This article is written by Shivam Agrawal, a 3rd year law student from Hidayatullah National Law University, Raipur. He explains the need to restraint judiciary in Indian context.
While the Supreme Court of India has been aggressive in its activist approach over the recent years, the judiciary, as an organ of the state has many a time encroached into the domain of the legislative and the executive chambers. The shift of the judiciary from a positivist school to the sociological school has resulted in an unpredictable legal atmosphere over the country. On one hand, the judiciary has spoken in favor of its independence and has asked the other two organs of the state viz. legislature and executive to respect the doctrine of separation of powers, while on the other hand, it has itself been encroaching into the domain of legislative and executive chambers under a cloak of judicial activism. The author, through this article, tries to throw some light on this shift of judiciary from positivist to the sociological school of jurisprudence and on the unpredictability caused due to this shift.
Keywords: Judicial Activism, Judicial Restraint, Separation of powers, Independence of judiciary, Positivist school of jurisprudence, Sociological school of jurisprudence.
There is no doubt about the fact that over recent times, the Supreme Court of India is relying more on the sociological school of jurisprudence and not on the positivist school of jurisprudence. In essence, the Supreme Court has been resorting more to judicial activism rather than judicial restraint. This could be unjustified.
According to the positivist theory, law is to be distinguished from morality and religion. In the positivist school of jurisprudence, the law emanating from a competent legislature is treated as an actual law and the legislature is believed to be the actual law-making body. It holds that the process of law-making is not for the judges. And thus, this school supports the principle of judicial restraint and believes that the judges should not play an active part in the law-making process.
On the other hand, sociological jurisprudence shifts the center of gravity of the legal system from statutes to judicial legislations. This school promotes judge-made laws and allow the courts to lay down the laws as per its own subjective notions. In comparison with the jurists of other nineteenth-century schools, the sociological jurists seek to enable and to compel law-making, whether legislative or judicial or administrative, and also the development, interpretation, and application of legal precepts, to take more complete and intelligent account of the social facts upon which law must proceed and to which it is to be applied.
Positivist school is against this new construction because giving a free hand to each judge to declare the law as per his own notions would result in legal anarchy. This departure from the literal rule of construction is also against the well-established principle of separation of powers.
In India, the Supreme Court was never expected to perform the functions of the legislature. However, over the recent period of years, the Supreme Court of India is performing this role of the legislative chamber not in the exceptional circumstances but in its everyday functioning.
- The doctrine of Separation of Powers
The term ‘Separation of Power’ was coined by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, generally referred to as simply Montesquieu, who was a French judge, a man of letters, and political philosopher. In his publication, The Spirit of the Laws (1748), which is considered to be one of the greatest works in the history of political theory and jurisprudence, he laid down his model of the political authority of the state and it is divided into legislative, executive and judicial powers. He asserted that, for effectively promoting civil liberty, it is necessary for the three organs to function independently of each other.
The doctrine advocates the division of government responsibilities into its different branches so as to limit the functioning of any one branch over the domain of others. The intention behind the application of this doctrine is to prevent the concentration of power into one hand and to provide for checks and balances.
The doctrine of ‘Separation of Powers’ operates in India, the same way it does at both the national and state-level governments in the United States. The powers of law-making are vested in the legislature, while the executive performs the job of implementing the laws enacted by the legislature. The third organ i.e. judiciary is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it.
Contrary to the doctrine of separation of powers, the Supreme Court of India, because of its activist approach has been encroaching upon the domain of the legislative chamber of the state. It is not the legislature that has made laws for limiting the time for burning firecrackers on Diwali or creating the right to privacy, inter alia.
The author firmly believes that courts should be restrained and should follow positivist jurisprudence, which advocates judicial restraint, rather than sociological jurisprudence, which advocates judicial activism.
- Judicial Activism v/s Judicial Restraint
The author believes that the worst result of judicial activism is unpredictability. While the concept of judicial restraint advocates that the judiciary should restraint itself in its functioning and should not encroach upon the domains of legislature and executive, the concept of judicial activism, contrarily, advocates a different approach in which judiciary is expected to adopt an activist approach and render decisions keeping in mind the dynamic nature of society.
The doctrine of judicial restraint concerns the substance as well as the timing of judicial decisions. It is, of course, axiomatic that a judge is obligated to apply the law as he understands it to be rather than as he thinks it ought to be. I believe that every judge with whom I have served has conscientiously endeavored to perform that obligation. Judges often differ, however, not only with respect to the merits of particular issues but also with respect to the number or the scope of the issues that should be decided in a particular case. It is this latter aspect of the decisional process to which the doctrine of judicial restraint has special relevance.
- Inter-linking rivers
The author has begun his analysis from the point when the Supreme Court of India, on 27th February 2012, directed the union executive to implement the ‘inter-linking of rivers project’ aiming to transfer water, from surplus to water deficit areas in the country. The court, on the basis of a report of the National Council of Applied Economic Research (NCAER) and the recommendations of a Standing Committee of Parliament on water resources, issued directions for constituting a Committee to be called a `Special Committee for Inter-linking of Rivers’ for the furtherance of the project. The conclusions of the report by NCAER and the recommendations of the standing committee of the Parliament included various benefits of interlinking of river program such as additional benefits of irrigation & power, increase in growth rate of agriculture, growth of direct & indirect employment, improvement in the quality of life of people in rural areas and mitigation of floods & drought. The court recorded that the implementation of this project would save the people living in drought-prone zones from hunger and people living in flood-prone areas from the destruction caused by floods.
