Judicial Activism in Post-Emergency Era

Judicial Activism

in

Post-Emergency Era

Dr. Deka Swapna Manindranath

Notion Press

5 Muthu Kalathy Street, Triplicane,

Chennai - 600 005

First Published by Notion Press 2015

Copyright © Dr. Deka Swapna Manindranath 2015

All Rights Reserved.

ISBN: 978-93-84391-44-7

This book has been published in good faith that the work of the author is original. All efforts have been taken to make the material error-free. However, the author and the publisher disclaim the responsibility.

No part of this book may be used, reproduced in any manner whatsoever without written permission from the author, except in the case of brief quotations embodied in critical articles and reviews.

Dedicated to

The memory of my beloved parents, Mrs. Rani Deka and

Dr. Manindranath Deka who devoted their entire life to give me happiness and make my life comfortable and enhancing

my academic excellence.

To my dear husband Dr. R. Chandra Brahma and

adorable daughter Nikita for their constant support

and sacrifice in making this book a reality.

Preface

Judicial activism has been observed under different constitutions of the world. A debate has triggered among jurists about the necessity or unnecessary of such phenomenon. India is no exception. Judicial activism has also been observed under the scheme of the Indian Constitution and it has also raised a debate. The main issues are whether judicial activism is judicial overreach or there is a myth about judicial overreach. What are the areas of such judicial activism or judicial overreach? If it is judicial activism, what is the need of judicial activism under the scheme of the Indian Constitution? If it is judicial overreach, what should be the limits for curbing an overreach?

The above issues are the theme of the present book which was officially registered as a research topic under the title ‘Constitution of India and Judicial Activism in Post– Emergency Era’ for a PhD degree of the Gauhati University. The book has been divided into seven chapters.

The first chapter is an introduction to the phenomenon of Judicial Activism. The second chapter discusses the phenomenon of Judicial Activism under different constitutions through a brief comparative study. The third chapter discusses Judicial Activism in India through historical perspective. The fourth chapter discusses the study of Judicial Activism in India during the post-emergency era. The fifth and the sixth chapters are a continuation of the discussion on Judicial Activism in India during the post–emergency era. The seventh chapter draws conclusion from the whole study.

Acknowledgments

This book grew out of my doctoral thesis in Law at Gauhati University. I am extremely grateful and indebted to my supervisor, Dr. Bhaskar Kumar Chakravarty, B.Sc. (Honours), LL.M., PhD, Professor, Department of Law, Gauhati University, Guwahati for his able guidance, insightful suggestions, tremendous inspiration and unending support and encouragement in course of the execution of my research study inspite of his preoccupation with onerous academic responsibilities and assignments.

I would like to express my deep sense of gratitude to the other faculty members of the Department of Law, Gauhati University for their constant encouragement, kind cooperation and valuable suggestions in the completion of the thesis which ultimately has come out in the form of a book.

I am thankful to the staff of the library of Department of Law, Gauhati University, Guwahati, Faculty of Law, Delhi University (North Campus), Delhi, National Law University, New Delhi, the Indian Law Institute (ILI), New Delhi, the Gauhati High Court Library, Guwahati and the library of Assam Administrative Staff College and Dispur Law College for allowing me to use their libraries for my research study.

I shall fail in my duty, if I do not record my indebtedness and appreciation to my parents, husband, daughter Nikita for their constant inspiration and sacrifice without which the completion of this research and a book would not have been possible.

