This article is written by Dibyadarshini Nanda. Dibyadarshini is currently pursuing LLM from Utkal University, Odisha.

The concept of judicial activism has been criticised from its very beginning. The third President of USA, Thomas Jefferson referred it as the “despotic behaviour” of Federalist federal judges, in particular, of former Chief Justice John Marshall.[1] Some label it “judicial terrorism”, while it is called by others, the unchallenged authority acquired by the higher judiciary.[2]

The major criticism of Judicial Activism is that it is unconstitutional as the authority of legislative and executive is usurped by the judiciary which is not elected by the people.[3] In most countries, judges are appointed through methods involving selection or nomination, in which ordinary citizens do not have a say. It is argued that 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’.[4]

However, we must consider that the founding fathers of our Constitution placed enormous powers in the hands of the Judiciary[5]. Supreme Court is the guardian of Fundamental Rights of Indian citizens. According to Dr B.R. Ambedkar, the provision for judicial review constituted the heart and soul of the constitution.[6] There are many articles in the constitution, Article 32, 141, 142 and the likes, which show the vision of constitution makers about judiciary playing a predominant role in upholding the rule of law.

The question of judiciary usurping the authority of legislative and executive is aptly answered by C.N Irani as, “When the executive refused to apply law and willfully constantly and conspicuously refused to do their duty, it falls to the judiciary to act in defense of the constitution and the mandate of the rule of law and equality before law.”[7]

Further, it is quite clear from people approaching Court on issues of governance, that they have relatively greater regard for the Courts compared to other organs of government.[8]

Countering the arguments in regards of ‘separation of power’, as Alladi Krishnaswami Ayyer’s had remarked, “while Supreme Court’s function may be one of interpreting the Constitution, it cannot in the discharge of its duties afford to ignore the social, economic and work tendencies of the time, which furnish the necessary background.”[9]

The judicial view that “judges don’t make law, they declare it” is flawed. As said by Justice P.N. Bhagwati, “this theory has been evolved in order to insulate judges against vulnerability to public criticism. It also helps judges to escape accountability for what they decide. They can plead helplessness by saying that it is a law made by the legislature and they have no choice but to give effect to it.”[10] It cannot be denied that every doctrine of common law is developed by a judge at some point of time. Lord Reid, English judge put it “We do not believe in fairy tales anymore, so we must accept the fact that for better or worse judges do make law.”[11]

Judiciary is known as the temple of justice among the Indian citizens. The cost of litigation being quite high, an Indian litigant, moves to court when all other options have failed him. In this scenario, if the court would deny him relief, exercising restraint, then it would be a grave miscarriage of justice.

In a developing country like India, where the parliament is adjourned most of the time due to political reasons, the executive branch fails to implement the laws and police and other authorities often misuse their power, the active action by the judiciary is very much needed, though some amount of judicial restraint should be exercised from time to time to prevent vexatious and frivolous cases.

[1] ‘Judicial Activism’ (Wikipedia) <http://en.wikipedia.org/wiki/Judicial_activism&gt; accessed 18 May 2013

[2] ‘IPA, Judicial Activism, Phenomenon, Fallout of Political Class’s Failure’ National Herald (New Delhi, 18 January, 2005 )

[3] Arjun.M, ‘Judicial Activism in India- An Overview’ (Solutions to Change, 12 December, 2012) <http://cppr.blogspot.in/2012/12/judicial-activism-in-india-overview.html&gt; accessed 19 May 2013

[4] Justice K.G. Balakrishnan, ‘Judicial Activism under the Indian Constitution’(Trinity College Dublin, Ireland, 14 October, 2009)

[5] Justice R.C. Lahoti, ‘Judicial Activism’- Constitutional Obligation of the Court’ (B.M. Patnaik Memorial lecture, Cuttack, 22 January 2005) cited at 2005(1) CJD 1, p.5

[6] Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol.7

[7] C.N Irani, ‘Cry the beloved Country’, The Statesman (New Delhi, 9 August, 1997)

[8] S.P Sathe, Judicial Activism in India (1^st Edn, Oxford University Press 2002)

[9] Alladi Krishnaswami Ayyer, Constituent Assembly Debates, Vol.7

[10] Justice P.N. Bhagwati, ‘Judicial Activism in India’ (1986) Volume 17, Issue 1 Gargoyle Alumni Magazine, University of Wisconsin Law School, Wisconsin, USA  <http://law.wisc.edu/alumni/gargoyle/archive/17_1/gargoyle_17_1_3.pdf>  accessed 20 May, 2013.

[11] Lord Reid, “The Judge as Lawmaker”