parliament vis-a-vis judiciary -a critical analysis of

PARLIAMENT VIS-A-VIS JUDICIARY -A

CRITICAL ANALYSIS OF SEPARATION OF

POWERS AND JUDICIAL CREATIVITY

Dr. Neelam Tyagi

Abstract

It is often said that the rule of law is the bedrock of

democracy. To ensure rule of law, and the equality before

law, the Indian Constitution separates the three wings of the

government and make them accountable in their respective

domains. The idea is to guarantee that the conferment of any

discretion does not lead to arbitrariness, Judiciary is given

the power to scrutinize any alleged arbitrariness and

declares all acts contrary to constitutional mandate as

invalid. The legislative branch makes laws while the Court is

empowered to interpret the text within the limits of the words

used by the legislature. Since beginning, the judiciary is

asserting itself by developing new laws and interpreting the

old ones, resulting in the debate of its growing influence.

Through its progressive and creative interpretations, the

Court has sent a clear message that individuals have certain

inherent rights which cannot be abrogated by the state. On

one hand judiciary is justified in doing so because of its

constitutional role of supreme interpreter, protector and

guardian of law but the judicial dynamism of this magnitude

is posing threat to the concept of doctrine of separation of

power. The current paper will analyse the scope of judicial

review, changing dynamics in constitutional interpretation,

activists role played by the

Dr. Neelam Tyagi is Assistant Professor, Campus Law Center, Faculty of

Law, University of Delhi.

83

84 Bennett Journal of Legal Studies [Vol. I

judiciary, use of power by judiciary to achieve justice, extent

to which court can interfere especially in policy matters,

ways to create a balance between the power of judicial

review and parliamentary democracy in tune with the

constitutional philosophy.

INTRODUCTION TO JUDICIAL REVIEW AND

SEPARATION OF POWER

“Power corrupts and absolute power corrupts absolutely”

Lord Acton (1834–1902) in 1887

1. Separation of Power

Tyranny, authoritarianism and totalitarian tendencies led to the

emergence of the doctrine of Separation of Powers (hereinafter

SOP). This doctrine ensures exclusivity among the various organs

of government by the distribution of the powers and duties among

its three organs1The writings of the Greek philosopher Aristotle and

English political theorist, John Locke gave the origin to the

rudimentary form of three-fold classification of SOP.2 French

political thinker Montesquieu stressed on the liberty and freedom of

an individual and the need for division of power and functions.3

Blackstone elaborating the doctrine stated that if all the functions

i.e.: legislative, executive and the judicial were given to one man

there will be an end of personal liberty.4 SOP deal with the function

of each organ of the state, its implications on the other organs and

their inter play.5 It ensures that each organ exercises

1 According to the doctrine the legislature should make law, the executive

should execute it, and the judiciary adjudicates the dispute. 2 H. M. Seervai, Constitutional Law of India, (1983). 3 Quoted in G.B. Gwyn, the meaning of separation of powers 101, (1963)

(Montesquieu, The Spirit of Laws, 1748). 4 DD Basu, Commentary on The Constitution of India (2016). 5 See M.P. Jain and S.N. Jain, Principles of Administrative Law, (1986).

2020] Parliament Vis-A-Vis Judiciary -A Critical Analysis 85

their functions within their own sphere without encroachment,

tyranny, despotism and arbitrariness. It prevents concentration of

power in one and the same organ and promotes freedom of the

people by protecting their rights and liberties. It curbs despotism and

oppression and increases the government's efficiency. Indian

Constitution does not accord constitutional status to the doctrine of

SOP6 except under its Article 50.7 The Indian Constitutional scheme

has made demarcation without drawing formal lines between the

three organs.8 There is no strict water tight compartmentalization.9

JUDICIAL REVIEW

The Preamble to the Indian Constitution declares the goal of

constituting India into a “Sovereign Democratic Republic” secure

“Justice (social, economic and political), Equality and Liberty and

to promote Fraternity”10 with the ultimate power given to the people.

Judiciary as a keeper and protector of the constitutional values

promotes social justice through its judgments. It provides every

citizen the guarantees promised by the Constitution11 and

implements rule of law. It ensures that the government functions in

favour of the people and for their upliftment. Judicial review is a

check and balance mechanism in the doctrine of SOP. Article 32

provides power to the Supreme Court to examine the legislative

6 Initially, Article 40-A provided for the SOP between the executive and the

judiciary but it the idea was rejected by most of the members of the

constituent assembly. 7 Provides for separation of judiciary from the executive 8 P. Neelakandan and Anr. v. Union of India (UOI) and Ors., (2014)12 SCC

696. 9 India Const. art. 53, art. 61 and 75, art. 75(5), art 103, art124, art 213, art

