Barrister Shameem Haider Patwary
“Court’s authority –possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.” (Dictum of Frankfurter, J. (dissenting) in Baker v. Carr, 369 US 186 at p. 267 (1962)
“All power is, in Madison’s phrase, “of an encroaching nature”. Judicial power is not immune against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint…” (Dictum of Frankfurter, J. (dissenting) in Trop v. Dulles, 356 US 86 at pp. 119-20: 2 L Ed 2d 630 (1958)
“…Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.” (Observation of Frankfurter, J. in Dennis v. United States, 341 US 494-592 at p.525; 95 L Ed 1137 (1951))
“What is the argument on the other side? Only this that no case has been found in which it has been done before. The argument does not appeal to me in the least. If we never do anything which has not been done before we shall never get anywhere. The law will stand still while the rest of the world goes on; and that would be bad for both”. (Per Denning, L. J. in Packer v. Packer (C.A.) 1953, 2 All E.R. 127)
* Barrister Shameem Haider Patwary, Chairman, Board of Trustees, Dhaka International University, Dhaka, Bangladesh. Correspondence to: Barrister Shameem Haider Patwary , E-Mail: [email protected]
“Judicial activism which midwifed Public Interest Litigation (PIL), is a much debatable branch of public law. So much deliberation has been made on this topics that no longer it remain only as legal phenomenon rather it becomes a matter of discourse by executives as well as politicians even in Parliament. Initially judicial activism and PIL was disseminated so much because of its extraordinary populist approach commensurate with the welfare state conception as well as with the vow of social justice as contemplated in the constitution. Now in their matured phase these notions have now been ruthlessly criticized due to “overreach”, “judicial excess”, “judicial trivialism”, “judicial totalitarianism” etc. In this article judicial activism and PIL are defined in line of settled definition, then emphasis was given how and why it developed in India and Bangladesh. Particular emphasis is given in the phase by phase development in India vis-à-vis overdue but horizontal development in Bangladesh. I also focused on the distinguished sui juris features of PIL, PIL’s abuses, instances of over judicial activism or judicial adventurism and the most plausible solutions e,g; “judicial self restraint”. In this article a special emphasis is also given on “suo moto” rule which is considered in this article as an instance of “judicial excess”.
Public Interest Litigation, overreach, judicial excess, judicial trivialism, judicial totalitarianism, sui juris, judicial self restraint, suo moto.
No other judicial conception has received so much attention of public at large or in media as judicial activism and Public Interest Litigation (PIL) has received. This epistolary jurisdiction1 based on the principle of participatory justice2 has initially concentrating only enforcing and upholding fundamental right of the citizen (known as first phase of PIL), then it also started dealing with protection, prevention of ecology, environment etc related issues (known as the second phase of the PIL) and finally it has started dealing with issue relating to maintaining probity, transparency and integrity of government (known as the third phase of PIL).While legal system of the sub-continent based on common law system mixed with some element of Romano-Germanic tradition, but so far as PIL is concern it’s a de novo idea and practice coined by right spirited conscientious Indian judges and wholeheartedly expounded by judges of neighbouring countries and soon became a South Asian pride followed by or at least referred to in many other countries including countries proclaimed to have most civilized legal system. But the way judicial activism and PIL has expanded so far breaking the traditional shackles/barrier e.g. locus standi, pre-maturity, disputed questions of fact etc which was dominant also in the field of public law is often has criticized as “self-invented Frankenstein”. This is because often exercise of PIL is done in complete disregard of separation of power ,filed by proxy litigant or busy body for publicity or often they are bad due to the element of “over judicial activism” or “judicial adventurism”. Often critics do not hesitate to term PIL as “publicity interest litigation”. This is because there are considerable instances of “judicial overreach” or “judicial excess” as well as instances under the guise of judicial activism when visibly PIL deviates from its fundamental nature i,e; “litigation in the interest of the public”. This is why the imposition of judicial self restraint is now of paramount importance for upholding constitutional integrity and balance as well as for upholding the images of the judiciary and limitation on judicial activism and PIL should be regarded as the fourth phase of PIL.
Judicial Activism or Judicial Creativity
Law never stands static. It is always in locomotion so as constitution which is a continuously developed living orgasm. The expression “judicial activism” signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws3. It means the exercise of judicial power evolving new principles, new concepts, new maxims, new formula, new equities, new procedures and new reliefs going beyond and sometimes alien to the known traditional judicial jurisprudence as well as substantive and procedural law4. As a matter of fact judicial activism is the product of certain activist judges. As Lord Scarman observed in Duport Steels Limited v. Sirs
“Great Judges are in their different ways judicial activists.” According to Dworkin,
“Judicial activism holds that courts should accept the directions of constitutional provisions in the spirit. They should work out principles of legality, equality and the rest, revise these principles from time to time in the light of fresh moral insight”.5
I consider judicial activism is a misleading term as because there is no such thing as judicial in-activism or in-active judge. In fact many examples of activism are nothing but examples of judicial creative interpretation6. Interpreting law, being a creative practice, ipso facto make the judges active and vibrant and/or creative. That’s why some jurists prefer using the term “judicial creativity” rather than much popular term “judicial activism”7. In the view of Justice Bhagwati, the great egalitarian judge;
“Judicial Activism is nothing but the proactive role played by the judiciary in ensuring, protecting and preserving the rights and liberties of citizen8.
Justice Iyer considered judicial activism as an instant of ‘vistaramic curial expansionism’ and ‘vigilant functionalism’ which has developed into a ‘radical affirmative jurisprudence’ within its own parameters9.
No doubt judicial activism is travesty of the Montesquieuan balance, but it would not be exaggerated to consider it as a pervasive power and a ‘brooding omnipresence’10 and a necessary adjacent to any legal system because in many instances it able to produce justice in its true and effective purport. In fact the whole saga of judicial activism is nothing but justice-ism compromising formalistic legal process.
Development of Judicial Activism or Judicial Creativity in India
After independence of India the Indian Supreme court felt compelled to get rid of the colonial conservative approach of interpretation to meet the mandate entrusted upon them to ensure social justice by enforcing avant grante provision of the great egalitarian instrument i,e; Indian Constitution, enacted as suprema lex. Forensic thoughts in the shape of judicial activism, social action, public interest litigation all emanated from this broad egalitarian omnipotent jurisprudence. No doubt judicial activism or its species PIL is the byproduct of the challenge great Indian judges faced to transform the Supreme Court of India into Supreme Court of Indians.
