I. Introduction

“While there can be no two opinions on the need for the maintenance of judicial independence,…it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super- executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights…”- 

Mr. Alladi Krishnaswami Ayyar^[2]

The tussle for power among institutions in India and world over has been an old practice. The constitution makers were careful in not having a water tight separation between the organs of the state, which according to them, would have allowed co-operative governance in the future. The lines quoted above are a testimony as to what was going in the constitution makers minds. They wanted the judiciary to be independent, however still limit its independence within the constitutional framework. Over the years the decentralisation of power between organs gave rise to disputes and matters that started coming before the courts. Based on this the constitutions were amended to encompass solutions to any possible dispute that might arise in the future. These amendments were supposed to act as a cue for the courts to pronounce its rulings. However no law or constitution can contain all answers and this means that grey areas would exist. It is here that the constitution makers thought that the prudence and experience of the institution would help in coming up with amicable solutions without there being a tussle for power and superiority. Unfortunately, that hasn’t happened. Sections of people argue that the judiciary, legislature and the executive by ways and means have tried to hold a superior position with respect to each other. Among the three organs, judiciary as a limb is of primary importance since the faith of citizens and the protection of the constitution rests in its hands.

II. Role of judiciary

To understand the rise of judicial supremacy, it is important to first understand the role of courts in a democracy. The role of the Supreme Court and the courts under its structure in an integrated judiciary is that of ‘interpreter and guardian’ of the constitution. The courts do not settle or make law. They rather only uphold the law already made or interpret the same under the umbrella of the constitution, which is the supreme law of the land. Unlike the US constitution (Article 3), the Indian constitution does not expressly vest the judicial power in the Supreme Court and other courts. This has provided a space for the courts and process of giving justice to grow and evolve. The Supreme Court of India and the lower courts do find a constitutional mention, but aren’t strictly codified. This gives the courts the much needed independence that the constitution makers talked of. However this independence does not come at the cost of making the institution any superior to the legislature or the executive.

The debate around the rise of judicial supremacy isn’t a 21st century invention. It started in the US way back in the late 18th and early 19th century. With the growing power and practice of the legislature, it is important for the courts to be pro active in defending the constitution and stop institutions from cutting bounds. This started with Marbury vs Maddison, 1803^[3], where the court upheld the power of judicial review with the US Supreme Court. It held that the court has the sole power to strike down laws and statutes made by the congress that are violative of the Constitution of United States. This gave rise to the doctrine of Judicial Review and its evolution to the present day in various pro active forms.

Over the years, doctrines of Judicial Activism, Judicial overreach, Judicial Excessivism, Judicial Adventurism etc have plagued the functioning of the judicial system around the world. And this often imposes the question as to whether ‘judicial supremacy’ is real or a mere fallacy?

To better understand this, we need to identify who is sovereign or supreme in a democratic set up. The doctrine of Parliamentary sovereignty is associated with the British parliament. On the other hand we associate Judicial Supremacy to the American Supreme Court. The Indian practice isn’t as compartmentalised as the two systems and had a fine blend of both. The framers of the Indian constitution struck a fine synthesis by giving the courts the power to declare the laws of parliament as unconstitutional and gave the parliament the power to amend the constitution. However this power to the parliament comes with a catch. It’s power to amend the constitution goes as far as the ‘basic structure’ of the constitution isn’t impacted. But this doesn’t end here. The power to decide on what constitutes the basic structure lies with the Supreme Court. However this power of review under Article 13(2) by the Supreme Court isn’t absolute under. The very language of Article 13(2) explains the abundant caution in the way that even in the absence of such a provision the courts would still have the power to examine the constitutionality of a law that infringes upon fundamental rights (AK Gopalan vs State of Madras 1950 ^[4]) . Judicial Review is based on the assumption that the constitution is the supreme law of the land and that all government organs owe their origin, directly or indirectly, to the constitution and derive their powers from its provisions. Therefore not rendering it as the supreme body deciding the fate of laws and statutes. Thus, the answer to “who is supreme” is “The constitution”.