228. Union and the States can make laws on List I and List II of the Seventh

Schedule of the Constitution and Supreme Court and High Courts can

invalidate laws made by Parliament and the State legislatures. 10 Preamble to the Indian Constitution. 11 India Const. art.39A, Part III on Fundamental rights and Part IV on the Directive

Principles of State Policy.


and the executive actions of the state. Article 13 states that any

enactment which transgresses fundamental rights can be declared as

invalid by the Supreme Court. Whenever the executive stresses on

increased powers and control, the Judiciary exercises it’s

constitutionally mandated role and maintains the balance through

the tool of judicial review.12 The judges ensure that democracy is

all-encompassing.13 It is worth mentioning that the Supreme Courts

power of judicial review extends to Constitutional Amendments.14

The Indian Judiciary intervenes and curtails the violation of

fundamental rights,15 regulates abuse and misuse of power thus

limiting Government arbitrariness and making them more rational.

Thus, the scope of judicial review has three facets i.e.: to ensure

fairness in administrative action, to protect the constitutionally

guaranteed fundamental rights, to rule on questions of legislative

competence between the center and the states. However, the

expansion of judicial review has been criticized as violative of the

doctrine of SOP and as an unnecessary transgression of

parliamentary democracy.

JUDICIAL OPINION ON THE APPLICABILITY OF THE

DOCTRINE OF SEPARATION OF POWERS

As stated above, the power of Judicial review and Judicial activism16

are important essentials of our judicial system as they

12 India Const. art. 226 and 227 of the Constitution for High Courts and Art. 32

and 136 of the Constitution for the Supreme Court. Judicial Review is the

power of the judiciary to pronounce upon the Constitutional validity of the

acts of public authorities, both executive and legislature. 13 G. B. Reddy, Judicial Activism in India 62 (2012). 14 Golaknath v. State of Punjab, 1967 AIR 1643 (India). 15 The National Commission to review the working of the Constitution

(NCRWC) also known as Justice Manepalli Narayana Rao Venkatachaliah

Commission that was set up in 2000 to suggest possible amendments to the

Constitution of India. It submitted its report in 2002. 16 INDIA CONST. art. 13, 32, 226,141, 142. Judicial activism means that the

judiciary interferes with the functions performed by the legislature or


keep necessary check on the legislative branch by ensuring that it

functions within the constitutionally permissible boundaries.17 The

debate regarding SOP is old and various judgments are trying to

determine the boundaries of applicability of the doctrine. In I.C.

Golak Nath v. State of Punjab,18 the Court observed that we have

three major instruments of power, their scope, manner of its exercise

and jurisdiction is minutely demarcated. These instruments are

expected to exercise their respective powers within the spheres

allotted to them without overstepping their limits. Again, in

Keshavanda Bharati v. State of Kerala,19 the Court propounded the

basic structure doctrine and that all legislations are amenable to

judicial review. In case of Indira Nehru Gandhi v. Raj Narain,20

hon’ble Supreme Court stated that “the rigid SOP does not apply to

our country as concentration of powers in any one organ will

destroy the fundamental premises of a democratic government to

which we are pledged. The three organs must act in concert, not that

their respective functions should not ever touch one another but the

limitation needs to be respected and preserved.”

In Bandhuva Mukti Morcha v. Union of India,21 commenting on the

SOP the apex Court observed that the Constitution envisages a broad

division of the power and not precisely but there is a general

acknowledgment of its limits which can be gathered from the

executive organs of the government. It is against the doctrine of SOP but

encourage judges to look beyond the established precedents and give a

progressive interpretation that favour the new social policies. Judicial

Restraint encourages a judge to put restraints on the exercise of their own power.

17 Sudhanshu Ranjan, , Justice, Judocracy and Democracy in India: Boundaries and Breaches, 106 (1st Ed. 2012).

18 I.C. Golak Nath v. State of Punjab ,1967 AIR 1643 (India). 19 Keshavanda Bharati v. State of Kerela, (1973) 4 SCC 225 (India). 20 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (India). 21 Bandhuva Mukti Morcha v. Union of India, AIR 1984 SC 802 (India).


written text of the Constitution, conventions, constitutional practice,

and from judicial decisions. SOP is a mechanism without which

both, equality before the law and rule of law, would be redundant ie:

if the legislative, executive and judicial powers are vested in one

organ.22 Evaluating both the concepts of SOP and Judicial review,

in Asif Hamid v. State of Jammu & Kashmir,23 it was held “Judicial

review is a powerful weapon to restrain unconstitutional exercise

of power by the legislature and executive. The expending horizon of

judicial review has taken in its fold the concept of social and

economic justice. While examining any action court should see if the

legislature or the executive has acted within the powers and

functions assigned under the Constitution and if not, the court must

strike down the action. While doing so the court must remain within

its self-imposed limits. Judicial review of administrative action does

not permit the court to direct or advise the executive in matters of

policy.”