But judicial activism in India often has been treated as a reactionary approach of Supreme Court in protest of naked political interference during 70’s by mean of political appointment, suppression etc. The naked suppression followed by his voluntary resignation in protest by Mr. Justice H.R. Khanna due to his dissenting judgment in Habeas Corpus case11 created a strong resentment among the members of legal fraternity12.Judicial independence was most magnificently affected during this period by the political executives13. In what amounted to a declaration of independence the court invented for India the concept of PIL14. As Granville Austin comments:
“Due to the presence of several activist Judges who perhaps subconsciously were compensating for the court’s record during the emergency-the court become an active, not just a reactive, protector of the fundamental rights and the social revolution.”15
Though according to Granville Austin PIL was invented or formulated as a re-action or protest of executive interference but I consider it as a slightly belated realization of constitutional mandate hugely influenced by inept and ineffective activities of executive which compelled the right spirited conscientious judges not to stand idly by and allow state machinery to become a ‘statutory mockery’16. Whatever be the reason for its invention it would not be exaggerated to say that PIL is a highly effective step in the armoury of law for reaching social justice to the common man which is always the prime objective of any civilized legal system as well as for any constitutionally limited government. As Durga Dus Basu comments:
“Public Interest Litigation (PIL) is an innovative strategy which has been evolved by the Supreme Court for the purpose of providing easy access to Justice to the weaker sections of Indian Humanity and it is a powerful tool in the hands of the public spirited individuals and social action groups for combating exploitation and injustice and securing for the under privileged segments of society their social and economic entitlement.”17
Thus PIL become an essential component of Indian justice delivery system which seeks to correct its image in the eye of its poorer citizenry and thus restore the rule of law in the justice system.18
Three Phase Development of PIL Judicial Activism in India
In India PIL developed broadly in three phases which has been beautifully enumerated by Justice Bhandari in his vivid and extensive judgement on PIL in State of Uttaranchal v. Balwant Singh Chaufal19. If the case of the decade of 70 and 80 analysed, they are pertaining to enforcement of fundamental rights of marginalized and deprived section of the society, who because of extreme poverty, illiteracy and ignorance can not approach Supreme Court or High Court20. Notable cases discussed in this phase are Jasbhai Motibhai Desai v. Roshan Kumar21, Bar Council of Maharashtra v. M.V. Dabholkar22, Mumbai Kamgar Sabha v. Adbullah Faizullabhai23, Sunil Batra v. Delhi Admn24, Husssainra Khatoon(IV) v. State of Bihar25, Prem Shankar Shukla v. Delhi Admin26, Municipal Council, Ratnam v. Vardhichan27, Fertilizer Corpn. Kamgar Union28, People’s Union for Democratic Rights29 , S.P. Gupta v. Union30, Upandra Baxi(I) (Dr.) v. State of U.P 31., Nilabati Behera v. State of Orissa32, M.C. Mehta v. State of T.N 33. , D. K. Basu v. State of W.B34 .In the second phases it deals with cases relating to protection, preservation of ecology, environment, forest, marine life, wildlife, mountains, rivers, historical monuments, etc35. Notable cases discussed in this phase are M. C. Mehta v. Union of India36, Rural Litigation Entitlement Kendra v. State of U.P37. , The Court in Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U. P38. , Subash Kumar v. State of Bihar39 , M.C. Mehta v Union of India40, Vellore Citizens’ Welfare Forum v. Union of India41, M.C. Mehta v. Union of India42, M.C. Mehta v. Union of India43, A. P. Pollution Control Board v. Prof M.V. Nayudu44, Essar Oil Limited v. Halar Utkarsh Samiti45, Karnataka Industrial Areas Development Board v. C. Kenchappa46, M.C. Mehta v. kamal Nath47, A.P. SRTC v. S. P. Satyanaryana48, Noise Pollution (V), In re49, Indian Council for Enviro-Legal Action v. Union of India50, S. Jagannath v. Union of India51. The third phase of PIL attempts in maintaining the probity, transparency and integrity in governance52. Instances of third phases are Vineet Narin v. Union of India53, Rajiv Ranjan Singh “Lalan” (VIII) v. Union of India54, M.C. Mehta v. Union of India55, M.C. Mehta v. Union of India, Center for Public Interest Litigation v. Union of India56, Pareena Swarup v. Union of India57.
PIL in India by now has reached in such a extensive way and Indian Supreme Court issued directions, guidelines etc so frequently that often Indian Supreme Court is known as ‘third chamber of legislation’ creating a constitutional imbalance by “overreaching”58 and gradually underpinning the glory of judicial activism and PIL.
The Delayed Birth of PIL Judicial Activism in Bangladesh
The Preamble of the Constitution of Bangladesh pledges for a socialist society free from exploitation, it vowed for a socialistic economic system to ensure a just and egalitarian society (Art. 10), for emancipation of peasants and workers (Art. 14), for democracy and human rights (Art 11), make provisions for basic necessities (Art 15), for separation of judiciary (Art 22) as well as independence of judiciary (Art 94(1)). This beautiful instrument known as suprema lex contained very entrenched fundamental rights and nicety of the constitution is that here enforcement of fundamental rights itself is a fundamental right (Art 44). Despite having sanctioned from such a great egalitarian instrument our Supreme Court failed to realize the overwhelming impact of PIL jurisprudence on egalitarian jurisprudence until 1998. The Appellate Division did not authoritatively establish PIL in Kazi Muklesur Rahman vs. Bangladesh (Berubari Case)59 In 1991 again PIL was categorically denied in Bangladesh Sangbadpatra Parishad v. Bangladesh60. Ultimately PIL found its judicial support in the wordings of Mostofa Kamal, J in Dr. Mohiuddin Farooque v. Bangladesh61:
“When a public injury or public wrong or an infraction of a fundamental right affecting an indeterminate number of people is involved, […], any member of the public, being a citizen […] or an indigenous association […], espousing the [public] cause […], has the right to invoke the [Court’s] jurisdiction.” So when the PIL in India in it’s fullest youth it remains only in a rudimentary form in Bangladesh. That why Ridwanul Haque62 considered it as “delayed birth of Public Interest Litigation”. This is partly due to the fact that the judges get rid of conservative colonial interpretation in a very late hour and lately realized their overwhelming constitutional mandate and also by the fact that the beautiful piece of instrument i,e; constitution was dismantled immediately after its inception and again and again.