List of Abbreviations

Table of Cases

A

A.D. M. Jabalpur v. Shivkant Shukla AIR 1976

SC 1207: (1976) 2 SCC 521

A.F. of L v. American Sash and Door Co. (1949) 335 U.S. 538, 555

A.G. for Alberta v. A.G. for Canada (1939) AC 117 (130)

A.G. Ontario v. Reciprocal Insurers (1924) AC 328 (345)

A.K. Gopalan v. State of Madras AIR 1950 SC 27

A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531

A.S. Krishna v. State of Madras AIR 1957 SC 298

Abbot v. City of St. John (1908) 40 SCR 597

Abdul Rehman v. Pinto AIR 1951 Hyd. 11

Adelaide Co v. Jehovah’s Witnesses (1943) 67 CLR (159 – 60)

Ahmedabad Women’s Action Group (AWAG) v. Union of India AIR 1997 SC 3614

Air India v. Nargeesh Meerza AIR 1981 SC 1829

Airlines of N.S.W. v. N.S.W. 113 CLR 54

Ajay Hasia v. Khalid Mujib Sehravardi AIR 1981 SC 487

Akhil Bharatiya Shosit Karmachari Sangh (Railway) v. Union of India AIR 1981 SC 298

Ameerunnissa Begum v. Mahboob Begum AIR 1953 SC 91

Anwar Hussain Chowdhury v. Bangladesh 1989 BLD (SP1) 1

Apparel Export Promotion Council v. A.K. Chopra AIR 1999 SC 625

Arif Hameed v. State of Jammu and Kashmir AIR 1989 SC 1899

Arti Sapru v. State of J & K AIR 1981 SC 1009

Aruna Roy v. Union of India AIR 2002 SC 3176

Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349

Atiabari Tea Co .v. State of Assam AIR 1951 SC 232

Attorney General for Ontario v. Attorney General for Canada (1896) AC 348 (P.C.)

Australian Building Construction Employees Ex – Parte (1974) 48 ALJR 42 (43)

Automobile Transport Ltd., v. State of Rajasthan AIR 1962 SC 1906 23, 90 Azad Rickshaw Pullers Union v. State of Punjab AIR 1981 SC 141

B

B. Sakarama v. Assistant Commissioner Kundapur D.K. AIR 1992 Knt. 364

B.C. Motor Vehicle Act (1985) 2 SCR 486

Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802: (1984) 3 SCC 161

Bashesher Nath v. Income Tax Commissioner AIR 1959 SC 149

Bennet Coleman and Co. v. Union of India AIR 1973 SC 106

Bhan Ran v. Baijnath AIR 1962 SC 1476

Bihar Legal Support Society v. Chief Justice of India (1986) 4 SCC 767

Bonham’s case (1610) 8 Co. Rep. 114 (118)

Brij Bhushan v. State of Delhi AIR 1950 SC 129 

Brown v. Board of Education 347 U.S. 483 (1954) 7, 52, 68,156 Buckley and Others (Sinn Fein) v. Attorney General and Another (1950) Ir R.

Bush v. Gore 121 S Ct 525 (2000)

C

C.B. Muthamma v. Union of India AIR 1979 SC 1868

Calcutta Gas Co. v. State of West Bengal AIR 1962 SC 1044: (1963) 1 SCJ 106

Champakam Dorairajan v. State of Madras AIR 1951 SC 226

C. Jagadeeswar v. State of Andhra Pradesh (1988) Cr L J 549

Chiranjit Lal v. Union of India AIR 1951 SC 42

Common Cause v. Union of India (1996) 1 SCC 753 (Blood Bank cases)

Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42

D

D.C. Mills v. Commissioner of Income Tax, West Bengal AIR 1955 SC 55

D.C. Wadhwa v. State of Bihar AIR 1987 SC 579: (1987) 1 SCC 378 

D.L.F. Universal Ltd., v. Prof A Lakshmi Sagar (1998) SCC 1

D.V. Bakshi v. Union of India (1993) 3 SCC 662; AIR 1993 SC 2374

Death Penalty Case (1948) Hanreishu II 3(191)

Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14

Delhi Laws Act Case AIR 1951 SC 332

Dr. Priti Srivastava v. State of Madhya Pradesh AIR 1999 SC 2894

Dred Scott v. Stanford 60 U.S. 393 (1856)

