judicial activism and its impact on the administration of justice in india

302 Pages·2012·3.61 MB·English

JUDICIAL ACTIVISM AND ITS IMPACT ON THE
ADMINISTRATION OF JUSTICE IN INDIA (WITH
REFERENCE TO SEPARATION OF POWER)

THESIS

SUBMITTED FOR THE AWARD OF THE DEGREE OF
DOCTOR OF PHILOSOPHY
IN
LAW

BY
RACHNA SINGH
(ENROLMENT NO.: GC-7237)

UNDER THE SUPERVISION OF
Prof. (Dr.) IQBAL ALI KHAN
CHAIRMAN & FORMER DEAN

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY
ALIGARH-202002 (INDIA)

2016
JUDICIAL ACTIVISM AND ITS IMPACT ON THE
ADMINISTRATION OF JUSTICE IN INDIA (WITH
REFERENCE TO SEPARATION OF POWER)

ABSTRACT

SUBMITTED FOR THE AWARD OF THE DEGREE OF
DOCTOR OF PHILOSOPHY
IN
LAW

BY
RACHNA SINGH
(ENROLMENT NO.: GC-7237)

UNDER THE SUPERVISION OF
Prof. (Dr.) IQBAL ALI KHAN
CHAIRMAN & FORMER DEAN

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY
ALIGARH-202002 (INDIA)

2016
DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY
ALIGARH, INDIA

Prof. (Dr.) Iqbal Ali Khan Date…………..
Chairman & Former Dean

CERTIFICATE

It gives me immense pleasure to certify that Ms Rachna Singh, Research
Scholar bearing Admission No. : Ph.D.-L-574-09 and Enrolment No.:
GC-7237 has completed this Thesis entitled, “JUDICIAL ACTIVISM AND
ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA
(WITH REFERENCE TO SEPARATION OF POWER)” for the award of
the Ph.D. Degree, under my supervision.
The present work is an original contribution in the field of Constitutional Law.

Prof. (Dr.) Iqbal Ali Khan
ACKNOWLEDGEMENTS

I bow in reverence to the Almighty God whose benign benediction gave me the
required zeal for the completion of this work.
Prof. (Dr.) Iqbal Ali Khan, Chairman & Former Dean, Department of Law, my
supervisor, is one of those rare teachers who are paragons of knowledge and a source
of strength & inspiration to their students. I would like to express my sincere
gratitude, reverence and utmost regards for his illuminating, scholarly guidance and
creative supervision of this work. He has been a real source of strength, inspiration
and confidence to me.
I would not miss this opportunity of thanking Prof. (Dr.) Javed Talib, Dean, Faculty
of Law, Prof. (Dr.) Saleem Akhtar, Prof. (Dr.) Mohammad Shabbir, Dr. Wasim Ali,
Dr. Zaheeruddin, Dr. Badar Ahmad, Dr. Zubair A. Khan, Dr. Shakeel Samdani,
Dr. Shakeel Ahmed, and Dr. Mohd. Ashraf, for their guidance.
My sincere thanks are also due to Dr. Tabassum, Ms. Kusumavati, Ms. Talat Anjum,
Ms. Deepti Sharma for their unremitting help, guidance and support.
The unfathomable blessings, good wishes, prayer and love of my parents are the
spiritual strength with which I have pursued this work. My beloved father Late Mr.
Harmahendra Singh and my mother Mrs. Lalita Singh provided me the much needed
support and encouragement at every step of my career; their contribution is
immeasurable. Whatever I am today, is the fruit of their sincere efforts.
I am also indebted to my husband, Mr. Gajendra Joshi and my brothers, Mr. Gagan
Singh and Mr. Pawan Singh whose everlasting love and affection has provided me
with enough mental and moral strength to accomplish this task successfully. My
vocabulary fails to express the gratitude towards them for their co-operation, help,
inspiration, valuable suggestions and constructive criticism from time to time.
I am also thankful to my cherished friends, classmates and critics for all their help and
continued encouragement.
iv
I am also thankful to Dr. Zafar Khan, Mr. Shareef, Mr. Zaheer, Mr. Azeem,
Mr. Yasin, Mr. Israr, Mr. Mohammad, Mr. Ahmad, Mr. Israr-un-Nabi, Mr. Roshan
Khayal, and Mr. Iqbal and the entire faculty staff for their assistance and help
rendered to me.
My acknowledgement would be incomplete if I fail to express my thanks to Mr. Dilip
Chakraborty for helping me type my thesis.
Lastly, I am grateful to all those who helped me directly or indirectly in completing
this thesis.