JUDICIAL ACTIVISM AND CREATIVE AND PURPOSIVE

EXPANSION OF THE CONSTITUTIONAL PROVISIONS

Since beginning, Judiciary has taken the role of activist, protector

and promoter of rights through Public Interest Litigation24 and

Social Action Litigation.25 The concept of Judicial review that was

evolved by chief justice Marshall in famous case of Marbury v.

22 I.R. Coelho (Dead) by L.Rs. v. State of T.N., (2007) 2 SCC 1 (India). 23 Asif Hamid v. State of Jammu & Kashmir, 1989 AIR 1899 (India). 24 Public Interest Litigations is an innovation, a socio-economic movement by

which the judiciary makes available justice for the weaker sections of the society.

25 Social Action Litigation is the litigation in the interest of the general public

which ensures that the ignorant and the poor are not exploited by those who

are in a position. See Bihar Legal Support Society v. Chief Justice of India,

(1986) 4 SCC 767 (India).


Madison26 has given rise to the movement of judicial activism.27

Under its activist role, judiciary is giving directions to ensure that

constitutional and statutorily mandates are complied with. To

improve the situation of the disadvantaged sections of the society, it

is innovatively interpreting constitutional provisions. From narrow

textual interpretation to wider overarching interpretation of rights in

the Constitution of India, the Courts have evolved various favorable

principles and developed the “rights jurisprudence”. A very

pertinent example is that of Article 21,28 in which the Court has

interpreted the word “life’ to mean not mere survival but a life of

dignity as a human being.29 In a number of cases it held that the right

to life is not restricted to mere animal existence30 but includes bare

necessaries of life such as adequate nutrition, clothing and shelter,

free movement, mixing with fellow human beings etc.

It was Maneka Gandhi v. Union of India31 wherein interpreting the

words ‘life and personal liberty’ the judiciary marked the formal

beginning of the concept of judicial activism. The liberal judicial

interpretation of words ‘life’ and ‘liberty’ led to the phenomenal

development of a variety of other rights which are now considered

as necessary for the enjoyment of life. Creative interpretation given

to Article 21 proves how Court can bring almost every aspect of

26 Marbury v. Madison ,5 U.S. (1 Cranch) 137 (1803). This U.S. Supreme Court

case established the principle of judicial review which provided that the

Courts have the power to strike down laws, statutes, and some government

actions that contravene the U.S. Constitution. 27 Judicial activism is a philosophy of judicial decision making by which the

judges allows their personal views about public policy to guide their decision.

28 India Const. art. 21 of the Constitution of India- “No person shall be

deprived of his life or personal liberty except according to procedure

established by law”. 29 A K Gopalan v. State of Madras, AIR 1950 SC 27 (India). 30 Francis Coralie v. Union Territory of Delhi, AIR 1978 SC 597 (India). 31 Maneka Gandhi v. Union of India, AIR 1978 SC 1643 (India).


life under its ambit. Now, the right to life with human dignity is

construed as encompassing every facet of human civilization which

makes life worth living32 including right to food,33 education,34

health,35 sleep,36 livelihood,37 access to roads,38 fair and speedy

trial,39 right against sexual harassment,40 to name a few. In the field

of environmental jurisprudence, Judicial activism concerns with the

framing of rules and regulations to protect, provide and promote the

right to pollution free environment for citizens.41 Through its catena

of judgements pronounced and interpretations given under Article

21 environmental jurisprudence is all set to achieve new

dimension.42

JUDICIAL ACTIVISM- CHANGING DYNAMIC,

INTERPRETATION AND RECENT DEVELOPMENTS

In the last few years, the concept of Judicial activism has assumed

immense significance. Today each and everything is falling within

the purview of Judicial Activism. Upholding constitutional,

32 CERC v. Union of India, AIR 1995 SC 922 (India). 33 Kapila Hingorani v. Union of India, 2003 Supp (1) SCR 175 (India). 34 Unni Krishnan & others v. State of A.P., (1973) 1 SCC 645 (India). 35 Paschim Banga Khet Mazoor Samity v. State of West Bengal, 1996 SCC

(4) 37 (India). 36 In re Ramlila Maidan Incident, (2012) 5 SCC 1 (India). 37 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (India). 38 State of Himachal Pradesh v. Umed Ram, AIR 1986 SC 847 (India). 39 Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360

(India). 40 Vishaka v. State of Rajasthan, AIR 1977 SC 3011 (India). 41 Goa Foundation (II) v. Union of India, AIR 1985 SC 652; MC. Mehta v.

Kamal Nath, AIR 1990 SC 630; In A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd.) (2001) 2 SCC 62. (India).

