JUDICIAL ACTIVISM VERSUS DOCTRINE OF SEPARATION OF POWERS
JUDICIAL ACTIVISM VERSUS DOCTRINE OF SEPARATION OF POWERS[1]
Two centuries ago, John Marshall, the Chief Justice of the United States of Supreme Court said on the role of the Court: “We must never forget that it is the Constitution that we are expounding intended to endure for ages to come.” And that made the Supreme Court of the United States Supreme in due course of time. Nevertheless, neither the judiciary nor the supporters of its new role of judicial activism should forget that courts are no substitute to the Executive or Legislatures. All the three must play their roles in a manner that will appropriately bring into effect the provisions of the Constitution.[2]
Dr. B. R. Ambedkar, defended the provisions of judicial review as being necessary. According to Dr. Ambedkar, the provisions for judicial review, in particular the writ jurisdiction that gave quick relief against the abridgment of fundamental rights, constituted the heart of the Constitution; the very soul of it.[3]
Nevertheless, the Supreme Court at times has also observed the necessary restrain in exercising judicial activism. Justice Ray in M. P. Oil Extraction v State of M. P.,[4] while declining to entertain a petition concerning policy decision of the government at paragraph 41 observed that:
This Court, in no uncertain term, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of three organs of the State i.e. legislature, executive and judiciary in their respective field of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional schemes so that there may not be any occasion to entertain misgivings about the role of judiciary in out-stepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciates the need for mutual respect and supremacy in their respective field.[5]
Thus, according to Justice Ray for efficient functioning of democracy the legislative, executive and the judiciary must respect each other’s supremacy in their respective field and should not step in one another’s shoes. The three organs should appreciate mutual respect and the Court should decline to entertain any matter that is within the domain of the other organs of the State.
Abraham Lincoln in his first inaugural address evaluated the Supreme Court of the United States in the following words,
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the objects of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government... [But] if the policy of the Government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary legislation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.[6]
Former Chief Justice A. S. Anand in his Millenium Law Lectures,[7] while defending judicial activism, emphasized the need for caution to ensure that activism does not become ‘judical adventurism’, otherwise, he warned, it might ‘lead to chaos and people would not know which organ of the state to look for to stop abuse or misuse of power’.[8] Quoting approvingly the observations in respect of policy making by Lord Justice Lawton in Laker Airways[9] he reiterated the principle that ‘the role of the judge is that of a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play.’ Justice Anand added:
[The] judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered that Court cannot run the government, The Court has the duty of implementing the constitutional safeguards that protect individual rights but they cannot push back the limits of the Constitution to accodomate the challenged violation.[10]
Conclusion
The characteristics of developing countries make separation of powers more desirable but at the same time more difficult to implement.[11] In the words of P. M. Baxi the [Supreme] Court’s specific political role lies in its functioning as a parallel legislature and quite often as a parallel constituent body.[12] As seen in the above discussion today there “is no area where the judgments of Supreme Court have not played a significant contribution in the governance – good governance – whether it be – environment, human rights, gender justice, education, minorities, police reforms, elections and limits on constituent powers of Parliament to amend the Constitution.” The Supreme Court of India as equal, not hierarchically superior, to other branches – is preferable in principle and practice. In the face of the sad reality of the masses being taken for a ride by their elected representatives and their considerable control over the bureaucracy, the citizen’s only hope lies with the judiciary.[13] The people of India look upon the Supreme Court as an instrument of social justice and a guarantor of the great ideals enshrined in the Constitution.[14]
It is argued that while separation of powers is necessary to preserve liberty and democracy, a complete and absolute separation of powers is unworkable and leads to tyranny.[15] And that what is being attempted in modern democracies is “mixed government,” a system of overlapping, intermingling powers, and a system of checks and balances.[16]
[1] Judges v democratically elected legislatures; result-oriented judging v principled-decision making; observance v side-stepping of precedents; law v politics.
[2] M. V. Pylee, Constitutional Government in India, (S. Chand Publication, Delhi 2004), at 350.
[3] Constitutional Assembly Debates Volume 7. 953. See B. Shiva Rao, The Framing of India’s Constitution 311 (N.M. Tripathi ed., 1968).
[4] AIR 1998 SC 145.
[5] Ibid. at para. 41.
[6] Collected works of Abraham Lincoln, 268 (Roy Basler, ed., New Brunswick: Rutgers Uni. Press 1953). As quoted in Robert A. Burt, The Constitution in Conflict, (Harvard University Press 1992), at p. 1.
[7] (October 1999) at the Kerala High Court Advocates’ Association, Kerala.
[8] N. R. Madhava Menon, ‘Basic Structure: After 30 Years’ in Pran Chopra’s (ed.), The Supreme Court versus the Constitution – A Challenge to Federalism (Sage Publications, New Delhi 2006). See also, Justice Dr. A. S. Anand ‘Judicial Review – Judicial Activism – Need for Caution’ in Soli Sorabjee’s, Law and Justice: An Anthology (Universal Law Publishing Company 2003) at 477. See also, Justice A. S. Anand, Millenium Law Lecture Series Thursday, October 21, 1999, Kochi, Kerala. (Kerala High Courts Advocate Association.)
[9] (1977) [2] WLR 234 at 267.
[10] Justice J. S. Verma, ‘Judicial activism should be neither judicial ad hocism nor judicial tyranny’ as published in The Indian Express, 06th April 2007,
[11] Ajit Mishra, T.C.A. Anant, ‘Activism, Separation of Powers and Development’ 81 (2006) Journal of Development Economics 457-477.
[12] Alexander Fischer, ‘Which Road to Social Revolution ? Liberalization and Constitutional Reform in India,’ No. 34, December 2007; Heidelberg Papers in South Asian and Comparative Politics,
[13] S. K. Verma and K. Kusum, Fifty Years of the Supreme Court of India: Its Grasp and Reach (OUP, New Delhi 2003) at 567.
[14] M. V. Pylee, Constitutional Government in India (S. Chand Publication, Delhi 2004) at 353.
[15] K.N. Hari Kumar, ‘The Constitution: who, if anybody, is supreme?’ The Hindu, January 31, 2006
[16] Kermit L. Hall, The Oxford Companion to American Law (OUP, 2002) at 733-736.
About the Author
Adv.Abhaykumar Dilip Ostwal
Advocate, Supreme Court of India
B.S.L. LL.B. LL.M. (University of Birmingham, UK), C.C.F.&M.J. (Gold Medallist), D.I.T.
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