Judicial Activism in India

One often wonders!!!

•Is it the courts of India that is doing all the decision making?

•Are the legislative and executive wings of democracy silently passing the baton to the judiciary?

•Are the higher court judges in India playing for mass appeal?

In recent activities, SC has ordered• Control over automobile,air and noise pollutions, • Norms from medical post graduation to nursery admissions,• wearing of helmets and seat belts• Action plans to control and prevent the monkey menace ,• has directed the most complex engineering of interlinking

rivers in India.• orders banning the pasting of black film on automobile

windows,• Asking the CBI to report directly to the court, • In 1993, the Court issued orders on the conduct of military

operations in Hazratbal, Kashmir

BLOOMBERG January 21, 2016

• As India’s politicians bicker, its Supreme court judges are taking the lead in shaping policy.

• Proponents view them as an antidote to India’s gridlock and a check on corrupt politicians, while detractors see a threat to democracy and a risk for investors.

BLOOMBERG contd.

• As prime minister, Modi is limited to setting policies that are then implemented by federal departments and India’s states.

• To pass laws, his party must get them through both houses of parliament, where 776 elected members represent all of India’s 1.3 billion people.

• India’s 26 Supreme Court judges can review any law passed by parliament, initiate legal proceedings and give multiple directives in cases, that can stay open for decades

History of Judicial Activism

• Arthur Schlesinger, Jr.---1947.• Fortune Magazine article entitled “The Supreme Court:”• Schlesinger grouped the courts into three

categories:• (1) judicial activists,• (2) champions of self-restraint, and• (3) a middle group.

Judicial Activism-Definition • Black’s Law Dictionary- judicial activism is a

“philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

• Judicial activism can also be defined as when a Court takes some legislative power away from legislators.

• To define broadly, is the assumption of an active role on the part of the judiciary

Arms of democracy

• A simple working definition is that judicial activism occurs when judges fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference.

THEORIES OF CONCEPT OF JUDICIAL ACTIVISM

THEORY OF VACUUM FILLING • the vacuum is created by the

inactivity, incompetence, negligence or corruption among the legislature and the executive. the judiciary is left with no other alternative but to expand its horizons and fill up.

THEORY OF SOCIAL WANT • When the existing legislations failed

to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them.

-----~ Montesquieu

• There is no liberty where judicial power is not separated from both legislative and executive power.

• If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator.

• If it were not separated from executive power, the judge would have the strength of an oppressor.

Earl Warren as Chief Justice of US

Brown v. Board of Education(1954)• The suit called for the school district to reverse its policy of

racial segregation• The District Court upheld a state law requiring "separate but

equal" segregated facilities for blacks and whites.• Supreme court with Earl Warren as Chief justice – Key holding

was, “even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and unconstitutional.”

• When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."

History of Judicial Activism in India

• A conservative executive and a progressive judiciary, or a progressive Parliament and a conservative judiciary coexisting at the same point of time, form the basis of judicial activism or judicial overreach.

The Supreme Court is at once, the arbiter of federal principle, the guardian of fundamental rights of the citizens, final interpreter of the constitutional and other organic laws and the final judge to determine the validity of even a constitutional amendment

Therefore in India, the judiciary mainly the Supreme Court and High Court‘s have a greater scope to be active while discharging various judicial functions

Jawaharlal Nehru, at the inauguration of the Supreme Court of India on 28th January, 1950

• “No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament representing the will of the entire community.”

• No Court, no system of judiciary can function in the nature of Third House, as a kind of Third House of correction.

• So it is important that with this limitation the judiciary should function

Dr. Ambedkar

• “I do not see how five or six gentlemen sitting in the Federal of Supreme Court examining laws made by the Legislature and by the dint of their own individual conscience or their bias or their prejudice be trusted to determine which law is good and which law is bad.”

The scope of judicial review before Indian courts

Firstly, to ensure fairness in administrative action

Secondly to protect the constitutionally

guaranteed fundamental rights of citizens

Thirdly to rule on questions of legislative

competence between the centre and the states

Judicial restraint (popularly known as judicial conservatism.)

• Refers to a belief that judges should limit the use of their power to strike down laws, or to declare them unfair or unconstitutional, unless there is a clear conflict with the Constitution.