42 Ratlam v. Vardhichand, (1980) 4 SCC 162, Rural Litigation and Entitlement

Kendra, Dehradun v. State of U.P, AIR 1985 SC 652; M.C. Mehta v. Union

of India, AIR 1987 SC 1086; Sachidanand Pandey v. State ofW.B., (1987) 2

SCC 295 of 298; Indian Council for Enviro- Legal Action

v. Union of India, AIR 1996 SC 1446; A.P. Pollution Control Board II v.

Prof. M.V. Nayudu (Retd.), (2001) 2 SCC 62 (India).


fundamental and individual rights, Judiciary is pronouncing

judgements that are giving new dimension to the current

jurisprudence. Beginning from putting restraint on the legislature by

propounding the concept of basic structure of the constitution to

putting restraint against violation of Article 21 and now through its

recent landmark pronouncements, judiciary is providing fair and

equitable justice for all even to those who see it as beyond their

reach. Based on the premises that individuals have certain inherent

rights which cannot be abrogated by the state or religious

institutions, it is adopting creative interpretation and recognizing

various rights. The recent judgements on judicial activism in the

legislative sphere are a proof of the fact that Courts are moving way

beyond its normal role of a mere adjudicator of disputes.

In case of Indra Sawhney v. Union of India,43 the court laid down

the quantum of reservation as there was a vaccum and the

Legislature has not clarified the situation in this regard. In case of

Vishaka v. State of Rajasthan,44 the Supreme Court laid down

guidelines with regards to sexual harassment of women at workplace

when there was no legislation dealing with this issue. The court was

criticized as assuming a legislative role. However, it was held that

the absence of remedy should not be a ground for injustice. It was

further observed that failure to perform its duty that may lead to

miscarriage of justice is the apt occasion to which the judiciary must

rise.45

43 Indra Sawhney v. Union of India, AIR 1993 SC 477 (India). 44 Vishaka v. State of Rajasthan, AIR 1997 SC 3011 (India). 45 This activist approach of the judiciary led to the passing of Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013. Legislature tool almost ten years to lay these

guidelines.


Yet another case illustrative of judicial activism in the executive

domain is Vineet Narain v. Union of India,46 in which the Supreme

Court has down detailed guidelines and directions for the executive

and legislative on the issue of public corruption and its abolition.

The court invented a new writ called “continuing mandamus”. It laid

guidelines on exercising supervisory jurisdiction on investigating

agencies, to monitor them, creating body like Central Vigilance

Commission, supervising their functioning and devising various

innovative procedural techniques.

The power of judicial review was again scrutinized in case of

Supreme Court Advocates-on- Record Association & Anr. v. Union

of India 47 wherein Ninety-ninth Amendment Act, 2014, and the

National Judicial Appointments Commission Act, 2014 were

declared unconstitutional, violative of the independence of judiciary

which is a basic structure of the Constitution. It sparked debate about

the active intervention by Judiciary in government policies.48

In the context of right to Privacy, in case of Justice K.S. Puttaswamy

(Retd) v. Union of India,49 the right to privacy was established as a

part of right to life. However, the government had vehemently

argued that the citizens right to privacy is not absolute. In this

unanimous judgment pronounced by the nine judges, it was

46 Vineet Narain v. Union of India, (1998) 1 SCC 226, AIR1998 SC 889

(India). 47 Supreme Court Advocates-on- Record Association & Anr. v. Union of

India, (2015) 6 SCC 408 (India). 48 Government with a view to overcome the constraints of the collegium

system, and for that the government proposed NJAC. This new system for

appointment of judges to the higher judiciary was to replace the collegium

system. 49 Justice K.S. Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1 (India).

This petition challenged the constitutional validity of Aadhaar. People’s

Union for Civil Liberties v. Union of India, AIR 1991 SC 207, Selvi v. State

of Karnataka, 2010 (7) SCC 263 (India).


observed that the right to privacy is protected as an intrinsic part of

the right to life and personal liberty under Article 21 and as a part of

the freedoms guaranteed by Part III of the Constitution Commenting

on the power of Judicial Review , the court observed in para 74)

“Judicial review means the Supremacy of law. It has emerged as

one of the most effective instruments of protecting and preserving

the cherished freedoms in a constitutional democracy and upholding

principles such as separation of powers and rule of law. The power

of review is the shield which is placed in the hands of the most

judiciaries of constitutional democracies to enable the protection of

the supreme document......Further Courts can strike down

legislation either on the basis that it falls foul of federal distribution

of powers or that it contravenes fundamental rights or other

constitutional rights/provisions of the Constitution of India”.