The Fecundicy of Public Interest Judicial Activism in Bangladesh
In Bangladesh development of PIL was not phase by phase rather the same was developed from all dimension partly due to easy transportation of bloomed PIL Jurisprudence from India and due to simultaneous growth of PIL lawyer and right spirited, conscientious, activist Judges. The expression “person aggrieve” as test of locus standi soon superceded by the evolving idea “sufficient interest” as test of locus standi .Thus in Bangladesh standing accepted in Parvin Akter v. RAJUK (Environment)63, Dr. Mohiuddin Farooqe v. Bangladesh, (1998) (flood control)64; Bangladesh v. Md. Aftabuddin (appointment of secretary of law)65; Sultana Nahar v. Bangladesh (right to live)66; Sultana Kamal v. Bangladesh67 (validity of general election of parliament held beyond the period prescribed and the constitutionally of emergency powers Ordinance and rules of 2007), Rafiqe (Md) Hossain v. Speaker68 (Voter rising issue relating to registration of members of parliament),Rocky Kobir v. Bangladesh69 (Detention of particular girl who was neither an accused nor a witness). However, the floodgate of PIL was initially controlled quite meticulously by imposing bona fide litigant requirement etc. Thus standing was denied in BRAC v. Professor Mozaffar Ahmed70 (standing of an economist to challenge validity of non- objection certificate for incorporation of a bank by a registered society); Mostofa Kamal v. Bangladesh71 (Location and sitting of a hat). Even recently High Court Division strengthened upon the examination of ‘sufficient interest’ as a test to discourage proxy PIL72. In Md.Shajahan Santu Vs.Govt of Bangladesh and others73 High Court Division warned:
“This court sitting writ jurisdiction can not allow its process to be abused by persons in order to gain any objective or delay legitimate administrative action. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good.”
Therefore the growing concern both from the bar end as well as bench end is the abuse of PIL or proxy PIL or publicity PIL which compelled some of the judges to shift from the lenient approach on locus standi to the rigid traditional approach.
Suo Moto Rule: An Instance of Judicial Adventurism
The striking different in crystallization of PIL jurisprudence in India and Bangladesh is that while in India it initially developed as “epistolary jurisdiction74”, then subsequently Indian Supreme Court imposed the requirement of verified document prepared by the legal counsels. Whereas in Bangladesh it was not developed as “epistolary” 75 rather it developed initially in the form of formal petition by some activist lawyer, but in the present phase it is getting more informal day by day even activist judges frequently issuing suo moto on the basis of newspaper article or reporting76. However it can not be denied that it is consistent with the basic spirit of PIL in as much as by suo moto rule on the basis of newspaper reporting remedy is being offered to those who have no means to seek legal recourse77. The practice of suo moto rule on the basis of new paper reports often proved to be useful. Recently in a suo moto Rule 50/2012 based on a news paper reporting that a wrong person is in jail for 4 years 9 months just because of his name resemble with a convicted fugitive person though other particulars completely distinguish. The rule issuing Bench headed by Mr. Justice A.H.M. Shamsuddin Chowdhury Manik directed the Deputy Commissioner to furnish detail report which categorically identified that the person is not the fugitive-convicted person. Direction was issued for immediate released of the prisoner and further directed to award him taka 20 lac from the own pocket of those reckless public servants. Perhaps this is the only instance of judicial activism under criminal jurisdiction, i,e; under section 561A78 of the Code of Criminal Procedure, 1898, though judicial activism is always regarded within the domain of constitutional jurisprudence. This is one of the very few examples of exercise of “compensatory jurisprudence” based on the principle of “corrective justice”79. These types of clear cut justice producing instance made judicial activism so supportive from many quarters often covering the criticism of its legging behind constitutional sanction.
However, it is strongly contented that issuing of suo moto rule on the basis of a newspaper reporting is extremely unsafe given that we do not have transparent and accountable journalist society. It must be made mandatory that no interim order should be given in such suo moto rules unless it is extremely pertinent for disposal of the rule and final verdict must be based on credible commission report. It is humbly submitted a newspaper reporting which is neither a verified document nor a sworn evidence has no or trivial evidentiary value. To make it credible the requirement that the reported be sworn an affidavit that he had taken due diligence in publishing the report should be imposed. Critics also argued that by such activities PIL not only penetrating on disputed facts or evidential issues but also it make impliedly the rule issuing judges a party to a proceeding thus creating an atmosphere where pre-conceived judicial verdict might be delivered. It is also argued that issuing suo moto rules often hinder the principle of natural justice80. It is noteworthy that despite the prevailing enthusiasm no criteria was available from the apex court when suo motu rule could be issued leading to the court’s pick and choose in their discretion81.In fact the defect of suo moto rule is not in the modus of its exercise rather the doubt as to whether it lacks express constitutional sanction and often been treated as an instance of ‘judicial adventurism82’ and/or ‘judicial over activism83’ by the positivists. This is because Article 10284 of the Constitution of the People’s Republic of Bangladesh does not contemplate the power to issue suo moto rule in as much as both the article 102(1) and 102 (2) contemplate judicial activism “on the application of any person”. In PIL the requirement of “person aggrieved” has been interpreted in an extremely lenient manner but it is submitted that the requirement of “on the application of any person” cannot be dispensed with as because of the dominant prevalence of the maxim “Expressio unius alterius exclusion”85. Mahmudul Islam86 expressed his deep concern on issuance of suo moto rule in the following manner, “However, in their desire to play the activist role, some of the judges of the Supreme Court exceeded the jurisdiction conferred by the constitution. They have been issuing suo moto rule under art. 102, though filing of an application by the person aggrieved or by a person having sufficient interest is the pre-condition for assumption of jurisdiction under that article. This is plainly a violation of the Constitution which the learned judges are oath-bound to protect, preserve and defend. However good intentioned such issuance of rule may be, it impinges on rule of law and constitutionalism and defies the separation of powers adopted by the Constitution87.”