E

E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555; (1974) 4 SCC 3

Edmonton Journal v. Alberta (Attorney General) [1989] 2 SCR 1326

Edwards v. Attorney General for Canada (1930) AC 124 (PC)

Emperor v. Sadashiv Narayan Bhalerao AIR (34)1947 PC 82

Emperor v. Sibnath Banerjee AIR (32) 1945 PC 156

F

Fairfax v. Commr. Taxation (1965) 114 CLR 1(7)

Fertilizer Corporation Kamgar Union v. Union of India (1981) 2 SCR 52: AIR 1981 SC 344

Francis Coralie v. Mullin v. Administrator Union Territory of Delhi AIR 1978 SC 597

G

Gaurav Jain v. Union of India AIR 1997 SC 3021

General Manager, S Railway v. Rangacharee AIR 1962 SC 36

Gian Kaur v. State of Punjab AIR 1996 SC 1257

Gompers v. United States (1914) 233 U.S. (604/610)

Guifoyle v. Home Office (1981) AER 943 (947) (CA)

H

H. H. Maharajadhiraj Madhav Rao Jivaji Rao Scindia Bahadur & others v. Union of India AIR 1971 SC 530

Hill v. East & West India Dock Co. (1884) 9 AC 488 (495) (HL)

His Holiness Swami Kesavananda Bharati Sripadagalvaru v. State of Kerala 1973 SC 1461

Huddart Parker v. Moosehead (1908) 8 CLR 330

Hussainara Khatoon v. Secretary, State of Bihar (1980) 1 SCC 81: AIR 1979 SC 1360

I

I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861

Ichikawa v. Japan (1961) 15 Keishu 7 (1106)

Indian Council for Enviro–Legal Action v. Union of India (1996) 3 SCC 212

Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299

Indra Sawhney v. Union of India AIR 1993 SC 477

Islamic Academy of Education v. State of Karnataka AIR 2003 SC 3724

J

Jagjit Singh v. State AIR 1954 Hyd. 28

James v. Commonwealth of Australia 1936 AC 578 (614)

Janata Dal v. H.S. Chowdhari (1992) 4 SCC 305

Jatish Chandra Ghosh (Dr.) v. Hari Sadhan Mukherjee AIR 1961 SC 613

Jiwan Mal Kochar v. Union of India (1984) 1 SCC 200

Joginder Kumar v. State of U.P. (1994) 4 SCC 260

Judges v. A.G. (1937) 53 TLR 464 (PC)

K

K. Veeraswami v. Union of India (1991) 3 SCC 655

K.C. Ganapati Narayan Dev v. State of Orissa, AIR 1953 SC 375

K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495

K.C.G. Narayan Dev v. State of Orissa AIR 1953 SC 375

Keshavan Madhava Menon v. State of Bombay AIR 1951 SC 128

Kharak Singh v. State of U.P. AIR 1963 SC 1295

Kihota Hollohan v. Zachilhu and others (1992) 1 SCC 309

Kovas v. Cooper, (1949) 336 U.S. 77, 95

Krishna Swami v. Union of India (1992) 4 SCC 605

L

L. Chandra Kumar v. Union of India AIR 1997 SC 1125

L.C. Golak Nath v. State of Punjab AIR 1967 SC 1643

Lakshmi Kant Pandey v. Union of India (1984) (I) SCC 244

Lakshmi Kant Pandey v. Union of India (1987) (I1) SCC 667

Lee v Bude & Torrington Rly Co. (1871) LR 6 CP 577 (582)

Leleigh Valley Coal Co. v. Ulensavage 281 Fed 517(522)

Lila Dhar v. State of Rajasthan AIR 1981 SC 1777

Lily Thomas etc. v. Union of India and others AIR 2000 SC 1650

Liversidge v. Anderson (1942) AC 206

Lochner v. New York (1905) 198 U.S. 45

M

M. Nagraj v. Union of India AIR 2007 SC 71

M.C. Mehta v. State of Tamil Nadu AIR 1997 SC 699: (1996) 6 SCC 756

M.C. Mehta v. Union of India AIR 1987 SC 1086: (1987) 4 SCC 463

M.C. Mehta v. Union of India AIR 1991 SC 417 (Vehicular pollution cases)

