed that   numerous of the Judges of England have said that they don't make law. They only interpret it. This is a vision which they've fostered. But it's a notion which is now being discarded far and wide. Every new decision- on every new situation- is a development of the law. Law doesn't stand still. It moves continually. Once this is recognised, also the task of the Judge is put on a higher plane.. He must purposely seek to mould the law so as to serve the requirements of the time. He mustn't be a bare handyperson, a bare working mason, laying slipup on slipup, without study to the overall design. He must be an mastermind- thinking of the structure as a whole, erecting for society a system of law which is strong, durable and just. It's on his work that civilised society itself depends.


It is argued that the evidence of judicial overreach is now too overwhelming to be ignored. He has concluded that the line between genuine judicial intervention and judicial overreach is often tricky because courts while giving judgements are doing certain things as because they can  and not because it is right or it is being  legal or just. One may question the wisdom of employing the judicial power to achieve a desirable social or economic end in the absence of an explicit constitutional mandate to do so. John Gava in his commentary titled “The Rise of the Hero Judge”[5] has cautioned the use of judicial activism. He fears that the worst result of activism is that the judges may end up losing the public’s faith in their most important attribute – the perception that they are impartial referees deciding according to the rule of law.

Public Interest litigation and judicial activism will continue occupy the attention making the courts respond in the manner in which they are doing currently if the Executive and legislature continue to fail to respond to the needs of the citizens and discharge their responsibilities.



[1] Southern Pacific Co. v. Jensen [1917] 244 U.S. 205

[2]  A.D.M. v. Shivakant Shukla  [ 1976] AIR SC 1207

[3] Asif Hameed v. State of J & K, [1989] AIR SC 1899

[4] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee  [1995] SCC (5) 457, JT [1995] (6) 339

[5] John Gava, ‘The Rise of the Hero Judge’ (2001) 24 Univ. N. S. W. law j,747


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