Dr. Kamal Hossain88 in a seminar on “Constitutionalism” while asked about the legitimacy of issuance of suo moto rule opined that such rule may be issued only in rarest of rare cases where the victim or aggrieved persons are not in a position to make an application. Supporter of suo moto rule often referred to Indian precedence but ignore the visible differences in the wordings of Article 3289 of Indian Constitution read with Article 22690 vis a vis Article 102 of our constitution. The former does not postulate “on the application of any person” thus authoritatively sanctioned issuance of suo moto rule while the later does not. The Indian constitution is not in pari materia91 in this regards with our constitution. No doubt a strict positivist approach certainly do not authoritatively sanctioned issuance of suo motu rule. But according to Redwanul Haque:
“.suo motu jurisdiction has strong legal and constitutional legitimacy, derived particularly from the constitutional objectives of rule of law, justice, and human dignity.” 92
Haque followed Warner Menski and found his forceful argument as worth quoting:
“ If a judge, reading his paper over breakfast, discovers that a poor individual has willfully been deprived of a basic right, how can he go to court a little while later and pretend that he can be in charge of processes designed to achieve justice? It is a matter of individual conscience, and a matter of respecting the suffering of others, less fortunate that oneself, that one cares and takes action .” 93
However, from an wider judicial activism approach such issuance has legitimacy since Supreme Court being guardian of the Constitution is also under an oath bound responsibility to expound and enforce it in toto not only in letter but also in spirit so that citizens enjoy protection under this beautiful instrument in an optimum magnitude and mere technicalities cannot restrain the judges to do so.
Judicial Overreaching: Shifting the Constitutional Balance
Jurisprudentially judge’s activities are governed by either the Blackstonian discovery theory followed by Lord Coke, Mathew Hale and Bacon or the creative theory propounded by Bentham, Austin, Hart and Gary. Supporters of judicial legislation does never consider it as judicial overreach rather these are part of creative interpretation94 and even the most activist interpretation of Marshall CJ in Marbury was viewed as nothing more than textualism95 or structuralism96. A modern advocate of judicial lawmaking is Ganguly J, who recently in his dissenting judgment in University of Kerala v. Council of Principals of Colleges, Kerala cited Articles 123, 213,103,192,105, 145,146,227 and 229 of Indian constitution which clearly reflects that overlaps do exist97 and separation of power as it is even in USA do not subsist in India98. Particular emphasis was give on Art 141 of Indian Constitution99 a counter part of which is Article 111 of Bangladesh Constitution.
The PIL epidemic that has been created by over activist lawyers by filing proxy PIL or otherwise can be control by judicial cautions, but soon it is supplemented by more uncontrolled problem of “judicial adventurism”100 and in a more dangerous manner by “judicial overreaching” converting it a chamber of legislation and attempting to consider it supreme over other constitutional institution including elected chamber. Judicial overreach means issuing of certain orders and indulging in obiter dicta that usurps the power entrusted in the political branches of government in clear violation of the rule of separation of power101. There are complaint, that PIL shift the court from an organ of constitutional review, to as administrative mechanism responsible for enforcing the existing law. Some out of hundreds example of judicial overreaching or judicial legislation by Indian Supreme Court are Vineet Narain v. Union of India102 (CIB investigation was directed and a broad layout of the functioning of the CVC was pronounced) , Vishakha v. State of Rajasthan103 (directions were given to frame laws regarding prevention of sexual harassment of women at workplace), D.K. Basu v. State of West Bengal104 (Guidelines regarding arrest and detention were laid down), Sachidanand Pandey v. State of West Bengal105 (Guidelines for adoption of children), Bodhisattva Gautam v. Subhra Chakraborty106 (compensation to the victims of rape), M. C. Mehta v. Union of India107 (guidelines for environmental protection), University of Kerala v. Council, Principal’s College, Kerala108 (guidelines for the abolition of ragging in colleges and universities), Unni Krishnana v. State of Andhra Pradesh, (1993) 1 SCC 645 (right to education), Prof. Yashpal v. State of Chhattisgarh109 (control of private universities), Centre for Public Interest Litigation v. Union of India110, (control of appointments in high public offices) ; and Nandini Sundar v. Union of India (compliance of human rights by the State authorities etc). Serious questions have been raised about the collapse of separation of power inherent in turning the constitutional court into a ‘examining constitutional magistrate’. Moreover, uncontrolled judicial activism resulted in the erosion of the principle of ‘stare decisis’. It is very much doubtful whether such magistracy and/or ombudsman type authority or judicial legislation in such extensive level is permitted within parameter of the constitution. Constitutionalism postulates limitations on the powers of all organs including judiciary. Under the scheme of Indian Constitution as well as our constitution neither the Parliament is sovereign nor the judiciary except in their own sphere. Constitutionalism apparently also negativities judicial legislation. In the Indian context Kashyap observed, “For some decades now, with all due deference, the judiciary may be said to be under a narcissus complex, looking at its image of a creator or artificer of law.111” Kashyap justified the vertical extension of judicial activism through ‘creative jurisprudence’ in the following manner:
“So far judiciary is concerned, it tried to step in where, it felt that the executive and/or the Legislator had failed to perform their responsibilities” 112.
However, at no point judicial activism even in its extreme legitimate extension contemplate or envisages “judicial totalitarianism” or “judicial excess” or “judicial adventurism” or “activism reaching to the point of overreach and adventure”. Pratab and Singh attempted to justify that many instances of judicial overreach are nothing but examples of judicial creative interpretation. 113 They further suggested renaming judicial activism as judicial creativity114 as they believe it will resolve the controversies but it is nothing but giving a bad cow a good name. Ruma Pal J, in an important jurisprudentially articulated and dispassionately evaluative article115 discusses re overreach through interpretation, re overreach in matter of policy, re impracticality and re democracy and judicial accountability. Dr. Anand, former Chief Justice of India though approved activism, yet did not approve “judicial adventurism” 116. Justice B.N. Srikrishna in an extra-judicial statement observed even in 2005:
“In the name of Judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of “distributive justice”. The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide117”.