In case of Navtej Singh Johar & Ors. v. Union of India the. Secretary

Ministry of Law and Justice,50 the apex Court decriminalized and

partly struck Section 37751 regarding unnatural offences as violative

of the right to equality. It was held that the Section 377 which

criminalises consensual sexual acts of adults in private violates

Articles 14, 15, 19, and 21 of the Constitution. The honourable court

observed “Para 184. The constitutional courts have to recognize

that the constitutional rights would become a dead letter without

their dynamic, vibrant and pragmatic interpretation. Therefore, it is

necessary for the constitutional courts to inculcate in their judicial

interpretation and decision making a sense of engagement and a

sense of constitutional morality so that they, with the aid of judicial

creativity, are able to

50 Navtej Singh Johar & Ors. v. Union of India thethr. Secretary Ministry of

Law and Justice, Writ Petition (Criminal) No. 76 of 2016, Available at

https://bsmedia.business-standard.com/_media/bs/data/general-file-

upload/2018-09/Section%20377%20judgement.pdf 51 The Indian Penal Code, No. 45 Acts of Parliament,1860 (India).


fulfill their foremost constitutional obligation, that is, to protect the

rights bestowed upon the citizens of our country by the

Constitution.”

Another recent case on judicial activism is the case of Common

Cause (registered society) v. Union of India & Anr.52 Differing from

its previous stand the Court declared that passive euthanasia is

permissible and gave legal sanction to living will.53 It stated that

right to live with dignity also includes the smoothening of the

process of dying in case of a terminally ill patient or a person in

Permanent Vegetative State with no hope of recovery. Thus, the

court interpreted the law for giving priority to the interest of the

patient overriding the interest of the State in protecting the life of its

citizens.

Again, the Supreme Court in case of Shayara Bano v. Union of India

and others,54 banned the controversial Islamic practice of Triple

Talaq and declared it unconstitutional. It contended that though the

Constitution accords guarantee of faith and belief55 to every citizen,

but every practice of faith could not be held to be an integral part of

religion and belief. Every religious practice must satisfy the

overarching constitutional goal, of gender equality, gender justice

and dignity. The Court has creatively interpreted the right of women

to live with human dignity irrespective of her religion.56

52 Common Cause (registered society) v. Union of India & Anr, W.P. (Civil) 215 of 2005. Available at https://drive.google.com/file/d/1pbXt

_ywdJopWr0Iz7F0v-KZSXm1upODU/view ( 53 Persons of sound mind and in a position to communicate can indicate the

decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.

54 Shayara Bano v. Union of India and others, Writ (C) No. 2 of 2015. Available at https://indiankanoon.org/doc/115701246/ .

55 India Const. art. 25 56 Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945 .


Declaring the Religious custom of prohibiting women's access to

place of worship or from entering religious premises as

unconstitutional, the Supreme Court in the recent case of Indian

Young Lawyers Association v. State of Kerala,57 declared that such

customs are regressive and patently unconstitutional. The Court

gave precedence to the rights of women to be treated with dignity

and with equal participation in society over the consideration of a

religious institution's rights and a religious custom's "essential

character."

In contrast to its earlier stand, the hon’ble SC in case of Joseph Shine

v. Union of India,58 struck down the old adultery provision.59 The

legislation defends this section on the ground that this essential

provision is necessary for the institution of marriage and any dilution

will negatively impact the sacredness of marriages. However, with

its progressive interpretation, decriminalizing section 497 of the

Indian Penal Code, 1860 the SC made a strong statement that “any

provision of law affecting individual dignity and equality of women

invites wrath of the constitution. The husband is not the master of

wife and legal sovereignty of one sex over other sex is wrong.” These

verdicts will surely impact individual rights enshrined in Articles

14, 19, 21.

Thus, the Judiciary has given a forward-looking view of these laws

and legal provision, have upheld the principles of gender equality

individual autonomy and freedom which so far have been curbed by

the law, society and religious practices. In all the above cases the

power of Judicial review was debated and criticized for

57 Indian Young Lawyers Association v. State of Kerala, Writ Petition (Civil)

No. 373 of 2006 58 Joseph Shine v. Union of India, (2018) 2 SCC 189 . 59 The Indian Penal Code, No. 45 Acts of Parliament,1860 .