M.C. Mehta v. Union of India (1998) 8 SCC 711: AIR 1998 SC 186 (Toll Tax of Taj Case)

M.C. Mehta v. Union of India AIR 1997 SC 735 (Pollution of Taj Mahal)

M.C. Mehta v. Union of India AIR 1998 SC 2340: (1998) 6 SCC 60, 63

M.R. Balaji v. State of Mysore AIR 1963 SC 649

M.S.M. Sharma v. Sri Krishna Sinha AIR 1959 SC 395

M/s Western electronics v. State of Maharashtra AIR 1989 SC 621

Makhan Singh Tarsikka v. State of Punjab AIR 1964 SC 381

Maneka Gandhi v. Union of India AIR 1978 SC 597

Marbury v. Madison (1803) 1 Cr 137

Mc Culloh v. Maryland (1819) 4 Wheat 316

Mc Gee v. A.G. (1974) IR 284

Mc Grath and Harte (1941) Ir. R. 68

Melbourne Corporation v. Commonwealth (1947) 74 CLR 31

Mian Muhammad Nawaz Sharif v. President of Pakistan and others (1993) PLD SC 473

Minerva Mills v. Union of India AIR 1980 SC 1789

Mohammad Ahmed Khan v. Shah Bano Begum

AIR 1995 SC 1531; (1995) 3 SCC 635

Mohanlal Sharma v. State of U.P. (1989) 2 SCC 609

Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731

Mohini Jain v. State of Karnataka (1992) 3 SCC 666

Motiram v. North Eastern Frontier Railway AIR 1964 SC 600

Mumbai Kamgar Sabha v. Abdulbhai AIR 1976 SC 1455: (1976) 3 SCC 832

Municipal Council, Ratlam v.Vardhichand AIR 1980 SC 1626: (1980) 4 SCC 162

Munn v. Illinois (1876) 94 U.S. 113 (142); 24 Law Ed. 77

Munna v. State of U.P (1982) 1 SCC 545 167

N

N.L.R.B. v. Jones (1937) 301 U.S. 1

Nageshwar v. A.P.S.R.T. Corporation AIR 1959 SC 316

Nakamura v. Japan (1962)

National Union of Railwaymen and others v. Sullivan and others [1947] Ir R. 77

Neera Mathur v. Life Insurance Corporation AIR 1992 SC 392

New York Times v. United States 403 U.S. 713 (1971)

Nicaragua v. USA I.C.J. (1986) Rep. 14

Niharendu Dutt Majumdar v. Emperor 29 AIR 1942 FC 22

Noel v. A.G. (1982) Cr L Rev 679 (PC)

P

P. Rathinam v. Union of India (1994) 3 SCC 394

P.A. Inamdar v. State of Maharashtra AIR 2005 SC 3236

P.K. Mantiyam v. Regional Provident Commissioner, Allahabad, (1983) Gujarat Law Reporter

P.V. Narasimha Rao v. State (1998) 4 SCC 626; AIR 1998 SC 2120

Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719

Parricide Case (1973) Grand Bench No 697

Pathumma v. State of Kerala AIR 1978 SC 771

Pennisular and Oriental Steam Navigation Co. v. Secretary of State for India (1861) Bom HCR App.1

People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568

People’s Union for Democratic Rights and others v. Union of India and Others AIR 1982 SC 1473

People’s Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarter (1989) 4 SCC 730

People’s Union for Democratic Rights v. Union of India AIR 1982 SC 1473

Perry v. U.S (1934) 214 U.S. 330 (353)

Person’s case Edwards v. Attorney – General for Canada (1930) A.C. 124, 136 (P.C.)