The Indian Prime Minister, Dr. Manmohan Singh cautioned Indian judiciary against judicial overreaching and said that the growing perception that the ‘PIL had become a tool in the hands of the judiciary for harassment’118. Later on he also articulated his concerns on PIL so that ‘PILs cannot become vehicles for setting political or other scores119’. In the similar vein J S Verma, former Chief Justice of India expressed his deep concerns:
“Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest,…The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has taken over the implementation of the programme through non-statutory committees formed by it120 .”
In a newspaper article Pratab Bhanu Mehta did not hesitate to comment that ‘the evidence of judicial overreach is now too overwhelming to be ignored…courts are doing things because they can, not because they are right, legal or just121’. Even the greatest exponent of social justice through judiciary the pioneering judge of PIL Iyer,J comments, “…Judges transgress legitimate borders and when sharply challenged, hide behind contempt power and stultify, even trivalise, the pragmatic wonder of Public Interest Litigation (PIL)122.” He continued ‘some judges, rarely though, are indiscriminate and verge on forensic totalitarianism’123. Iyer also warns, ‘of course, judicial absolutism is destructive of the legitimacy of judicial power even as judicial megalomania tends to populism, excessism and trivialism’124. It is argued that the judiciary has usurped the role of the Legislature and Executive. Followers of excessive activism attempted to justify judicial legislation on the ground that other organs are not performing their functions well, as the argument can be made against the Judiciary as well because there are cases pending in courts for half a century125. If the other two organs attempted to abdicate judicial function on that ground a constitutional catastrophe is inevitable.
Judicial Restrained a Necessary Adjacent To Judicial Activism
In a series of literature advocates from the camp of “restrained activism” cited instances of judicial totalitarianism or adventurism or abdication of legislative powers which certainly underpinning the very focal point of PIL126. As Justice B.N. Srikrishna warns, “The discourse of judicial restraint and judicial activism leads to discernment of distinct fault lines that may lead to volcanic upheavals if not repaired in good time.’’127
Even the greatest exponent of independence of judiciary often denied judicial creativity and gave particular emphasis on judicial restraint. As Lord Denning in an extra-Judicial writing comments: “So far as judicial power is concern, it is a mistake to think of a judge as having power. He has jurisdiction to decide cases , but he has no power of his own , His only power is to decide according to law : and the law is to be found in the statutes or in the doctrines laid down by his predecessors over the years. In particular, no single Judges has power of his own128 .”
Denning categorically denied the creative role of the judges and further denied their involvements in policy matter;
“Judicial power rests on the combined wisdom of the judges. Their jurisdiction is more restrictive than creative. Their principal function is to restrain the abuse of the power by other in the state…So far as creative work is concerned, so as far as active policy is concerned, there the judges have no hand…. So must all political reforms129.”
N. Cardozo comments long before,
“The judges even when he is free, is still not wholly free. He is not to invoke at pleasure. He is not a knight- errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinate to the primordial necessity of order in the social life. Wide enough in all conscience is the field of desecration that remains130.”
No doubt the judges are abdicating the legislative function in Indian sub-continent and as such the constitutional balance is at stake. Montesquieu in Chapter XI of his book “The Spirit of Laws” categorically warns:
“…there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
This doctrine which can be traced back even in the writing of Aristotle also found support in the literature of John Locke. Following them James Medision wrote:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”.131
The warning is also from the juridical pronouncement from Indian Supreme Court that judges must not encroach into the executive or legislative domain, vide Tata Cellular v. Union of India132, Ram Jawaya Kapur v. State of Punjab133, Asif Hameed v. State of J & K134, Indian Drugs & Pharmaceuticals Ltd. v. Workmen135, S.C. Chandra v. State of Jharkhand136 and recently in the strong wording by Justice Markandey Katju in Divl. Manager, Aravali Golf Club v. Chander Hass137 (Golf Club case) whereby an instance of overreach in directing creation of posts of tractor driver by the High Court was held beyond jurisdiction. Judicial overreach is a matter of justifiable concern which calls for a healthy and reasoned criticism on the part, particularly, of the informed citizenry138. Vijay Kumar139 welcomed such endeavour of judicial restraint and considers ‘Justice Katju has done yeomen’s service by inaugurating the practice of interrogation of judicial overreach’140 .Justice Katju continuously propagating for judicial restraint and a recent instance of which is his dissent with Justice Ganguly in University of Kerala v. Council of Principals of Colleges, Kerala141
It is humbly submitted that the above cautionary rule is absolutely relevant in the present era of judicial activism or over activism. It is humbly submitted that the judges are not crusheders and any attempt of set them in such a position would create serious disaster is our country, in particular here the constitutional balance and beautiful instrument known as “suprema lex” has been disrupted so many time by ‘coup d etat’ or even by proclaim democratic political party. The ultimate disaster would be so if the imbalance is done by the judiciary.
PIL which was once treated as weapon for “proletariats”, “have not’s ” and which was treated so for as most effective measure to bring justice to the doorstep of those who is in a vulnerable position not be bring his cause before court is now even termed as “self invented Frankenstein”. PIL is nothing but a modify version of the “participatory jurisdiction” rather than establish or creating judicial supremacy or judicial autocracy and further more function and overlap in some case is inevitable. It is felt that in a welfare State, the courts are often has to play creative role to advance the salutary objectives enshrine in the constitution as preamble or fundamental police or elsewhere but it also felt that the judiciary has been over-willing to jump into the arena of executive or legislative functions and it is therefore imperative to define the contours within which these powers may be exercise142. As Anirudh Prashad and Chandrasen Pratap Singh143 suggested a lakshaman rekha needed to be drawn which judiciary should not cross. So in its modern phase (may be called as the fourth phase of PIL) the quest is to find out the golden mean to balance “judicial activism” and “judicial absolutism”. As in the Golf Club Case Justice Katju observed:
“32. Of the three organs of the State…only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self –restraint144.” As Chief Justice (as he was then) Hidayatullah commented,
“There are many ways of skinning a cat. You can do it quietly or you can do it ostentatiously145.” Another greatest exponent of judicial self-restrained, Justice B.N. Srikrishna , warns about judicial activism, “…deviation from the well-trodden path frequently leads to wholly unjust outcomes.” and concluded, “…it is preferable to do the judicial skinning quietly and unostentatiously and in accordance with positive law.” We should echoes in the same vein as judiciary now must adopt towards a ‘self-restrained’ approach otherwise restriction might come from other institution which will not only be derogatory but will also diminishing the high authority or majesty of judiciary.