violating the parliamentary supremacy of the Parliament. It is

proposed that if the Supreme Court declares unconstitutional a

legislative act or the action of an elected executive, it thwarts the

will of representatives of the actual people . . . it exercises control,

not in behalf of the prevailing majority, but against it.60

JUDICIAL OPINION ON JUDICIAL CREATIVITY AND

JUDICIAL RESTRAINT

Adopting the approach of judicial activism, law making by Courts

has assumed new dimensions. Public Interest Litigation has

transformed the Indian judiciary into a very creative and powerful

wing. It is playing the creative role by formulating and developing

new principles, concepts, rules and laws according to the changing

times and in social context.61 Judicial activism has turned a judge

into an activist. Judicial overreach or judicial over-activism is a

concept which is contrast of judicial activism and judicial restraint.62

When exercising the powers, the legislature and executive is subject

to judicial restraint, the only check on Court's exercise of power is

the self-imposed discipline of judicial restraint.63 While playing the

activist role of interpreting

60 Alexander M. Bickel, the least dangerous branch: the Supreme Court at the

Bar of Politics, 16–17 (1962). 61 Upendra Baxi, The Indian Supreme Court and Politics, (1989). 62 According to the doctrine of self-restraint, all the organs try to fulfill the

aspirations of the nation and uphold the rule of law, without interfering into

the domain of the other. Constitution must be considered as supreme. In

case of Suresh Kumar Koushal and another v. Naz Foundation and others (2014) 1 SCC 1 "self-restraint has been exercised by the judiciary when

dealing with challenges to the constitutionality of laws. This form of

restraint has manifested itself in the principle of presumption of

constitutionality." Judicial Restraint encourages judges to limit the exercise

of their own power. The Courts interpret the laws avoiding reconsideration

of the governmental policy decisions made within the ambit of their

constitutional spheres of authority. 63 Asif Hamid v. State of Jammu & Kashmir, 1989 AIR 1899 (India); Trop v.

Dulles, 356 US 86.


constitution Judiciary is often criticized for usurping its limits. There

are number of cases in which the courts have discussed the creative

role of judges, their scope and limitations.

The Court in Jagdambika Pratap Narain Singh v. Central Board of

Direct Taxes,64 observed“ the evolving legal system in a developing

country, permits judges to play a creative role and innovate to

ensure justice without doing violence to the norms set by legislation.

But to invoke judicial activism to set at nought legislative judgment

is subversive of the constitutional harmony and comity of

instrumentalities”. In Mohinder Singh Gill v. Chief Election

Commissioner, New Delhi,65 evaluating the concept of Judicial

Creativity Court held that “...today the advances made by natural

justice far exceed old frontiers and if judicial creativity be lights

penumbral areas it is only for improving the quality of government

by injecting fair play into its wheels”.

In S. P. Gupta v. President of India,66 while discussing the Concept

of Independence of the Judiciary, the Court observed that our

Constitution casts an obligation on judiciary, to transform the status

quo ante into a new human order. The judiciary cannot adopt a

merely passive or negative role but adopt a positive and creative

approach. In Sher Singh v. State of Punjab67 the Apex Court

explaining the horizons of Article 21 stated that it is widening, and it

is the duty and endeavour of this Court to give to the provisions of

our Constitution a meaning which will prevent human suffering and

degradation. In Municipal Corporation of Greater Bombay v.

64 Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, AIR

1975 SC 1816 . 65 Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR

1978 S C 851 . 66 S. P. Gupta v. President of India, AIR 1982 SC 149 . 67 Sher Singh v. State of Punjab, (1983) 2 SCR 582 (.


Indian Oil Corporation Ltd.,68 it was held that keeping in view the

social, economic and political goal, Judges are called upon to

perform a creative function. “he has to inject flesh and blood in the

dry skeleton provided by the legislature and by a process of creative

interpretation, invest it with a meaning which will harmonise the

law with the prevailing concepts and values and make it an effective

instrument for delivering justice.”

In Delhi Transport Corporation v. D. T. C. Mazdoor Congress,69 it

was again observed that the strict construction is an established rule

and Judges when interpreting statutes should give effect to the

legislator’s intent. In Indra Sawhney v. Union of India,70 the court

stated that the permissible judicial creativity in tune with the

Constitutional objectivity is essential to the interpretation of the

Constitutional provisions so that the dominant values may be

discovered and enforced. In All India Judges' Association v. Union

of India,71 the Court observed that each case coming before the judge

has its own peculiarities requiring application of fresh mind and

skill. The judge has constantly to be a creative artist and he should

indulge in constant thinking and display of talent and creativity.

In DC. Ravichandran Iyer v. Justice A.M. Bhattacharjee 72 a very

pertinent observation was made regarding the role of the judges is

not merely to interpret the law but also to lay new norms of law and

to mould the law to suit the changing social and economic

68 Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd.,

AIR 1991 SC 686. 69 Delhi Transport Corporation v. D. T. C. Mazdoor Congress, AIR 1991 SC

101. 70 Indra Sawhney v. Union of India, 1992 Supp 2 SCR 454. 71 All India Judges' Association v. Union of India, AIR 1993 SC 2493 . 72 DC. Ravichandran Iyer v. Justice A.M. Bhattacharjee, 1995 SCC (5) 457

(India).


scenario to make the ideals enshrined in the Constitution meaningful

and reality. In State of Bihar v. Bal Mukund Sah,73 the Court has

emphasized its creative role in achieving the goal of socio-economic

justice. It was held that judiciary has to take up a positive and

creative function in securing socio-economic justice to the people.