• This concept relies heavily on the uniform adherence to case law, which encompasses decisions rendered by other judges on prior, similar cases.

History of Judicial Activism in India

• “garibi hatao”- abolishing Privy Purse, and nationalizing the 14 major banks

• A conservative judiciary struck down the relevant legislation as unconstitutional

• Considered by Mrs. Gandhi to be judicial overreach

The reaction was at once strong and unequivocal.

• Senior judges in the above cases were passed over for appointment to the post of Chief Justice of India.

• The dissenting judge, Mr A N Ray, fourth in the line of seniority, was appointed as CJI

• Resulted in the resignation of the three senior judges (Justices Hegde, Shelat and Grover).

• This marked the starting point of the theory of judicial activism that actually resulted from the stand-off between the executive and the judiciary.

Keshavananda Bharti v/s Govt.of Kerala(1973)

• For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure.

• This was a gigantic innovative judicial leap unknown to any legal system.

• The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous.

• Two years before the proclamation of emergency, the Apex Court declared that the executive has no right to fiddle with the constitution and alter its fundamental characteristics.

• But it could not deflect the emergency declared by Mrs.Gandhi.

• It was only at the end of it that the Supreme Court and the Lower courts began to ceaselessly intervene in executive as well as legislative areas

• The two most prominent figures whose names are the most inter related with judicial activism are (Mid-1970S to early 1980s—birth of PILs)

• Just. P. N Bhagwati Just. V.R.Krishna Iyer

Origin of the Public Interest Litigations

This included• Modifying the traditional requirements of

locus standi, • liberalizing the procedure to file writ petitions, • Creating or expanding fundamental rights,• Overcoming evidentiary problems,• Evolving innovative remedies.

Public Interest Litigation

When there is a question of public interest then a writ petition may be filed by someone even though he may not be directly involved in that matter.

Thus, the expression Public Interest Litigation means a legal action initiated in a court of law for enforcement of public interest.

locus standi (Latin for ‘place

to stand’)Means the ability of a party to demonstrate to the court sufficient

connection to and harm from the law or action challenged to support that party's participation in the

case

Exceptions to locus standi (Courts have now acknowledged )

• where there has been violation of constitutional or legal rights of persons who, by reason of their socially or economically disadvantaged position, are unable to approach the court for judicial redress, a member of the public could move the court for enforcement of such rights of such persons.

• Courts have begun to recognize that they exist not merely to vindicate individual rights but also to vindicate public rights and therefore permit members of the public to agitate such rights.

Any public spirited citizen can move/approach the court for the public cause by filing a petition

In the Supreme Court under Article 32 of the

Constitution of India;

In the High Court under Article 226 of the Indian

Constitution

In the Court of Magistrate under Section 133 of the

Code of Criminal procedure

• “Judges have neither the power of sword nor of purse. Yet Judges have now become roaming knights–errant on white chargers tilting at windmills of injustice to defend the honour of the Dame of Justice.”--Hamilton

THE THREE PHASES OF PIL

First phase —1970s 1980s—

the PIL cases were generally filed by

public-spirited persons (lawyers, journalists,

social activists or academics).

Most of the cases related to the rights of

disadvantaged sections of society

Second Phase- 1990s Filing of PIL cases became

more institutionalized ; several specialized NGOs and lawyers started bringing PIL to the courts on a much regular

basis.The breadth of issues which

were raised in PIL also expanded

Third Phase- 21st century—Anyone could file a PIL for

almost anything. Changes in judicial attitude at

the cost of the sympathetic gesture

The response of the judiciary became much bolder and

unconventional.

“Suo Moto cognizance”"take notice of the fact on its own "

• This practice of initiating proceedings on the basis of letters or reports has been streamlined and has come to be described as ‘epistolary jurisdiction’

• It is a special power of High Courts and the Supreme court of India to initiate a hearing by itself without anybody filing any appeal or writ petition or PIL.

• When court feels that a matter requires serious and immediate legal intervention, it acts

“Suo Motu”.

Judicial Activism and PIL:

• Equating PIL with judicial activism is a misconception

• It is equated with PIL mainly because it is the most convenient vehicle for bringing public grievances before courts and because the courts orders in PILs are far-reaching and some times sensational.