Judicial activism is a reality so as PIL. None ever attempted to undermine its necessity per se. These are the practices which converted dry printed pages of constitution into a living and flourishing instrument. In doing so often the judges had to encroach upon executive or legislative domain. But this overlapping must be the last resort to do justice and should not be a recurrent incident. In the end there is this problem before us. As the great historian Lord Acton Said “all power tents to corrupt. Total power corrupt absolutely.” Who is to control the exercise of power? Only the Judges. Someone must be trusted. Let it be the judges146.
1. Epistolary Jurisdiction is an element of PIL meaning that the Supreme Court may act on receipt of a letter from a citizen requesting protection of his fundamental rights.
2. Participatory justice presupposed that there will be a collaborative effort on the part of the three organs of state in promoting justice or certain cause.
3. Pritham Kumar Ghosh, “Judicial Activism and Public Interest Litigation in India”
4. Anirudh Prasad and Chandrasen Pratab Singh, EBC, 2012 “Judicial Power and Judicial Review-An analysis of the Supreme Court in Action” 933
5. An activist judge must have amongst other qualities to choose from the group of possibilities open to him the possibility that accords more with the interest of justice that any other possibility. see Ram Kishore Choudhury and Tapash Gan Choudhury, “Judicial Reflection of Justice Bhagwati”EBC,2008 p-246.
6. (1980) 1 All ER 529, 551
7. Ronald Dworkin, 2008 “Taking Rights Seriously”, Universal, 4th Indian Reprint p-137
8. Anirudh Prasad and Chandrasen Pratab Singh, EBC, 2012 “Judicial Power and Judicial Review-An analysis of the Supreme Court in Action” 781 9. ibid, 780
10. Ram Kishore Choudhury and Tapash Gan Choudhury, EBC, 2008 “Judicial Reflection of Justice Bhagwati” p-246
11. Justice V.R.Krishna Iyer, 2007 “Legally Speaking” UNIVERSAL, Delhi , REPRINT p-246
12. Term used by Iyer , ibid 218
13. Additional District Magistrate, Jadalpore v. S. Shukla, AIR 1979 SC 1207
14. See H. R. Khanna , “Neither Roses nor Thorn”, EBC, 2003 pp. 88-89 . Khanna described his resignation event as, “The fact that it resulted in foregoing and losing the office of Chief Justice of India did not hurt very much for such consequence was expected from the moment I prepared mu judgment in the habeas corpus case and also because many others have paid much greater price for following the voice of their conscience.”
15. Granville Austin 2010 “Working a Democratic Constitution: A History of the Indian Experience’’ Oxford India Paperbacks, publication , 7th Impression at p.439
16. ibid 440
18. The term was used by Krishna Iyer in Municipal Council, Ratlam , petitioner v. Vardichand and others, Respondents 1980 (4) SCC 162,174. This case is also important as this is one of the very few cases where PIL jurisprudence was used in subordinate jurisdiction.
19. For an excellent chapter on PIL see Durga Dus Basu, 2008 “Commentary on the Constitution of India”, 8th Edition, BUTTERWORTH:WADHWA, 3 vol , p-3830
20. Gurdial Singh Nijar, “Public Interest Litigation: A Matter of Justice an Asian Perspective”
21. State of Uttaranchal v. Balwant Singh Chaufal,(2010) 3 SCC 402, per Bhandari, J
23. 1976 1SCC 671
24. 1975 2 SCC 702
25. 1976 3 SCC 832
26. 1978 4SCC 494, this case is an example of epistolary jurisdiction initiated on the basis of a letter from an inmate prisoner
27. 1980 1SCC 98
28. 1980 3SCC 526, in this case rule was issued on the basis of a telegram from an inmate prisoner
29. 1980 4SCC 162
30. 1981 1SCC 568
31. 1982 3SCC 235
32. 1981 Supp SCC 87
33. 1983 2SCC 308
34. 1993 2SCC 746
35. 1996 6SCC 756
36. 1997 1SCC 416
37. See footnote 21, Ibid as per Bhandari, J
38. 1987 1 SCC 395
39. 1985 2SCC 431 : AIR 1985 SC 652
40. 1990 4 SCC 449 AIR 1990 SC 2060
41. 1991 1 SCC 598:AIR 1991 SC 420
42. 1988 1 SCC 471: 1988 SCC (Cri) 141
43. 1996 5 SCC 647: AIR 1996 SC 2715
44. 1987 4 SCC 463: AIR 1988SC1037
45. 1988 1 SCC 471: 1988 SCC (Cri) 141
46. 199 2 SCC 718,
47. 2004 2 SCC 392: AIR2004 SC 1834
48. 2006 6 SCC 371: AIR 2006 SC 2038
49. 2000 6 SCC 213
50. 1998 8 SCC 533: 1998 SCC (L & S)1710: AIR 1998 SC 2962
51. 2005 5 SCC 733: AIR 2005SC 3136
52. 1996 5 SCC 281,
53. 1997 2 SCC 87 54. Ibid
55. 1998 1 SCC 226: 1998 SCC (Cri) 307: AIR 1998 SC 889
56. 2007 1 SCC 110: 2007 1 SCC (Cri) 264
57. 2008 1 SCC 407 : 20081 SCC (Cri) 216 : (2007) 12 SCALE 91
58. 20037 SCC 532: AIR 2003 SC 3277
59. 2008 14 SCC 107 : 200813 SCALE 84
60. The problem of “overreaching” and “self restraint” was dealt extensively in later sections of this article
61. 1974 26 DLR (AD) 44
62. 1991 43 DLR (AD)12
63. 1998 17 BLD (AD) 1
64. See an excellent scholarly work by Ridwanul Haque on Judicial activism titled 2011 “Judicial Activism in Bangladesh: A Golden Mean Approach” (CAMBRIDGE SCHOLARS PUBLISHING, UK 140
65. 1998BLD 117
66. 50 DLR 84
67. 2010 BLD (AD) 1
68. 1998 BLD 363
69. 2009 14 BLC 141, the author was a junior counsel in this case
70. 1995 47 DLR 361
71. 2000 52DLR 234
72. 2002 54 DLR (AD) 36
73. 1997 2 BLC 207
74. Bangladesh Legal Aid and Services Trust (BLAST) and others vs. Bangladesh ,64 DLR 2012 203,212
75. 17 BLC (2012) P- 844 , the author was a counsel in this case
76. Term used by Grandville Austin. Austin described epistolary jurisdiction as meaning that the supreme court may act on receive of a letter (even a point card) from a citizen requesting protection of his fundamental rights. Upon receipting of such communication the court may decide to appoint its commissioner to determine if the complaint is worthy of adjudication, if so advised the court may proceed from there. see Grandville Austin, 2010 “Working A Democratic Constitution-A History of the Indian Experience’’ OUP, 7th Impression p. 440
77. The first modern instance of exercising epistolary jurisdiction by the High Court Division on the basis of a letter is Dr. Faustina Pereira v. The State 2001 53 DLR (HCD) 414; Formal proceedings was also drawn on the basis of a postcard to Morshed, C.J, in Lt. Col. G. L. Bhattacharya v. The State 1963 15 DLR (Dacca) 175 ; see also Ridwanul Haque , op sit at p150.
