7 Judicial Activism And Judicial Restraint

Mr Niraj Kumar

1.INTRODUCTION

‘When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate will enact tyrannical laws and will execute them in tyrannical manner. Again, there is no liberty, if the judicial powers is not separated from the legislative and the executive powers. Where it is joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Where it is joined with the executive power, the judge might behave in violent and oppressive manner. Miserable indeed would be the case, where the same man or the same body, whether of the nobles or of the people, to exercise those powers, that of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals’.

These famous words of Montesquieu propounded the doctrine of ‘Separation of Powers’ in 1748, and even today this doctrine is the very foundation of any successful democracy. According to this theory, all three powers and functions of the Government, i.e., legislative, executive, and judicial, must always be kept separate and be exercised by three separate organs of the Government. In recent times, this doctrine is very much in debate for being violated by the judiciary in the name of judicial activism. Judicial activism is basically a deviation from this principle. According to Justice Katju , ‘ Judicial activism on the theory of Jurisprudence called Sociological Jurisprudence, arms the judiciary with wide legislative and executive powers.

Learning outcome:

• Knowledge of the concept of judicial activism and judicial restraint,
• Identification of various facets of judicial activism and judicial restraint,
• Understanding of the reasons behind judicial activism and judicial restraint, and Appreciating the approach of Judiciary in the area of judicial activism and judicial restraint.

2. ORIGIN AND MEANING OF JUDICIAL ACTIVISM

The term ‘judicial activist’ was first used by Arthur Schlesinger in an article published in Fortune in 1947. Schlesinger targeted Justices Douglas and Black as being especially activist. But he offered no clear definition.3 Further, this term was used for the first time in any judicial opinion by Judge Joseph C Hutcheson in 1959 in the matter of Theriot v Mercer.

According to Black’s Law Dictionary, ‘judicial activism is a philosophy of decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions’.5 Further, Justice JS Verma said that ‘judicial activism must necessarily mean the active process of implementation of the rule of law, essential for the preservation of a functional democracy’. According to Justice William Rehnquist ‘judicial activism means judicial legislation. Judicial activism is when judges cross the line that separates judging from legislating – as when the Supreme Court invents constitutional rights out of thin air, despite the fact that the right in question is not even hinted at in the text of the Constitution, and was totally unknown at the time that the Constitution [or, in the case of Roe, the 14th Amendment] was enacted’. 6 Thus, in simple words judicial activism means creative and innovative interpretation of law.

The problem with such active role of the judiciary is that it challenges and contradicts the established Anglo-Saxon tradition. The Anglo-Saxon tradition provides that a judge does not make law; he merely interprets. Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. But in practice, it is not possible to put the judges in water- tight compartment and expect from them to uphold the rule of law by merely interpreting the law as per the words of the legislature. Lord Denning, therefore, has correctly said that, ‘Judge cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of the injustice’.

There is no doubt that a judge has to interpret the law according to the words used by the legislature. But as pointed by Justice Holmes, ‘a word is not a crystal, transparent and unchanging’. It is a skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. It is for the judge to give meaning to what the legislature has said and it is this process of interpretation of which constitutes the most creative and trilling function of a judge’.

2.1 Position in United States

The American Supreme Court has started its active role when it asserted power to review the law passed by Congress in Marbury v Madison,9 Chief Justice Marshall said:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to a particular cases, must of necessity expound and interpret that law. If two laws conflict with each other, the Courts must decide on the operation of each. This is of very essence of judicial duty.