Plessy v. Ferguson (1896) 163 U.S. 537

Pradeep Jain, Dr. v. Union of India (1984) 3 SCC 654; AIR 1984 SC 1420

Pritam Singh v. The State AIR 1950 SC 169

Privacy of Communications Case (1970) 30 B VerfGE 1

Profulla Kumara Mukherjee v. Bank of Khulna AIR 1947 PC 60

R

R v. Coote LR 4 PC 599

R v. Halliday 1917 AC 206

R v. Laba [1994] 3 SCR. 965 47

R v. Secretary of State Transport ex. P. Factortame Ltd. (No. 2) (1991) A 6 603: (1991) All E.R. (3) R. v. Barnsley Licensing JJ. (1960) 2 All ER 703

R.E. Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564

Rafiq v. State of U.P. AIR 1981 SC 559

Ram Pyari v. Union of India AIR 1988 Raj. 124

Ramakrishna Singh v. State of Mysore AIR 1960 Mys. 338

Ramana Dayaram Shetty v. International Airport Authority of India AIR 1979 SC 1628

Re Alberta Statutes (1937) DLR 100 (130)

Re Art 26 of the Constitution and the Offences against the State (Amendment) Bill 1940

Re Berubari Case AIR 1960 SC 845

Re Kerala education Bill AIR 1958 SC 956

Re Noise Pollution AIR 2005 SC 3136

Re Presidential Reference AIR SC I 23

Re Quebec Succession (1998) 2 SCR 217

Re Special Court reference Case AIR 1965 SC I

Revathi v. Union of India AIR 1988 SC 835

Rio Corpn. v. W.E.C (1978) 1 All ER 434 (HL)

Roe v. Wade (1973) 410 U.S. 113

Romesh Thappar v. State of Madras AIR 1950 SC 124

S

S. Rathi v. Union of India AIR 1998 All 331

S.C. Chandra and others v. State of Jharkhand and others AIR 2007 SC 3021

S.P. Gupta v. Union of India AIR 1982 SC 149

S.P. Sampath Kumar v. Union of India AIR 1987 SC 386

S.R. Bommai v. Union of India AIR 1994 SC 1918: (1994) 3 SCC 1

S.R. Chaudhary v. State of Punjab (2001) 7 SCC 126: AIR 2001 SC 2707

Saheli v. Commissioner of Police AIR 1990 SC 513

Sajjan Singh v. State of Rajasthan AIR 1965 SC 845

Sakal Newspapers Private Ltd. v. Union of India AIR 1962 SC 305

Sankalchand Himatlal Sheth v. Union of India AIR 1977 SC 123

Sarala Mudgal v. Union of India (1995) 3 SCC 635

Satwant Singh v. Assistant Passport Officer, New Delhi AIR 1967 SC 1836

Savita Samvedi v. Union of India (1996) 2 SCC 38

Schering v. Falkman (1981) 2 All ER 321 (CA)

Shankari Prasad Singh Deo v. Union of India AIR 1951 SC 458

Sheela Barse v. Union of India (1986) 3 SCC 596

Shiv Kant Shukla v. ADM (Additional District Magistrate) Jabalpur AIR 1976 SC 1207

Shiv Sagar Tiwari v. Union of India AIR 1997 SC 83

Shriram Food and Fertilizer (M. C. Mehta) v. Union of India (1986) 2 SCC 176

Simranjit Singh Mann v. Union of India (1992) 4 SCC 653

Sitao v. Emperor AIR 1943 Nag. 36

Somerset v. Steward 98 Eng Rep 494 (K.B. 1772)

