Judicial Activism in India: Whether more Populist or less Legal?

-Swati Sharma, Rahul Rishi & M. S. Ananth

A non-partisan and an independent judiciary that functions within the constitutional boundaries, defined under the principle of separation of powers is accepted as the interpreter of the Constitution and when required, upholds the rule of law and the norms laid down in the Constitution. The Supreme Court of India (“SC”) has opined that it is the sentinel qui vie and that it operates as a bulwark against violations of fundamental and constitutional rights. In the context of modern democracy, the doctrine of separation of powers has a profound impact on how political institutions interact with civil organs and values of the societies. The importance of an independent judiciary has been debated since the Magna Carta in 1215 A.D. when regal authorities were envisaged to be separated from the will of the people.

On numerous occasions, judicial activism has managed to shape many ‘inter-related and integrationist rights’ which were earlier unheard of. For instance, in Maneka Gandhi case, the SC introduced a theory of ‘inter-relationship of rights’ and held that ‘substantive due process’ of law is guaranteed under Article 21 of the Constitution. The constitutional understanding of the concept of ‘State’ for the purposes of invoking fundamental rights have been time and again expanded by courts to include varied instrumentalities of the State. The Constitution has envisaged a system of polity and governance which is based on the doctrine of separation of powers. Although the Constitution does not expressly provide for this separation, it is reflected from the various provisions of the Constitution, which put certain forms of institutional restrictions on all the three organs of the State.  “Separation of powers” between various branches of the government forms the basic feature of the Constitution, however, “the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution.

There are instances where the courts find gaps in laws and may legislate in the ‘interstices’. This should not be interpreted as an act of legislation, but simply an act of judicial interpretation. In many instances, the courts have travelled beyond the rule of strict statutory interpretation, and have resorted to “purposive” interpretation of the laws to fill-in the gaps. By using the latter, the courts have tried to understand the objective of the statute in order to correct its deficiencies. However, such “purposive interpretation” should only be used to treat legislative or constitutional deficiencies and should not result in defeating the very purpose of such legislation.

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Cite as : Swati Sharma, Rahul Rishi & M. S. Ananth, Judicial Activism in India: Whether more Populist or less Legal,  1 Ind. J. of Const. & Admin. L. 11-23(2017).


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