III. Jurisprudential basis

In Spite of the theory of constitutional supremacy being so strongly embedded in the constitution, the talk around ‘judicial supremacy’ is endless. That’s because in practice we’ve seen the courts and the legislature overlap and overpower one another. The sociological school of jurisprudence has come to the fore and the positivist school has taken a backseat. The positivist theory of Austin and Bentham and later improved by Hart and Kelsen says that law is to be distinguished from morality and religion. It says that irrespective of however bad a law is, it’s a law at the end of the day which emanated from a competent legislature. This also went against the Natural law theory which said that bad laws are not law at all. The positivist school holds statutory law at the centre of the legal system. It is the positivist school which argues for a water tight separation of powers between the three organs of the state. On the other hand the sociologists came up in the 19th century as a consequence of laissez-faire doctrine, when the focus shifted from individual to the society. It’s thinkers, one of them being Roscoe Pound, say that the working of the law is more important than its abstract content. This later led him to propound the theory of Social Engineering. He said that all laws are relative to the civilisation in which they arise and the work or jurists and judges should involve the social tangent as well. Justice Oliver Windell Holmes^[5] said “life of the law has not been logic, it has been experience”. This meant that while determining the validity of laws and rules through which men should be governed, lawyers and judges must also take into consideration the prevalent political and moral precepts, public policy and public opinion.  This indirectly meant that the judges and their judgements were to be a work of subjectivity and not merely confined to the statutory limits. This in turn gives the judges the power to modify and change the law to meet social ends. The positivist thinkers have gone so far as to say that the natural and sociological schools are nothing but ‘metaphysical nonsense^[6] ‘In Hart’s opinion, the separation thesis is the essence of legal positivism. The main point or essence of this thesis is that the law and morality are conceptually distinct. It was this positivist school which also influenced people in the US when their Constitutional literature was being written.

Back in the late 18th century when the Federalist papers were being published. Hamilton in the Federalist No. 78^[7] said that the ‘judiciary branch would be the weakest of the three branches’ because it had “no influence over either the sword or purse. It may truly be said to have neither force nor will, but merely judgement”. The changing times and changing nature of governance has over the years made it imperative for the judiciary to play a proactive role, which is a little more than merely being a judge. Since about the mid 20th century, versions of judicial review have evolved under various nomenclatures. When judicial review crosses its limits, it’s called judicial activism. When judicial activism cuts bounds and becomes judicial adventurism, it’s called judicial overreach. The lines between them are thus narrow and blurred.  These terminologies have quite been in vogue in India too ever since The public Interest litigation was called as the pioneer of the judicial activism movement in India.

IV. Evolution and examples

A prominent example of this dates back to 1973 in the Keshavanad Bharati case^[8] when the court expanded the scope of judicial review. Later after the Maneka Gandhi case the incorporation of Due process of law alongside Procedure established by law was another example of judicial activism. These reforms did more good than anticipated. Recent examples of the same are as follows: Arun Gopal v. Union of India (2017)^[9]  the Supreme Court fixed timings for bursting of crackers without any law for the same being in place; annulment of Rule 115(21) of Central Motor Vehicle Rules of 1989 etc . However, as a countermeasure, many from the legislature started voicing their opinion against the expanding nature of judicial power.  Those in the legislature complain that the judicial activism which started as a tool of dispensing social justice through the use of Public interest litigation has now metamorphosed into a tool of correctional jurisdiction which has indirectly impacted the free functioning of the executive and the legislature. Many also argue that the social action dimension of the PIL has been overshadowed by the ‘public cause’ dimension which does not primarily focus on upholding welfare but holding the government and its bodies on a leash. The unique nature of the Doctrine of Separation of powers in the Indian context, which the constitution makers thought would aid the smooth functioning and coordination among the three organs of the state, is now proving to be a bane for Indian governance setup. As a result, it further affects the dispensation of justice and welfare to people.

Prima Facie it does appear that the jurisdiction of the courts in the country has been expanding to the extent that it has in some cases made laws and also played the role of the executive. Some also fear that the rise of sociological jurisprudence has given a free hand to the judges who now have the power to test laws based on their notions. This goes against the literal rule of construction which the positivist school argues for. This argument of the positivist school is reflected in the fact that the executive holds accountability for its failures and inactions. However when the court takes executive actions or enforces them on an authority, the basis of holding someone accountable vanishes and that would in turn lead to institutional failure. The Supreme Court order on banning the sale of alcohol within 500 metres of highways was one such order that was ill defined. Those at the helm anticipated a loss of 75000 crore to the exchequer resulting from a loss in excise revenue. This was done by the court in a sense of any legislation being in force.

Supporters of the proactive work by the courts very validly argue that it is the ‘legislative inaction’ and ‘executive apathy’ which leads to ‘judicial necessity’. If the legislature and executive were allowed to be relaxed in the field of governance, the overall welfare of the citizens would suffer. It is this void which necessitates the intervention by the judiciary. An important question is if the courts have constitutional backing for it’s necessary actions.