Public Interest Litigations• Since filed straightaway at the level of the Supreme

Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding.

• To overcome this problem, our Courts have developed the practice of appointing ‘fact-finding commissions’ on a case by case basis.

• In matters involving complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis.

The Indian Supreme Court

• Has evolved from a positive Court into an activist Court over the last Sixty five years and more

• This transformation in the role of the Court has synchronized with the political change that came about

• The increased role of the Court was legitimized by the increasing pluralization of the Indian polity, the need to have a counter-majoritarian check on democracy, and relative erosion of the high profile of the political leadership

Protector of the constitution?

• Substantive contents of a constitution at a particular point of time reflect the will of its framers.

• It is not necessary that the intent of the framers corresponds to the will of the majority of the population at any given time.

• This power of amendment by the legislature is not unlimited

• Idea of ‘judicial review’ designates the higher judiciary as the protector of the constitution.

• Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws.

Reasons which compel a court or a judge to be

active • Near Collapse of responsible government.• Pressure on judiciary to step in aid.• Judicial enthusiasm to participate in social reform

and change.• Legislative vacuum left open.• The constitutional Authority to make final

declaration as to validity of a law.• Role of Judiciary as guardian of fundamental rights.• Public confidence in the judiciary.

Measurement of activism • I.Reaction of the Legislature: If the legislature, ndertakes

measures to overturn the decision, then the decision is regarded to possess a higher degree of activism

• II.Administrative or Executive Response: The greater the compliance by executive, the less is the degree of activism

• III.Reaction by the Judiciary: The greater the affirmation of the decision in subsequent cases, the less is the extent of activism.

• IV.Vox Populi: A high level of disapproval by civil society will signify a high activist quotient

Dwivedi J.

• ‘‘The court is not chosen by the people and is not responsible to them in the sense in which the House of People is.”

• However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.

Milestones of Public Interest Litigation in India

Article 21 and Judicial Activism(PERSONAL LIBERTY)

Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law

• In A.K. Gopalan v. State of Madras(1950), the Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just..

• Maneka Gandhi v. Union of India(1977): A Watershed in Indian Judicial Activism:

Hussainara Khatoon v. State of Bihar

• A series of articles published in the Indian Express which exposed the plight of under trial prisoners in the state of Bihar

• Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with.

• The Supreme Court accepted the locus standi of the advocate to maintain the writ petition, Gave directions through which

the‘right to speedy trial’ was highlighted

In Parmanand Katara v. Union of India,

• The Court held that no medical authority could refuse to provide immediate medical attention to a patient in need in an emergency case;

• The public interest litigation had arisen because many hospitals were refusing to admit patients in medico-legal cases.

• Hence, the Supreme Court ruled that access to healthcare, is a justifiable right.

Journalist, Mrs. Sheela Barse

Journalist, Mrs. Sheela Barse

• Took up the plight of women prisoners who were confined in the police jails in the city of Bombay.

• The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay.

• Court issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official.

Sunil Batra v. Delhi Administration,• Public interest litigation acquired a new dimension – namely

that of ‘epistolary jurisdiction’• It was initiated by a letter that was written by a prisoner

lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warden on another prisoner.

• The Court treated that letter as a writ petition, while issuing various directions, opined that:

“…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found”.

S.P.Gupta v. Union of India,

• The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation.

• In this particular case, it was accepted that they had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary.

Aruna Shanbaug Vs. Union of India

• Aruna Shanbaug, a nurse in 1973, while working at a Hospital at Mumbai, was sexually assaulted and has been in a permanent vegetative state since the assault.

• In 2011, after she had been in this status for 37 years, the Supreme Court of India heard the petition to the plea for euthanasia filed by a social activist.

• The Court turned down the petition, but in its landmark judgment it allowed passive euthanasia i.e. withdrawal of life support to a person in permanently vegetative state, subject to approval by the High Court.

M C Mehta-tireless campaigner,His petitions have resulted in

• Strict liability for the leak of Oleum gas from a factory in New Delhi,

• Directions to check pollution in and around the Ganges river,

• Relocation of hazardous industries from the municipal limits of Delhi,

• Directions to state agencies to check pollution in the vicinity of the Taj Mahal.