After this judgement, the power of the judiciary expanded massively but slowly. Fifty-four years later in Dred Scott v Standford,10 Chief Justice Roger Taney said that even free black to be non-citizen and held that Congress was powerless to restrict slavery in federal territories. This case was a classic case of judicial activism. The court created a right to hold property in slaves that the Constitution, nowhere mentioned or could reasonably be read as implying. The next development in judicial activism in United States was noticed in Brown v Board of Education,11 where it was held that segregation on the ground of race was unconstitutional and void. In Griswold v Connecticut,12 the court struck down a state law against contraceptive in the name of an unwritten law “right to marital privacy”. In famous case of Roe v Wade, the court legalised abortion, which started a cultural war in United States. The judicial activism has played a very important role when American Government adopted the policy of affirmative action to improve the socio-economic conditions of disadvantaged minority groups [black people]. In H. Earl Fullilove v Philip M Klutzniok,13 a provision in the Public Work Employment Act 1977 requiring States to procure services or supplies from businesses was upheld and the court said that it was a necessary step to effectuate the constitutional mandate for equality of economic opportunity. But the approach of court has not been consistent in this regard. For example, in Regent of the University of California v Allen Bakke,14 Bakke was a white student, who failed to secure admission to the University of California Medical School, and she challenged a provision by which 16% of the seats were reserved in favour of disadvantaged member of certain minority races as violative of the equality clause. The Court although accepted the principle that race-conscious admission programmes for the purpose of remedying the effects of past, discrimination were legally permissible, sustained the challenge and granted declaratory relief. It appears from above that the court undertook the task of micro-management of policy of affirmative action. The examples of the judicial activism of Supreme Court of United States are numerous and it will be beyond the present engagement to mention all of them. This activism of Supreme Court of United States has not only influenced the life of the American people but it inspired the judiciary of other countries to provide justice. And Indian judiciary was not an exception.

2.2 Indian Position

The activism of the Supreme Court of India during the1950s and the1960s was confined to a few cases on right to property. On personal liberty, the Court was extremely positivist. Soon after the Constitution came into force in1950 in AK Gopalan’s case,15 the Supreme Court gave a narrow and restrictive interpretation of article 21 of the Constitution. It was held that – ‘the procedure established by law means procedure established by a law made by the State’ and the court refused to infuse in that procedure the principles of natural justice. Twenty eight years after this judgement, in 1978 the Supreme Court in Maneka Gandhi’s case16 pronounced that the procedure contemplated by article 21 must be ‘right, just and fair’ and not arbitrary; it must pass the test of reasonableness and the procedure should be in conformity with the principles of natural justice and unless it was so, it would be no procedure at all and requirement of article 21 would not be satisfied. The most significant aspect of this case was that the Court laid down a seminal principle of constitutional interpretation. There cannot be a mere textual construction of the words of the Constitution. Those words are pregnant with meaning that unfolds when situations arise.17 For example, the Constitution mentions the right to freedom of speech and expression but does not mention the right to freedom of the press. The Supreme Court has, however, held that the right to freedom of speech includes the right to freedom of the press18 and the right to receive information.

Since India is a developing country, one third of its population is illiterate, poor and ignorant about their rights. It is impossible for them to assert their rights in the court of law. Therefore, to give true meaning of the fundamental rights of these people, the Supreme Court in Madhav Haskot’s case,20 held that providing free legal service to thepoor and needy is an essential element of the ‘reasonable, fair and just procedure’. Again, in Hussainara Khatoon v State of Bihar,21 while considering the plight of the under trials in jails, speedy trial was held to be an integral and essential part of the ‘right to life and liberty’ contained in article 21 of the Constitution of India. This case is marked as first case of judicial activism in the history of Indian Supreme Court, because here the court granted relief not on the petition of the aggrieved person but on the petition of a third person. This is the first case where traditional rule of locus standi is relaxed without recognising it in express words.

The traditional rule of locus standi was that only aggrieved person, whose right has been violated can approach the court for the redressal. This rule was relaxed in S P Gupta v President of India,22 where Justice Bhagwati said that:

It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him.

The liberalization of the rule of locus standi came out of the following considerations:

[1]  to enable the court to reach the poor and the disadvantaged section of society who are denied their rights and entitlements, [2] to enable individuals or groups of people to raise matters of common concern arising from dishonest or inefficient governance, and [3] to increase public participation in the process of constitutional adjudication. This sort of litigation came to be known as Public Interest Litigation [PIL].23[PIL has proved to be a very potent weapon in the hands of the judiciary to protect democratic principle and values. The wide reach of PIL is best demonstrated by reference to some areas in which courts have made particularly significant pronouncements. These are illustrative of the proposition that how court by employing various tools has become more active in comparison to yesteryears and recognized rights which are not so obvious by the plain reading of the Constitution.