V.  Judicial activism as a necessity

Article 142 of the constitution reads –

The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

This article gives Supreme Court the powers to pass orders that it thinks are necessary in delivering justice. This usually happens when the legislative or the executive haven’t done enough as mandated. The example of such inaction was the absence of a law on sexual harassment of women at workplace. The court ultimately had to step in and direct the centre to formulate a law based on the Vishakha Guidelines^[10] it passed in 1997. A similar case of executive inaction was seen with respect to the rising pollution in Delhi. The Supreme Court mandated the formation of a body that later came to be known as EPCA^[11]. Therefore in areas like Environmental jurisprudence, which need activism as a tool to protect the environment, the role of judiciary becomes significant. The courts in the country have played an active role in promoting the principles of ‘Sustainability’, ‘polluter pays’ etc.  If the failure of the legislature and the executive in environmental legislation is overshadowed by Judicial overreach, it does more good than harm. However in practising the use of this power the courts must keep in mind that there was enough jurisprudential basis for the courts to go beyond what the constitution mandates.

The judiciary calling upon the executive to perform its functions is only desirable in most cases. Trouble only arises when the judicial arm oversteps and dons the role of executive and legislature even when the two organs are competent enough to undertake the same functions. Judicial pro activism in areas of environment and ecology, labour issues etc is welcome, however it is termed as intervention when the judiciary suo motto ventures into areas of fiscal policy. It is this intervention that is called judicial overreach. Frequent interventions like these later weaken the fabric of the doctrine of separation of powers. The smooth functioning of these organs of the state can only be ensured when the fine line between Judicial activism and judicial overreach is appreciated keeping in mind the centrality of separation of powers. . This would then curb judicial excessivism and tone down the extent of judicial supremacy.

The next big question which arises is – How should the fine line between judicial activism and judicial overreach be drawn? Are there any parameters to judge the length and reach of the courts?

VI. Conclusion

The answer to this lies in a parallel evolving term of Judicial Restraint. Judicial Restraint acts like a double edged sword which on one hand stops the judiciary from exceeding its jurisdiction and on the other helps maintain the delicate balance among other limbs of the state. To exercise restraint the courts must lay emphasis on the following – Original intent of constitution makers, past decisions in earlier cases and leaving policy making to other organs when feasible. Therefore the goal of the courts should lay in interpretation and not in intervention. However the exercise of Judicial restraint must not translate into judicial under reach. Judicial under reach happens when the courts step back or exercise restraint on matters they should resolve. The failure of the courts to pass an order on section 377 until Navtej Singh Johar v. Union of India, 2018^[12] was an example of such under reach.

In a parliamentary democracy like ours, as guaranteed by the preamble, the ultimate power lies with the citizens. It is the people who through their elected representatives seek formulation of laws and governance. It would be a fraud on the constitution if this power is twisted and given to an ‘unelected temporary legislative chamber’ in the form of the Supreme Court. The judiciary should rather play the role of defining and enforcing boundaries of functioning of other organs of the state. And this power of the Courts must be exercised with restraint and humility. Therefore it’ll only be fair to say that the judiciary should employ the sociologist school of jurisprudence in exceptional cases and must come back to the positivist school for its day to day functioning. This has been recognised by the court itself in numerous cases like Indian Drugs and pharmaceutical ltd v Workmen (2007)^[13] The court said “The Supreme Court cannot give to itself the power of the executive and legislature. There is a broad separation of powers in the constitution and the judiciary too must know it’s limits. “

If the activism of courts further continues beyond what’s suitable for a healthy democracy, it might in the future lead to activism by the authorities . That would mean malfunctioning of the governing system and a failure on our part to stick to the ideas and morality which the constitution lays for us. Therefore the greater good lies in not letting the Supreme Court turn excessively supreme. And the extent of them exercising their powers over and above what’s mandated must be seen on a case to case basis.

Coming back to the words of AK Ayyar from the constituent assembly debates, the independence of the judiciary should not be tampered with. However this very independence given to the courts must also not let it assume to itself powers of the other organs. The courts not only have to keep up the faith of citizens in them, but also assure the legislature and executive of amicable governance.

*****

^[2]  Constituent Assembly Debates, VOLUME .XI Page number 837

^[3] Marbury v Madison, 5 U.S 137.

^[4] AIR 1950 SC 27

^[5] The common Law ( 1881) – Justice Oliver Holmes

^[6] Austinian criticism of Natural school of law.

^[7] Federalist No.78 – Alexander Hamilton, 1788

^[8] Kesavananda Bharati v State of kerela 4 SCC 225, AIR 1973 SC 1461

^[9] Writ petition (civil) No. 728 of 2015

^[10] Vishakha and others v state of Rajasthan, 13 Aug 1997.

^[11] Environment Pollution Control Authority ( now dis functional after 22 years)

^[12] W.P. (Crl.) No. 76 of 2016 D.No.14961/2016

^[13]  I SCC 408.

*****