Southwest case (1951) 1 B VerfGe 14

Sowmitri Vishnu v. Union of India AIR 1985 SC 1618

St. Stephen College v. University of Delhi (1992) 1 SCC 558

State of Assam v. Labanya Probha AIR 1967 SC 1575

State of Bihar v. Abdul Majid AIR 1954 SC 245

State of Bihar v. Kameshwar Singh AIR 1952 SC 252

State of Bombay v. F. N. Balsara AIR 1951 SC 318

State of Gujarat v. Shantilal Mangalaldas AIR 1969 SC 634

State of Kerala v. N.M.Thomas AIR 1976 SC 490

State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006 86

State of Maharashtra v. Maruty Sripati Dayal 1987 Cr LJ 549

State of Maharastra v. Manubhai Pragji Vashi AIR 1996 SC 1

State of Mysore v. Sanjeeviah AIR 1967 SC 1189

State of Rajasthan v. Union of India AIR 1977 SC 1361

State of Rajasthan v. G. Chawla AIR 1959 SC 544

State of Rajasthan v. Vidhyawati AIR 1962 SC 933

State of W.B. v. Ashutosh Lahiri AIR 1995 SC 464: (1995) 1 SCC 189

State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75

State of West Bengal v. Bela Banerjee AIR 1954 SC 170

State of West Bengal v. Union of India AIR 1963 SC 1241

Stockdale v. Hansford (1859) 8 LJQB 294; (112 ER 112); (1839) 9 A and E

Sudipt Mazumdar v. State of M.P. (1983) 2 SCC 258

Sunil Batra (II) v. Delhi Administration AIR 1980 SC 1759 

Sunil Batra (I) v. Delhi Administration AIR 1978 SC 1675

Supreme Court Advocate on Record Association v. Union of India (1993) 4 SC 441: AIR (1994) SC 26

Surendra v. Nabakrishna AIR 1958 Orissa 168

T

T Devadasan v. Union of India AIR 1964 SC 179

T.C. Basappa v. T. Nagappa AIR 1954 SC 440

T.M. Pai Foundation v. State of Karnataka AIR 2003 SC 355

The High Commissioner for India v. I.M. Hall AIR (35) 1948 PC 121

The State (Walsh and others) v. Lennon and others (1942) Ir R. 112

Triplex Co. v. L.S. Glass (1939) 2 All ER 613

U

Union of India v. H.S. Dhillon AIR 1962 SC 1062

Union of India v. M.S. Mohammed Rawther AIR 2007 SC 3014

Union of India v. P.D. More AIR 1962 SC 630

Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645: AIR 1993 SC 2178

V

Veena Sathi v. State of Bihar AIR 1983 SC 339

Vellore Citizen Welfare Forum v. Union of India (1996) 5 SCC 647

Vincent Panikurlangara v. Union of India (1987) 2 SCC 165

Vineet Narain (I) v. Union of India (1996) 2 SCC 199

Vineet Narain (II) v. Union of India (1998) 1 SCC 226: AIR 1998 SC 889

Vishaka v. State of Rajasthan AIR 1997 SC 3011

Volkswagen Denationalization case (1961) 12 B VerGE 354

W

Watson v. Walter (1868) 4 IRQB 294; (1868) 4 QB 73; 38 LJQB 34

Wolf v. Colorado (1948)338 U.S. 25 Ref; 93 Law Ed. 1782

Y

Yoshida v. Japan (1965)

Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321

Contents

Title

Copyright

Dedication

Preface

Acknowledgments

List of Abbreviations

Table of Cases

1. Introduction to Judicial Activism

2. Judicial Activism under Different Constitutions A Brief Comparative Study

3. Judicial Activism in India: Historical Perspective

4. Judicial Activism in India during the Post-Emergency Era

5. Judicial Activism and Public Interest Litigations

6. Judicial Activism and Rule of Law

7. Conclusion

Bibliography

Index

Chapter 1

Introduction To Judicial Activism

The edifice of any democratic government rests on three pillars – the executive, the legislature and the judiciary. These three pillars constitute the three organs of the government machinery. The powers and functions of these organs are defined in the constitution which constitutes the supreme law of a democratic government. Under the constitution, the primary function of the legislature is to make law, that of the executive is to execute law and that of the judiciary is to enforce the law. In the enforcement of law, the constitution assigns three roles to the highest judiciary – (1) firstly, as an interpreter of the constitution to solve any ambiguity in the language of any provision of the constitution; (2) secondly, as the protector of fundamental rights which are guaranteed by the constitution to its people; and (3) thirdly, to resolve the disputes which have come by way of appeals from the lower judiciary. Under a federal constitution the judiciary also decides the disputes arising between the federal authorities and the state authorities. In playing its assigned roles, the judiciary reviews the actions of the other two organs – the legislature and the executive as to whether they have exceeded the limits set by the constitution or whether they have encroached the rights of the people through arbitrary laws and arbitrary actions. This is where judicial activism comes into play. Through judicial activism the judiciary plays an activist role in performing the tasks assigned to it by the constitution.

In recent times, there has been a criticism of judicial activism as judicial overreach thereby violating the separation of powers between the three organs. Through this book an attempt is made to know as to whether an activist role on the part of the judiciary is judicial activism or judicial overreach. If it is judicial activism whether there is a need of judicial activism under the scheme of the constitution and whether judiciary has exercised such activism properly or it has committed mistakes. If there has been judicial transgression what are the reasons because of which the judiciary has exceeded its limits and what should be the remedy or future course of action for the judiciary in discharging its duties by remaining within the limits assigned by the constitution.

The current study has been discussed in seven chapters. The first chapter introduces us to the phenomenon of judicial activism by defining judicial activism, discusses the types of judicial activism, the distinction between an activist judge and a non–activist judge, the relation between judicial activism and the living constitution philosophy, whether judicial activism has violated the separation of powers and the constitutional perspective of judicial activism in India.

The second chapter discusses the phenomenon of judicial activism under different constitutions through a brief comparative study. The discussion concentrates on the study of judicial activism under the constitutions with parliamentary supremacy and under the constitutions with constitutional supremacy. The discussion of judicial activism under the constitutions with constitutional supremacy covers the constitutions with Bill of Rights and without Bill of Rights.

The third chapter discusses judicial activism in India through historical perspective. The historical study is confined to the pre–emergency period of 1950 to 1974 and the emergency period of 1975 to 1977. The discussion of judicial activism during the pre–emergency period is further classified as judicial activism during the Nehruvian period of 1950 to 1964 and judicial activism during the post-Nehruvian period of 1965 to 1974.

The fourth chapter discusses the study of judicial activism in India during the post-emergency era. The discussion concentrates on judicial activism in India through human rights jurisprudence. The post-emergency era is dealt with from the year 1978 onwards.

The fifth chapter and the sixth chapter are a continuation of the discussion on judicial activism in India during the post–emergency era. The fifth chapter is a study of judicial activism in India though Public Interest Litigations. The sixth chapter is a study of judicial activism in India through rule of law.

The seventh chapter draws conclusion from the whole study. The whole study is a combination of descriptive, comparative, historical and analytical approach.

Definition of Judicial Activism

The term ‘judicial activism’ has not been defined anywhere in the Constitution of India nor it has been defined in any Indian statute. Some dictionary definitions of judicial activism are available.

Black’s Law Dictionary defines the term ‘judicial activism’ in the following words:

A philosophy of judicial law-making whereby judges allow their personal views about public policy among other factors to guide their decisions; usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.¹

According to Merriam -Webster’s Dictionary of Law:

Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from the established precedent or are independent of or in opposition to supposed constitutional or legislative intent²

Agarwal’s legal dictionary defines judicial activism or judicial creativity as:

Apparent power of the judges to modify the scope and pattern of existing offences and to create new offences resulting in judge–made law. ³

The phenomenon of judicial activism has been observed both under the Constitution of India and under different Indian statutes. In the absence of a constitutional definition and a statutory definition, different Indian jurists have made an attempt to define the term ‘judicial activism’.

In the words of Justice J.S. Verma:

"Judicial activism must necessarily mean the