2.2.1  Human Rights

The courts have been making intervention in cases concerning violation of human rights. Decisions on such matters as the right to protection against solitary confinement as in Sunil Batra v Delhi Admn24, the right not be held in fetters as in Charles Sobraj v Supdt., Central Jail,25 the right against handcuffing as in TV Vatheeswaran v State of Tamil Nadu,26 the right against custodial violence as in Nilabati Behera v State of Orissa,27 the right of the arrested person as in D K Basu v State of West Bengal,28, or the right of the female employees not to be sexually harassed at the place of work as in the case of Vishaka v State of Rajasthan,29are just few pointers in that direction. In Bandhua Mukti Morcha30 the Supreme Court held that right to life guaranteed by article 21 included the right to live with human dignity, free from exploitation.

2.2.2 Environment Protection

The area in which judicial activism through PIL’s contribution has been significant is environmental law. The Court has dealt with environmental issues such as pollution by tannery industries as in Vellore Citizens Welfare Forum v Union of India,31protection and conservation of forests as in T N Godavarman v Union of India,32 vehicular pollution as in M C Mehta v India,33. protection of Taj Mahal from degradation as in M C Mehta v India34 and the protection of the people from stone quarrying in the Dehradun region as in Rural Litigation and Entitlement Kendra v UP 35 The Court also laid down the principles such as the polluter pays for the pollution36, the burden of proof will lie on the party that wants to change the status37, the person dealing in hazardous industry has absolute liability.38

2.2.3Judicial Legislation by Direction

Article 32 and 226 confer on Supreme Court and High Court respectively the power to issue directions for achieving the objectives of those articles. Some of these directions have legislative effect. For example, the Supreme Court laid down directions as to how children of prostitutes should be educated in Gaurav Jain v India,39 on what should be the fee structure in medical or engineering colleges in TMA Pai Foundation v Karnataka,40 what procedure should be followed and what precautions should be taken while allowing Indian children to be adopted by foreign parents in Laxmikant Pandey v India41 and most importantly, for the effective implementation of gender equality by preventing sexual harassment of working women in Vishaka v Rajasthan.42 Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. The Court, thus, has taken over the legislative function not in the traditional sense but in an overt manner and justified it as being an essential component of its role as a constitutional court. And here the question violation of separation of powers arises.

3 JUDICIAL RESTRAINT

It is true that judicial activism strengthen the democracy and reaffirms the faith of the common man in the rule of law, but it has to be controlled and properly used. Courts have to be careful not to overstep the limits assigned to them by the Constitution. The judges in exercise of their power of judicial review are not expected to decide a dispute or controversy which is purely theoretical or for which there are no judicially manageable standards available with them. The courts should not, generally speaking, interfere with the policy matters of the executives unless the policy is either against the Constitution or some statute or is actuated by mala fides. Policy matters, fiscal or otherwise, is thus best left to the judgement of the executive.43 This is called judicial restraint. This is just opposite of the judicial activism.

In simple words, ‘ judicial restraint’ is a philosophy of judicial decision- making whereby judges avoid indulging in their personal belief about public good and instead try merely to interpret the law as legislated and according to precedent.44 The basic idea behind judicial restraint is that the will of the people is best expressed through legislative bodies, and people should bear the consequences of their political choice. When the government changes, policies are bound to change. And judges should excuse themselves from setting new policies with their decision.

Judicial restraint is important mainly for two reasons, first, only judiciary is empowered to decide the limits of the jurisdiction of the other organs of the government, and therefore, this power should be exercised with utmost humility and self-restraint. Second, the mistake or errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its error.

In United States, Justice Oliver Wendell Homes was strong believer of judicial restraint and strongly criticized his fellow justice for their activist role for striking down legislation and preventing ‘the rule of the majority to embody their opinion in law’. In Blodgrett v Holden,45he said:

Between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty to adopt that will save the Act.