78. A particular section of this article was dedicated to examine the validity of the Supreme Court’s power to issue suo moto rule.
79. State v Deputy Commissioner, Satkhira, 1993 45 DLR (HCD) 643 is the first reported suo moto intervention on the basis of newspaper reporting.
80. Section 561A of the Code of Criminal Procedure, 1898, reads as follows: “Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of Justice.”
81. “Corrective Justice, as propounded by Aristotle, seeks to restore equality when this has been disturbed, eg by wrongdoing, which assumes that the situation that has been upset was distributively just”- see R W M Dias, 1994 “Jurisprudence” , Butterworth 5th Edition 1985, First Indian Reprint ,pp 65
82. See Asif S.K. Khosa, 1993 “Suo motu exercise of writ jurisdiction”, PLD Journal Section, pp16-19
83. In a seminar report of an HRCP Seminer titled “Public Interest Litigation: Scope and Problems” published by Human Rights Commission of Pakistan the speakers and penalists categorically stressed that judge’s discretion should not be the sole criterion for initiating suo motu proceedings.
84. Judicial adventurism is judicial attempt to tackle or solve the problems which by nature are judicially insoluble. see Glossary in Anirudh Prasad and Chandrasen Pratab Singh, 2012 “Judicial Power and Judicial Review-An analysis of the Supreme Court in Action” (EBC, pp 932.
85. Judicial overactivism means the exercise of judicial power crossing the limit of permissible judicial creativity and laying down priorities, policies and programmes and giving directions to execute even non-obligatory functions lying entirely in discretion of the executive and the legislature or other authorities. see Glossary in Anirudh Prasad and Chandrasen Pratab Singh, EBC, 2012 “Judicial Power and Judicial Review-An analysis of the Supreme Court in Action” pp 932.
86. Article 102 of the Constitution reads as follows: (1) the high court division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the republic , as may be appropriate for the enforcement of any of the fundamental rights conferred by part III of this constitution. (2) the high court division may ,if satisfied no other equally efficacious remedy is provided by law – (a) on the application of any person aggrieved, make an order – (i) directing a person performing any functions in connections with the affairs of the republic or a local authority, to refrain from doing that which he is not permitted by law to do or to do which he is required by law to do; or (ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs to the republic or of a local authority, has been done or taken without lawful authority and is of no legal affect ; or (b) on the application of any person , make an order – (i) directing that a person in custody be brought before it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or (ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office. (3) Notwithstanding anything contained in the forgoing clauses, the high court division shall have no power under this article to pass any interim or other order in a relation to any to which article 47 applies. (4) whereon an application made under clause (1) or sub clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of – (a) prejudicing or interfering with any measure designed to implement any development program or any development work ; or (b) being otherwise harmful to the public interest, the high court division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorized by him in that behalf) has been given an opportunity of being heard, and the high court division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b). (5) in this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defense services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
87. A Latin maxim meaning “Express mention of one thing implies the exclusion of another”, see P Ramanatha Aiyar, 2006 “The Law Lexicon”, 2nd Edn. Reprint, WADHWA NAGPUR, pp 687
88. Senior Advocate, Supreme Court of Bangladesh and former Attorney General of Bangladesh
89. Mahmudul Islam, 2012 “Constitutional Law of Bangladesh”, 3rd Edition, Mullick Brothers , Preface page X.
90. Dr. Kamal Hossain , Barrister-at-law, Senior Advocate who headed the Constitution Drafting Committee back in 1972.
91. Article 32 of India Constitution reads as follows: “32: Remedies for enforcement of rights conferred by this part. – (1)the right to move the supreme court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed; (2) the supreme court shall have power to issue directions or orders or writs, including the writs in the nature of habeas corpus , mandamus, prohibition, quo warrranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part. (3) without prejudices powers conferred on the supreme court by clause (1) and (2), parliament may be law empower any other court to exercise…of its jurisdiction all or any of the powers exercisable by the supreme court under clause (2) .(4) the right guaranteed by this article shall not be suspended except as otherwise provided for by this constitution.”
92. Article 226 of Indian Constitution reads as follows 226: Power of High Courts to issue certain writs:- (1)Notwithstanding anything in article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority , including in appropriate cases, any government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus , mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.] (2) the power conferred by clause (1) to issue directions, orders or writs to any government, authority or person may also be exercised may any high court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such government or authority or the residence of such person is not within those territories. [(3) where any party against whom an interim order, whether by way of injunction or stay or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b)giving such party an opportunity of being heard, makes an application to the high court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the high court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the high court is closed on the last day of that period, before the expiry of the next day afterwards on which the high court is open; and if the application is not so dispose of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.] [(4)] the power conferred on a high court by this article shall not be in derogation of the power conferred on the supreme court by clause (2) of article 32.]