(Rachna Singh)

v
Dedicated to my beloved
father
late Shri Harmahendra Singh
and my lovely mother
Smt. Lalita Singh
for their unconditional love,
constant support and
encouragement throughout
my life…….
Abstract

ABSTRACT

The expression 'Judicial Activism' signifies the anxiety of courts to find out
appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting
questions in the event of lawlessness or uncertain laws. The above statement can be
explained in a simplified manner as- under the Constitution of India, the three
branches of the government, namely the Legislative, Executive and the Judiciary,
have been assigned their own separate roles. It is when the Judiciary steps into the
shoes of the Executive or the Legislature and embarks on the work of law-making
rather than interpreting laws, it can be deemed to be judicial activism.
Black’s Law Dictionary explains very well:
“Judicial activism is judicial philosophy which motivates judges to depart from strict
adherence to judicial precedent in favor of progressive and new social policies which
are not always consistent with the restraint expected of the appellate judges. It is
commonly marked by decisions calling for social engineering and occasionally these
decisions represent intrusions in the legislative and executive matters.”
The Constitution, by its very existence, was a social revolutionary statement. It was to
be a modernizing force. Social revolution and democracy were to be the strands of the
seamless web most closely related. The Constitution was to foster the achievement of
many goals. The members of the Constituent Assembly brought to the framing of the
judicial provisions of the Constitution an idealism equaled only by that shown
towards the Fundamental Rights. Indeed, the Judiciary was seen as an extension of the
Rights, for it was the courts that would give the Rights force. The Judiciary was to be
an arm of the social revolution. But unfortunately, the Constitution of India has often
been made a topic of conflict by its three organs.
In 1977 the Janata party came to power with overwhelming support, defeating the
Congress almost to extinction. The Janata party dismantled the constitutional
amendments brought into law by the Congress party.
The year 1980 brought Mrs. Gandhi back to power. Her victory at the polls was
decisive, with a large majority in the Parliament. The Supreme Court had always been
uncomfortable with Mrs. Gandhi’s governance; during the late sixties her economic
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Abstract

and political policies were struck down in the Bank Nationalization and Privy Purse
cases; in the early seventies the Court was locked in the Kesavananda battle and again
in her election cases; when the Court supported her emergency in the Shukla case it
was execrated by public opinion.
During 1985 there was a new government at the Centre, a new Chief Justice in the
Supreme Court, and a new perception of the Indian economy. With surplus wheat in
the granaries and a promise to eradicate corruption, the country was relaxed, and
optimistic. A fresh youthful breeze blew across India in what was akin to an Indian
version of the Kennedy era in America.
During the period 1987-99 India saw twelve Chief Justices. K.N. Singh J was the
Chief Justice for the shortest period of eighteen days, Pathak J and Ahmadi J for the
longest, of a little over two years each. During the same period there were eight Prime
Ministers. There was instability in the governance of the country. Political parties lost
their credibility and capacity to rule. Bureaucracy became a powerful and significant
lever of power. Corruption became rampant. The people suffered acutely as a
consequence of the nexus between politicians and bureaucrats on the one hand and
criminals on the other.
The second part of the last decade witnessed a new significant phenomenon,
momentous in its dimensions and disturbing in its impact, i.e. the persistent, continual
exposure of sordid events in both the print and electronic media.
During recent years it has become fashionable among some citizens to disparage the
founders and their document. These individuals, disappointed by developments in the
country since 1950, have called for changing the Constitution, explaining that it has
not ‘worked.’ Such thinking is misguided. Constitutions do not ‘work,’ they are inert,
dependent upon being ‘worked’ by citizens and elected and appointed leaders.