“...the Constitution is a document of social revolution which casts

an obligation on the judiciary to establish new order… in which

justice, social, economic and political will inform all institutions of

national life and there will be equality of status and opportunity for

all. The judiciary has, therefore, a socio- economic destination and

a creative function”. Discussing the extent of permissible creativity,

it was held that the primary function of judiciary is to interpret the

law. It may lay down principles, guidelines and exhibit creativity in

the field left open and unoccupied by Legislation.74

BALANCING THE POWER OF JUDICIAL REVIEW AND

PARLIAMENTARY DEMOCRACY IN TUNE WITH THE

CONSTITUTIONAL PHILOSOPHY

Judiciary is playing a very significant role in the making of law,

construing constitutional provisions and in the interpretation of the

fundamental rights and liberties of citizens enshrined in our

Constitution. The concept of Judicial activism is a widely debated

issue and the recent developments has given altogether new

perspective to it. The critics consider judicial activism as an

unwanted intrusion by the Courts into the dominion of other wings

i.e. executive and legislature. The supporters see it as a sign of hope

as it insists on human rights and checks governmental shortcomings

and lawlessness. But it is expected that the Judicial

73 State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296 . 74 P. Ramachandra Rao v. State of Karnataka, AIR 2002 S C 1856. .


creativity should not disturb the delicate balance between the three

wings of the State. The system of maintaining this balance is

essential for the avoiding conflicts between the three organs of

government and ensuring that none of these organs becomes too

powerful. Powers are appropriately granted, and the checking

mechanisms are in place. Indian Courts have tried to restrain

themselves and usually interferes under limited situations.

According to Cardozo, creativity of the court should be mainly for

the creation and introduction of certain new concepts not found in

any specific provision of the Constitution, but are essential for its

meaningful interpretation.75 It may be used for giving progressive

interpretations to the Constitutional provisions while keeping in

mind the current situations, social issues and directed towards

protecting the interests of the less privileged.

For maintaining parliamentary democracy, the Courts should

intervene in only pertinent situations. In S.R. Bommai v. Union of

India,76 it was observed that the judiciary must exercise restraint,

should not over-stretches its limits and encroach on legislative and

executive domain. It stated that “Para 198. The judicial review is,

therefore, a protection, but not a weapon.”

It is also expected that the other wings respect the judicial opinions.

For example, if an Act is made by the legislature and the same is

declared invalid by the Courts on any of the ground (incompetency),

the legislature cannot enact a new law stating that the court decision

will be inoperative. The legislature can enact law after changing the

necessary points of the verdict and sticking to the legitimate

constitutional restraint. The new law cannot be challenged on the

basis of the fact that it evades the courts

75 See Benjamin Cardozo, The Nature of The Judicial Process (1921). 76 S.R. Bommai v. Union of India, (1994) 3 SCC 1(India)


judgment.77Judicial activism can be done either for expanding the

possibilities i.e.: recognition of new areas which were non-existent

so far or are unable to cater to the new circumstances and issues

Secondly, it may be a mean to fill up the void formed when either

the legislature or the executive fail to properly draft and implement

the law and issues come up with respect to the interpretation of the

law.78 The court must take care to see that it does not overstep the

limits of its judicial function and trespass into areas which are

reserved to the Executive and the Legislature by the Constitution.

The Court should not legislate like a Legislature and there should

not be judicial excessivism that is against the doctrine of SOP.79

While exercising its power of judicial review judiciary should

exercise judicial self-restrain. It is expected that none of the courts

will direct the legislature or executive80 authority to pass a law.81

The Court should always apply the ‘presumption of

constitutionality’82 and the concept of ‘reading down’.83 The

presumption support constitutionality of a law. In case of any

alleged disobedience the burden lies on those who challenge this

77 P. Kannadasan & Ors. v. State of Tamil Nadu, 1996(5) SC 670 (India). 78 Shailja Chander, Justice V.R. Krishna Iyer on Fundamental Rights and

Directive Principles 60 (1998). 79 S.P. Sathe, Judicial Activism in India Transgressing Borders and Enforcing

Limits 250 (2002). 80 Power given under the delegated legislative authority. 81 Supreme Court Employees’ Welfare Association v. Union of India, AIR 1990

SC 334 (India). 82 With respect to the legislative power, it means that when the

constitutionality of a statue or provision is challenged and the same is

amenable to two possible interpretations, then the one that favours the

constitution will be taken as valid and the other that violates it is discarded. 83 It means that if any provision is construed in a way that will make it

consistent with the constitution then the Court would lean in favour of this

construction. The interpretation that would render them unconstitutional will

not be favoured.