The examples of judicial restraint in United States can be seen in various cases, such as Gibbons v Ogden,46 it was held by Supreme Court that the power to regulate inter-state commerce was granted to Congress by the Commerce Clause of the Constitution. The Congress may pass any law that regulates commerce, so long as that commerce is not wholly confined within a single state, and its power to regulate such commerce is plenary. This interpretation of Commerce Clause gave very wide power to Congress to regulate multiple issues of national importance. Dred Scott’s case is another example, where the court upheld slavery as being protected by the right to property, without considering any right of the slave. However, some scholars consider this case as case of judicial activism, because the court recognised an unwritten right i.e., right to property in slave. These two extreme interpretations of the same judgment in Dred Scott highlight a very important aspect of the bipolar debate of judicial activism and judicial restraint i.e. the understanding have a great subjectivity. Again in Plessy v Ferguson,47 the Court applied great amount of restraint by holding that ‘separate but equal’ public facilities for blacks met the requirement of the Fourteen Amendment. Therefore, the State can segregate facilities on basis of the colour of a person’s skin.

In recent times, Chief Justice John Roberts is considered as firm believer of judicial restraint. In National Federation of Independent Business v Sebellins,48 popularly known as Obama Care case, although he allowed health insurance but he rejected the wide interpretation of Commerce Clause by Obama administration. The Court held that the individual mandate was constitutional as Congress had the power to assess a tax against those who did not purchase insurance. The Congress’s attempt to require purchase of health insurance under Commerce and Necessary and Proper Clause was unconstitutional as Congress did not have the authority to compel an act of commerce, only to regulate activities in commerce.

In India, judiciary initially functioned as positivist, adhering to the principle of judicial restraint. AK Gopalan’s case is the best example, where the court said:

There is considerable authority for the statement that the courts are not at liberty to declare an Act void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument.

There are various other cases where the court has accepted the principle of restraint and its limited role. In Divisional Manager, Aravali Golf Course v Chander Haas,49 the Supreme Court said that ‘judges must know their limits and are not to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each organs of the State must have respect for the others and must not encroach into others domain’. Again, in Government of AP v P Laxmi Devi,50 the Supreme Court observed that ‘invalidating an act of the legislature is a grave step and should never be lightly taken. A court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when this is the only possible view not opens to rational question’.

4 SUMMARY

Thus, in the light of above discussion, it becomes clear that the court must, while exercising the power of judicial review, exercise proper restraint and base their decisions on recognized doctrines or principle of law. In fact, judicial activism and judicial restraint are two sides of the same coin. The relationship between two is best expressed by Aharon Barak in following words:

The Court will show judicial restraint, and will not replace the discretion of the legislators with the discretion of the judge. At the same time, judicial restraint is not equivalent to judicial stagnation. Judicial moderation must not give rise to judicial paralysis. When the legislators violate a human right which [sic] is anchored in the Basic Laws, and the violation exceeds the extent required, there is no other choice than to adopt a clear judicial position. Just as we are not free to repeal a statute, simply because we would not have enacted it, had we been members of the legislative branch, we are also not at liberty to refrain from repealing a statute, merely because the legislators saw fit to enact it. We, the judges, have been assigned the constitutional role of preserving the criteria for the constitutionality of the statute, which [sic] are set forth in the Basic Laws, and preventing any transgression beyond their boundaries.51

The courts are entrusted with the duty of implementing the constitutional safeguards that protect individual’s rights, but they cannot push back, the limits of the Constitution to accommodate the challenged violation. All it means that judges are expected to be self-disciplined in the discharge of their judicial functions. Thus, in the words of Justice Katju, ‘in democracy, the remedy of malfunctioning of legislature and executive must come from the people, not the judiciary’. We must add a caveat here that although malfunctioning must be addressed by people but under the shield of judicial restraint illegality should not be allowed to go unattended by the Court.

Web Resources:

1.K.G.Balakrishanan, ‘Judicial Activism under the Indian Constitution’<www.supremecourtofindia.nic.in>

2.Katju, ‘Separation of Powers, Judicial review and Judicial Activism’<justicekatju.blogspot.in.>

3.< www.prsindia.org >

4.< http://www.sal.org.sg>

5.< http://digitalcommons.law.yale.edu>

6.< www.jstor.org >