1.1 CHOICE OF THE TOPIC
‘The seat of Justice is the seat of God’, Mahavir Tyagi has famously told the
constituent assembly but how far it is true, in the current scenario, is the need of
examination.
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Abstract

There have been many loopholes and lacuna in our legal system. In the name of
judicial activism, modern day Judges in India have abandoned the traditional role of a
neutral referee and have increasingly resorted to tipping the scales of justice in the
name of "distributive justice". The legitimacy of such actions needs critical
appraisement at the hands of the legal fraternity, even at the risk of unpopularity by
swimming against the tide. Undoubtedly, the Indian judiciary has played an important
role in the development of the nation and probably that is the major reason for
people’s faith in it. Thus, the ongoing debate on judicial activism has made it the topic
of this research.
As India takes its place on the international stage, it is only natural that legal systems
of the world over will turn their attention to its highest court and want to draw on the
development of constitutional jurisprudence by the Supreme Court of India over the
last sixty years. That trend has already begun.
The above facts have prompted the researcher to undertake the study of “Judicial
activism and its impact on the administration of justice in India with reference to
separation of power”.

1.2 OBJECTIVE OF THE STUDY
In this study, it is proposed to examine the various facets of judicial activism. An
attempt shall be made to analyze that how has judicial activism developed and how
far has it succeeded in correcting the wrongs. The objectives of this study can be:
1) To find out whether the role of a judge is merely to declare law as it exists or to
make law;
2) To compare the Judicial Behavior of the Indian Judiciary before and after 1980;
3) To evaluate the factors responsible for the origin of Judicial activism in India, its
evolution and reasons for its growth, in the light of the decisions given by the
Supreme Court in the post-1980 era;
4) To discuss and analyze the concepts of Judicial Power, Judicial Review, Judicial
Activism and Separation of powers in general with particular reference to India;
5) To ascertain the problems and perils of judicial activism;
6) To examine the factors that have given rise to Public Interest litigations in India;
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Abstract

7) To discuss the role played by judicial activism in the administration of justice in
India;
8) To suggest ways and means to ensure and uphold the spirit of constitutionalism
etc.

1.3 RELEVANCE OF THE STUDY
Judiciary may not be democratic as initiator, but it becomes so by democratic
approval through acceptance of judicial pronouncements by the people at large. Black
finds merit in a judiciary provided with the power of judicial review. To quote him:
“Now surely it ought to be clear that no democratic principle whatever is infringed, if
the people choose, as a matter of prudence, to give the power of constitutional
decision to a Court composed of men trained in the requisite professional discipline,
and isolated from immediate responsiveness to changing popular views.”
In the light of above discussion, the present study has attempted to harmonize the
various facets of judicial activism and the following issues can be listed which in turn
are vital and retain higher relevance for a smooth functioning of the Constitutional
machinery.
1) Is it the function of a judge merely to declare law or, taking in consideration the
hopes of masses, can they make law?
2) Whether judicial activism is a positive or a negative concept?
3) Has the judiciary really succeeded in curtailing the arbitrary powers of the other
two state organs?
4) Has judicial activism acquired social legitimacy?
5) Whether it is constitutionally justified for the judiciary to encroach in the
domain of legislature and executive to check any anomaly that arises as a result
of the mal-functioning?

1.4 SIGNIFICANCE OF THE STUDY
The power of judicial review has three important implications - nullification,
credibility and creativity. Since the power of judicial review results in the nullification
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