• A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi.

• The Supreme Court decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG),

• This was followed some time later by another order that required privately-run ‘autorickshaws’ to shift to the use of CNG.

Vishaka v. State of Rajasthan.

• The petition in that case originated from the gang-rape of a grassroots social worker.

• In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces.

Sun Film Verdict- Irrational exuberance

Sun film case

• The Supreme Court in April 2012 had prohibited the use of tinted glass or sun films on the windshields and windows that restricted the vision beyond permissible limit fixed under the Motor Vehicles Act 1989.

• The Supreme Court passed the order after tinted vehicles were used by criminals to escape after committing crimes such as sexual assaults, robberies, and abductions.

• Now, traffic police have come out with a vengeance in enforcing this archaic rule-? to make a quick buck on the side. .

• Would anyone advocate transparency in bedroom windows because crimes happen therein?

• The ubiquitous nature of the law could be a case of ‘monkey see, monkey do’.

• This might be a good enough time to revisit the law. Who would bell the cat?

Legislature infringement Article 212 of the Constitution states that Courts are not

to inquire into any proceedings of the legislature

• In the Jharkhand Legislative Assembly case(1998), the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business.

judgment of the Patna High Court Jan Chaukidar v Union of India(2004) — upheld

by the Supreme Court• All those in lawful police or judicial custody,

other than those held in preventive detention, will forfeit their right to stand for election.

• Since Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those in such custody are not qualified for membership of legislative bodies.

Arunchal Pradesh verdict: SC quashes Governor order, restores sacked CM july-2016

• Censuring the Governor for “humiliating the elected government of the day”,

• The Supreme Court restored the Congress government in Arunachal Pradesh,

• Declared as “unconstitutional” all decisions of Governor Jyoti Prasad Rajkhowa that had first led to imposition of President’s rule in the state and later formation of a new government led by the Congress breakaway faction.

National anthem

• Supreme Court ruled that all cinema halls shall play the national anthem before a film starts and that all present should stand up!

• The order appears “per incuriam” (an order that is passed in disregard of a binding authority),”

• Is the acid test of patriotism and nationalism only that we stand up (when national anthem is played)?

• What about handicapped persons who cannot stand up but still have abundant patriotism at heart?

Contradictory verdict

• In the Emmanuel case, the SC ordered a school in Kerala to take back three children it had expelled for not singing the national anthem.

• The children didn’t sing the anthem because of their conviction that their religion did not permit them to join any rituals except in their prayers to Jehovah.

• The court had ruled that there is no legal provision that obliges anyone to sing the anthem.

Supreme Court: Indian Temples Can't Stop Women From Entering

• The Shani Shingnapur case - Mumbai High Court, with the plaintiffs alleging restriction was in

violation of the fundamental rights of women. The Temple Trust in Ahmednagar was ordered to open its inner sanctum to women following a court order from the High Court.

• Sabarimala case is not only trickier, but the court could also find it hard to dodge the central constitutional questions.

‘Jellikettu’ case –SC Sidelined

SC Bench strikes down NJAC Act as ‘unconstitutional and void’

After receiving Presidential assent on Dec. 31, 2014, the collegium system of appointing judges to the SC and high courts was replaced by a new body called the National Judicial Appointments Commission.

The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” It held that the collegium system, as it existed before the NJAC, would again become “operative.”

It is a flawed judgment ignoring the unanimous will of the Parliament, half the State Legislatures and the will of the people for transparency in judicial appointments: Attorney General Mukul Rohatgi

NJAC was completely supported by Rajya Sabha and Lok Sabha; it had 100 per cent support of the people: Law Minister D.V. Sadananda Gowda

• Good sign that the SC has called for further discussions on Collegium system. It shows that it has accepted there are defects in the system: Senior Advocate Gopal Subramanium

This is the tyranny of the unelected over the elected: KTS Tulsi

The Supreme Court took away, the constitutionally bestowed power to the president of India to appoint judges.

This shows the working of judicial activism in the territory as nowhere in the world has the

power to select and appoint judges conferred on the judges

themselves.

No Liquor Shops On State, National Highways From April 1, Supreme Court Orders

• under the Constitution, the power to grant liquor licenses rests with the states

(under List II of Seventh schedule)

• Directions to the state governments not to grant licenses for alcohol shops appear to encroach directly upon the legislative function, and therefore – prima facie – fall outside the “jurisdiction” of the Court.