93. Statutes in pari material are those relating to the same person or thing or having a common purpose. see P Ramanatha Aiyar, “The Law Lexicon”, 2nd Edn. Reprint 2006, WADHWA NAGPUR, pp 902.
94. Ridwanul Haque “Judicial Activism in Bangladesh: A Golden Mean Approach” (CAMBRIDGE SCHOLARS PUBLISHING, 2011, UK) pp.156
95. See Warner Menski, 1996 “Introduction: The democratization of justice in India’. In Gurjeet Singh, pp. xxv-liv, cited in Ridwanul Haque 2011 “Judicial Activism in Bangladesh: A Golden Mean Approach” Cambridge Scholars Ppublishing, UK pp.156.
96. See Pratab and Singh, op sit at, p 781
97. Textualism is the result of the constant modifications of the plain meaning approach.
98. Structuralists gather the principle of interpretation, not from the words of single passage, but from the structure or framework of a constitution.
99. ibid page 364, para 25.
100. See Minarva Mills Ltd v. Union of India
101. Article 141 of Indian Constitution reads as: “141. Law declared by Supreme Court to be binding on all courts.-The law declared by the Supreme Court shall be binding on all courts within the territory of India.”
102. Judicial adventurism is judicial attempt to tackle or solve the problems which by nature are judicially insoluble.
103. See Glossary, Prasad and Pratab Singh, pp 933
104. 1998 AIR 1998 SC 889
105. 1997 AIR 1997 SC 3011
106. AIR 1997 SC 610
107. AIR 1987 SC 1109
108. 1996 1SCC 490
109. 1997 2 SCC 353
110. Civil Appeal No. 887 of 2009, D/8 May 2009, Supreme Court
111. 2005 5 SCC 420
112. Writ Petition (Civil) No. 355 of 2010, decided on 3 March 2011 by the Supreme Court of India
113. Subhas C Kashyap, 2010 “Indian Constitution, Conflicts and Controversies”, VITASTA, New Delhi pp 250.
115. Article 111 of Indian Constitution reads as: “111. The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it. ”
117. Ruma Pal J, 2008 “Judicial Oversight or Overreach: The Role of Judiciary in Contemporary India”, 7 SCC J-9
118. 1999 7 SCC J-I.
119. B.N. Srikrishna J, 2005 “Skinning A Cat”, 8 SCC J-3
120. Viden Upadhyay, 2007 “Public Interest Litigation in India: Concepts, Cases, Concerns”, Butterworths, Delhi pp335
121. ‘Line Dividing Activism and Over-Reach Is A Thin One: PM’s Caution To Bench’, Indian Express, 9 April 2007’ see Viden Upadhyay, 2007 “Public Interest Litigation in India: Concepts, Cases, Concerns”, Butterworths, Delhi pp334
122. Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 24 March 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24 by JS Verma, Former Chief Justice of India and reproduced in ‘Judicial activism should not be neither judicial ad hocism nor judicial tyranny’, Indian Express, 6 April 2007, cited in Viden Upadhyay, 2007 “Public Interest Litigation in India: Concepts, Cases, Concerns”, Butterworths, Delhi pp333
123. Pratap Bhanu Mehta, 2007 ‘with due respect, Lordships’, The Indian Express, 12 March, cited in Viden Upadhyay, ibid
124. Justice V.R. Krishna Iyer, 2007 “Legally Speaking”, Universal, Delhi, p. 253
125. ibid page 218
126. ibid p.254
127. Adish C. Aggarwal, 2012 “Judicial Activism in India” published in the book, “Judicial Activism in India” A Festschrift in the honour of Justice V.R. Krishna Iyer, Edited by Lokendra Malik, Universal, New Delhi, p 130
128. See Adithya Reddy, “Judicial Activism or Overreach: Comment on ‘Prakash Singh v. Union of India’ ”, 2009 6SCC J-29; Ruma Pal J, “Judicial Oversight or Overreach: The Role of Judiciary in Contemporary India”, 2008 7 SCC J-9 ; B.N. Srikrishna J , “Skinning A Cat”, 2005 8 SCC J-3
129. B.N. Srikrishna J, 2005 “Skinning A Cat”, 8 SCC p.J-5
130. Lord Denning, “Judges and the Judicial Power” in Rajiv Dhavan, R. Sudarshan and Salman Kurshid (ed.) Judges and The Judicial Power, Sweet & Maxwell. Tripathi, 1985 pp. 4
132. Benjamin N Cardozo, 2008 “The Nature of the Judicial Process”, 7th Indian Reprint, Universal Publisher, Delhi, P- 141
133. See Federalist Papers (esp No. 47), cited in University of Kerala v. Council of Principals of Colleges, Kerala 2010 1 SCC 353
134. 1994 6 SCC 651: AIR 1996 SC 11
135. AIR 1955 SC 549
136. 1989 Supp (2) SCC 364: AIR 1989 SC 1899
137. 2007 1 SCC 408: 2007 1 SCC (L & S) 270
138. 2007 8 SCC 279: 2007 2 SCC (L&S) 897 : JT 2007 10 SC 272
139. 2008 1SCC 683
140. Vijay Kumar, “The Supreme Court of India-Policy Formulator or Active Protector”, MANAK , New Delhi, 2012 p. 108
141. An Advocate of Supreme Court of India who has written numerous articles on constitutional and political issues.
142. Vijay Kumar, ibid
143. 20101 SCC 353
144. Adish C. Aggarwal, 2012 “Judicial Activism in India” published in the book, “Judicial Activism in India” A Festschrift in the honour of Justice V.R. Krishna Iyer, Edited by Lokendra Malik, Universal, New Delhi, p 125
145. Anirudh Prasad and Chandrasen Pratab Singh, op sit, p 781.
146. 2008 1SCC 69
147. Adapted from a speech delivered at the Sesqui Centenary Celebrations of the Government Law College, Mumbai on 01-10-2005 cited in Justice B.N. Srikrishna “Skinning a Cat”, 2005 8 SCC (J) J-24.
148. Lord Denning’s “Judges and Judicial Power” in Judges and Judicial Power, Edited by Rajeev Dhavan. R. Sudarshan and Salman Khurshid, Sweet & Maxwell. Tripathi, P-3