law on the parameters of the constitutional values.84 The

unwarranted use of judicial activism should not lead to the situation

of judicial transgression. Courts can devise some guidelines for

deciding if or not a case is fit for engaging in judicial activism. The

Courts must see that if any protected right of citizens is infringed,

what socio-economic or political factors are involved in the issue, if

a downtrodden group is affected or not given fair consideration. It

should be considered if failure to act can lead to any kind of

injustice. Also, if judicial review or judicial activism is the only

instrument to protect rights and cure justice while still maintaining

SOP.85 Judges should refrain from acting as policy makers. The

Judicial supervisory power must be limited to the cases of clear

disregard of constitutional duty, law and justice. So long the

policymakers keep themselves within their prescribed limits as

mentioned under the Constitution the judiciary can give

interpretation to the law but should not interfere in policy-making.

The interpretation of constitutional provisions especially

fundamental rights should not be done in over protective manner

rather in a way that would enable the citizens of India to utilize their

fundamental rights in the fullest free manner.86 For this distinction

must be drawn between ‘essential’ and ‘incidental powers’.In the

modern times State is working as a welfare state and performing

diverse roles. A distinction between ‘essential’ and ‘incidental’

powers of an organ will help in ensuring that one organ of the

government does not command the powers belonging to other organ

and thus assume or intrude upon the essential sphere

84 Charanjit Lal v. Union of India, AIR 1951 SC 41 (India). 85 C.K. Takwani, Lectures on Administrative Law 31 (2008). 86 Lalit Narayan Mishra Institute of Economic Development and Social

Change, Patna v. State of Bihar, AIR 1988 SC 1136 (India).


of activity belonging to another organ. Though they may exercise

some incidental functions.87

The broad distinction between ‘essential’ and ‘incidental powers’

imply that one organ of the State should not perform a function that

essentially belongs to another organ. For instance, Legislature will

itself perform the essential legislative function and they cannot be

delegated. In case of In re Delhi Laws Act case88 essential functions

of an organ were recognized as ones which involved laying down of

policies and their implementation as binding rule of law. In case of

Ram Jawaya v. State of Punjab,89 the Court observed: “Para 14. The

Indian Constitution has not indeed recognized the doctrine of

separation of powers in its absolute rigidity but the functions of the

different parts or branches of the Government have been sufficiently

differentiated and consequently it can very well be said that our

Constitution does not contemplate assumption, by one organ or part

of the State, of functions that essentially belong to another. The

executive indeed can exercise the powers of departmental or

subordinate legislation when such powers are delegated to it by the

legislature. It can also, when so empowered, exercise judicial

functions in a limited way. The executive Government, however, can

never go against the provisions of the Constitution or of any law.”

Also, an organ can exercise some of the incidental powers of another

organ but only according to the constitutional provisions and

mandate.

INFERENCES

Thus, we can safely conclude that the doctrine of SOP has come a

long way. Judicial Review to check exercise of power is inevitable

87 I.P. Massey, Administrative Law (9th ed. 2017). 88 In re Delhi Laws Act case, AIR 1951 SC 332 (India). 89 Ram Jawaya v. State of Punjab, AIR 1955 SC 549 (India).


and Judicial activism changes the constitutional provisions to

modern changed context. In case of any gaps, vagueness and

uncertainties the judges are trying to creatively fill the gaps, define

the nuances and clarify the vagueness. In doing so the judges are

discharging both the role of the interpreter and a lawmaker. This role

is expanding and assuming new dimensions. The judiciary is not

only checking the transgression of powers by the other organs of the

state but is playing the “activist” role. The more the vagueness in a

statute, the more is the scope of the employing of discretion in

judicial law making. Judicial creativity has introduced many new

concepts which were not found in any specific provision of the

Constitution but are essential for its meaningful interpretation.

Critics have put the concept of judicial activism under scanner and

criticized it on several counts. They argue that because of judicial

activism, SOP has been under threat. The judicial interference

makes it difficult for executive to deal with new kind of problem as

they fear that judiciary will struck down their suggestion. Even if all

these criticisms are valid, the judicial creativity cannot be put to an

end. However, while seeking justice, judiciary has to be cautious,

must exercise self-restraint, be wary of its constitutional duty and

obligation so that a perfect balance and harmony between the three

organs of the government and doctrine of SOP is maintained. Power

of Judicial review must be exercised with proper checks and

balances. Creative interpretation of the provisions of the statute

demands that the provisions of statue should be construed with a

realistic approach and in a manner that they go hand in hand with

the vision of the founding fathers.

parliament vis-a-vis judiciary -a critical analysis of

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