Harman Singh Sidhu, the man behind the PIL that resulted in the recent Supreme Court judgement banning liquor sales on all state and national highways

• The issue is whether the Court is acting within its jurisdiction by taking over the function of the state legislatures to regulate liquor licenses, and on that question, the judgment remains silent

• There was no fundamental right under Article 19(1)(g) to trade in alcohol: while the right to trade in alcohol might not be a fundamental right, surely the right to consume alcohol – as an aspect of personal choice – is a fundamental right (Article 21).

Sidhu so dismayed?

• After all, it was him who demanded the ban. Surely, he must have known what he was getting into?

• Sidhu says this was collateral damage — he never wanted to see establishments being shut, and he does not support prohibition either. All he wanted was to stop people from drinking and driving.

• “There are hundreds of hotels located on the Mumbai-Goa Highway or in any other highway.

• These hotels proliferated due to the incentives offered by the state government to promote tourism.

• If these hotels are closed down, then lakhs and lakhs of people will be rendered jobless

Supreme Court explains why its highway liquor shop verdict is not judicial overreach

• It was the Centre’s idea• The expert body agreed• The Centre continued to push its idea• Parliament indicated zero tolerance for

drunken driving

• Judicial policymaking?

Polycentric Problems(Lon Fuller)

• Liquor ban is a problem like a spider web with a complex set of interdependant relationships.

• Judiciary is ill suited to resolve such issues.• It is a classic case of judicial policy making and

has overeached the executive without any resources for implementing it without overpulling the web strands in some direction or other nor the expertise to handle such a situation

Problems of PIL

Misuse and overuse Political benefit:

Personal Gain: Symbolic justice:

Easy access to justice

Disturbing the constitutional balance

of power

Overuse of PIL

• Misuse of PIL in India, has reached to such a stage where it has started undermining the very purpose for which PIL was introduced

• PIL is now being used for frivolous issues also. • ‘‘The overuse of PIL might dilute the original

commitment to use this remedy only for enforcing human rights of the victimized and the disadvantaged groups.

• In other words, the dark side is slowly moving to overshadow the bright side of the PIL project.

Symbolic justice• judiciary is often unable to ensure that its

guidelines or directions in PIL cases are complied with, for instance, regarding sexual harassment at workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case)

Bandh or Hartal

• In 1997, the Kerala High Court in a landmark judgment declared bandhs unconstitutional and illegal, a view that the Supreme Court upheld

• But the High Court has now said that it cannot similarly ban hartals as a way of protest in the absence of an enabling law

• After the Kerala High Court banned bandh, it resurfaced in the present form of hartal, which is nothing but a bandh in disguise. Be it bandh or hartal, it means total paralysis of normal life and industrial activities.

Easy access to justice –a licence to file frivolous petitions

• It is the solemn duty of the Court to protect the society from the so called protectors of the society.

• The Court should try to ascertain the bona fides of the petitioner and find out whether he is really a public spirited person or he has approached the Court to settle his ulterior score through the legal process

• No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes.

Objections to the doctrine of ‘judicial review’

Judiciary being an unelected body is not accountable to the people through any institutional mechanism.

Allowing the judiciary to rule on the validity of the enactments passed by a popularly elected legislature amounts to a violation of the idea of ‘separation of powers’

Judges using their personal discretion to grant remedies in areas in which they have no expertise

“Public cause litigation”.• Over the years, however, the

unexceptional social action dimension of the PIL has been diluted, converted, and eclipsed by another type of “public cause litigation”.

• In this type of legal process, the court’s intervention is not sought for enforcing the rights of the disadvantaged but to simply correct the actions or omissions of public officials, government departments or other public bodies

•India has now become accustomed to seeing the Supreme Court correcting government action in trifling matters which should not be its concern.

Disturbing the constitutional balance of power

• Although the Indian Constitution does not follow any strict separation of powers, it still embodies the doctrine of checks and balances, which even the judiciary should respect.

• However, the judiciary on several occasions did not exercise self-restraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies.

Today, inconvenient decisions are left by the

executive for the courts to take. Extensive use of judicial powers in the

administrative field may well, in the long-run, blunt

the judicial powers themselves

There is a real danger that the activism of

the courts may aggravate the activism of the

authorities.

•The task of the court should be to compel the authorities to act and to pass appropriate executive orders rather than substitute judicial orders for administrative ones.

Justice Markandey Katju(observed in Mattoo Priyadarshini’s case)

• “Under the Constitution, the legislature, the executive and the judiciary have their own broad spheres of operation.

• It is, important that these three organs of the state do not encroach upon the domain of another and confine themselves to their own

• The judiciary must exercise self-restraint and eschew the temptation to act as a super legislature

Inefficient use of limited judicial resources:

• The number of per capita judges in India is much lower than many other countries

• Indian Supreme Court as well as High Courts is facing a huge backlog of cases,

• It is puzzling why the courts have not done enough to stop non-genuine PIL cases.

• By allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial .

Judicial populism

Judges are human beings, they can admit PIL cases on account of raising an issue that is (or might become) popular in the society.

Conversely, the desire to become people’s judges in a democracy should not hinder admitting PIL cases which involve an important public interest but are potentially unpopular

Judiciary, recently it has been grabbing too much public attention.

JUDICIAL OVERREACH (the point at which Judicial Activism‘ losses its legitimacy)

Any further judicial exercise of power beyond that point would tantamount to Judicial Overreach‘

Judicial Restraint Judicial Activism Judicial Overreach

Judicial overreach(? judicial tyranny )

• High handedness of the exercise of judicial power in the domains not constitutionally earmarked for the judiciary.

• Lord Acton – “All power corrupts and absolute power corrupts absolutely.”

• Creating a law and then enforcing it by wrong and unconstitutional exercise of its power is clearly unwarranted under the constitutional scheme.

• Running the nation is something not expected out of the judiciary?

there is a need to identify the thin line dividing judicial activism and judicial overreach,

• Thus, Judges while exercising their power should not forget the essence of separation of powers( Judiciary, executive, legislative) independently enshrined in the constitution and while flexing muscles should maintain the spirit of activism and not over-reach

Man Mohan Singh

Judicial overreach

Development has been delayed between the contrasting judgments and legislations of the judiciary and legislature respectively

Reasons for judicial overreach

since all power grows by what it feeds on, judicial power also tends to grow by accretion

indifference or ineptitude of Constitutional bodies. Judicial overreach’ then is the direct result of legislative as well as executive neglect or inaction:

Poor and dilatory performance, not only in the making of laws, but also in their implementation

Judiciary- least transparent and least accountable institution in India

• “judicial activism can be a medicine not a daily bread “

• “A judge may be one who would like to sing the song of liberty and glorify the same abandoning passivity, but his solemn pledge has to remain embedded to Constitution and the laws”- a judgment by the Bench of Justices ~Dipak Misra and S.K. Singh

Immunity and protection for judges

Lack of Accountability and Transparency

Appointment of judges is done behind close doors in a collegium system

• Removal of judges require cumbersome procedure

The Power of Contempt of Court has stifled even an honest evaluation and criticism of Judiciary

• After the 1991 SC judgement , no criminal investigations can be initiated against a judge of superior courts without the permission of the CJI

Protection to the judges of the superior courts

• Errant judges who have become insensitive not only to their duties and responsibilities but also to public opinion, doggedly clinging on to their posts and offices even when faced with impeachment motion.

• Nowhere in the world has the power to select and appoint judges conferred on the judges themselves.

CUMBERSOME IMPEACHMENT PROCEEDINGS:

• either 100 members of the Lower House or 50 members of the Upper House have to submit a signed complaint that is then investigated by a three member committee comprising two Judges and a Jurist; if approved, the mater is debated in both houses and must be completed within a single session or else the whole process must begin again in a subsequent session.

• Since independence, only three Judges have even faced impeachment, all three for mis-appropriating, public funds or accumulating dis appropriate wealth of those three, in one case the impeachment motion failed and in the other two , the Judges resigned before the motion could go through

Corruption in Judiciary

Corruption in courtsA 2007 survey

• 59% of respondents paid bribes to lawyers,5% to judges,30% to court officials for speedy and favorable judgments.

• Higher court judges are selected from the ranks of lower court judges and lawyers, there is always a possibility of corrupt judges making it to higher courts

• Once judges have been appointed to higher courts, they can use their expansive ”contempt of court” powers to suppress allegations of corruption

Former Judge of Sup. Court Justice Markandey Katju

• 50% of the Higher Judiciary consisting of Supreme Court and High Court Judges are corrupt.

• Indian Democracy is in danger; when 867 Judges, who have never learned to obey the law are given THE RIGHT TO COMMAND.

• To make India corruption free: Prosecute and jail corrupt 867 Judges:

• levelling corruption charges against 20 sitting and retired judges of the SC and HC

Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins

• Blind eye- to the injudicious conduct of a colleague• Hypocrisy – the complete distortion of the norm of judicial independence• Secrecy – the fact that no aspect of judicial conduct including the

appointment of judges to the High and Supreme Court is transparent• Plagiarism and prolixity – meaning that very often SC judges lift whole

passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language

• Self Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures

• Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle

• Nepotism – wherein favors are sought and dispensed by some judges for gratification of varying manner

• Former law minister Shanti Bhushan created a sensation in the Supreme Court when he moved an application accusing eight former Chief Justices of India of "corruption", and dared the court to send him to jail for committing "contempt of court".

• Bhushan put their names in a sealed cover and submitted it to the Supreme Court and virtually dared it to open it and read out the contents.

• "It is a common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power to contempt.

Reasons for lack of judicial accountability

The misuse and abuse of the power to punish persons committing contempt of court

Varied activities and diversion of attention of Judges to non-judicial functions/activities

Non-existence of an effective disciplinary mechanism to identify and take action against the errant Judges

Pranab Mukherjee,President

• He acknowledged that “for the enforcement of fundamental rights, the Supreme Court, through judicial innovation and activism, has expanded the common law principle of ‘locus standi’”.

• He also said however that, “Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others…Judicial activism should not lead to the dilution of separation of powers, which is a constitutional scheme”.

Arun Jaitely-Fin. Minister

• Went further and said that “step by step, brick by brick, the edifice of India’s legislature is being destroyed”.

• whether the courts, and especially the Supreme Court, wouldn’t serve the country better by processing outstanding cases instead of pandering to the whims of a veteran campaigner with an unnecessary order that will be hard to implement and could cause social problems.

Surya Deva- associate professor at City University of Hong

Kong’s law school

• India’s Supreme Court arguably "the most powerful court in the world." Judges can make laws, monitor implementation and resolve disputes, he said.

• "There is too much concentration of power in judiciary because they are trying to do everything together. “.

• A Pew Research Center poll last year showed that more people had confidence in the national government than the courts, a reversal from 2014.

‘Unique’ Power

• "This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction,”

• Every Supreme Court decision poses a threat to some companies and opportunities for others, They can create uncertainty in the investment climate if rulings are made abruptly without detailed explanations and reasonable timeframes for implementation.

Need for activismCheck majority passion!!!

• There should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.

• Others have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.

objections against judicial activism

• Executive agencies are unfairly burdened by the costs associated with these positive obligations.

• This criticism mirrors the familiar philosophy of ‘judicial restraint’ when it comes to constitutional adjudication.

• Expansion of justiciability to include rights that are difficult to enforce takes away the credibility of the judiciary in the long-run.

When a judge puts

• Policy considerations above the requirements of law,

• Bends the text of the Constitution or laws to comport with his or her own sensibilities,

• Angles for particular results in a case, that judge has stepped outside the proper

constitutional role of policing the structural limits on government and neutrally interpreting the laws and the Constitution.

• It may be concluded that although there are several drawbacks to judicial activism, the benefits can’t be ignored.

• Judicial activism is a necessary evil which has many side effects but still it is necessary for the people who may not be able to knock the doors of the court and justice continues to be distant moon for them.

Conclusion

• When Judges start thinking they can solve all the problems in society and start performing legislative and executive functions ,all kinds of problems are bound to arise.

• Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor resources to solve major problems in society.

Conclusion

When Judges start thinking they can solve all the problems in society and

start performing legislative and executive functions ,all kinds of

problems are bound to arise.

Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor

resources to solve major problems in society.