The court, through a detailed text, has provided for the constitution, organization and the functioning of the special committee. This committee has in fact been vested with the responsibility of making plans for the implementation, construction, execution, and completion of the project. The Central and the State Governments have also been directed to render all sorts of financial, administrative and executive help to the committee for the effective completion of this project.
However, a decision to implement the river interlinking project through a Special Committee which will take precedence over all other administrative bodies seems disturbing. The author believes that through this judgment, the apex court has encroached into the executive domain.
- Creation of a right to Privacy
The Supreme Court while considering the constitutional challenge to the Aadhaar card scheme of the Union government observed that there were allegations against the norms for and compilation of demographic biometric data by the government that it violates the right to privacy.
On 24th August, 2017 the Supreme Court, following its judgement through a one page order signed by all nine judges explicitly declared 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.
The court was of the opinion that the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features. Hence, the Court went on to interpret the constitution in a way suited to the current generation and after taking note of the fact that the time has evolved in the last seven decades and so has evolved the society and its needs, gave the right to privacy a fundamental status.
However, the author believes that such recognition of the right of privacy by the judiciary is an exercise in the nature of embarking on a constitutional function of that nature which is entrusted to Parliament. Here, by a judicial verdict, a right was created which in my submission was wrong, since according to the doctrine of separation of powers, only a competent legislative wing can create a right.
- Ordering time limit for bursting crackers
On October 23, 2018, in one of its orders, the Supreme Court directed that on Diwali days or on any other festivals like Gurpurab, etc., when fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. And on Christmas Eve and New Year eve, when such fireworks are supposed
to start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.
to start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.
In a writ petition filed on behalf of three infants, the Supreme Court admitted that there are a number of reasons which have contributed to poor air quality in Delhi and National Capital Region (for short, ‘NCR’). And at the same time, it was also emphasized that the pollution in the air increases during Diwali time because of indiscriminate use of firecrackers, the chemical composition whereof increases harmful particulate matters such as PM2.5 or PM10 at alarming level thereby bringing the situation of ‘emergency’.
The aforementioned order was passed by the Supreme Court after refusing to impose a complete ban on the sale of firecrackers ahead of Diwali in the wake of interests of those dependent on the manufacture and sale of firecrackers. In fact, the Supreme Court endeavored to strike a balance between the rights of the petitioners i.e. right to clean environment and right to health under Article 21 and right of the manufacturers and traders under Article 19(1) (g) of the Constitution.
Allowing the sale of ‘green crackers’ i.e. so-called environment-friendly firecrackers that followed permitted decibel (sound) limits and emission norms the court said that this should be done only through licensed traders. The court, in fact, banned the manufacture, sale, and use of joined firecrackers, such as series crackers or laris. A bench comprising Justices A.K. Sikri and Ashok Bhushan further sought to introduce the concept of bursting firecrackers as a community and asked the central and state governments to identify particular areas for this within one week so that the public at large can be informed about the designated places before Diwali.
Online platforms such as Flipkart and Amazon have also been directed not to sell fireworks online. If they are found to be doing so, they would be hauled up for contempt of court and may have to face monetary penalties. The court went on to put the responsibility on the union government, state governments, schools, and colleges to take up public awareness campaigns informing the public about the harmful effects of firecrackers.
On 30th October, 2018, the Supreme Court having regard to the averments made against its earlier order passed on 23rd October, 2018, insofar as State of Tamil Nadu, Union Territory of Pondicherry and the other Southern States are concerned, permitted them to change the timings during which firecrackers can be burnt from 08:00 p.m. to 10:00 p.m. to any other timings and which could be even staggered timings. However, it was made clear that the said time period cannot be more than two hours a day. It was made clear that this special exemption for the southern states was made in the wake of a tradition of celebrating Diwali during the early morning hours in these states.
- An unpredictable decision
In our country, every citizen is possessed with a few fundamental rights which are mentioned in Part III of our Constitution. One such right is free speech and expression.
Recently, the Supreme Court made a surprising and unpredictable decision when it ordered for the release of Priyanka Sharma form the custody of West Bengal Police.
This was in reference to an arrest made by the West Bengal Police of a Bhartiya Janata Party (BJP) Yuva Morcha leader, Ms Priyanka Sharma for sharing a meme on social media in which the face of the West Bengal Chief Minister Mamata Banerjee was photo-shopped and was superimposed on an image of actress Priyanka Chopra Jonas during her appearance at the Met Gala event.
After this photo-shopped picture of Mamata Banerjee was posted, one of the Trinamool Congress’ political leaders, Mr. Bivas Chandra Hazra filed a complaint against Ms. Priyanka Sharma for insulting the State’s Chief Minister through such post. Then after, Ms. Priyanka Sharma was arrested by the Police.
Now the point of analysis in this matter is that after the developments in this case, when the Supreme Court, on 14th May 2019, ordered for the release of Ms. Priyanka Sharma, the court explicitly noted that:
“The detenue, Priyanka Sharma, is directed to be immediately released on bail. The detenue shall, however, at the time of release, tender an apology in writing for putting up/sharing the pictures complained of on her Face Book Account.”
Now, the author believes that such a decision by the courts which compels a citizen to apologize for sharing a meme on social media which forms a part and parcel of his fundamental right guaranteed to him under Article 19 of the Constitution, is not something that we expect from the apex judicial institution of our country. This is not something for which the judiciary, as an organ of the State, exists.
However, it needs to be noted here that at a later point of time the Court modified its stance and said that a written apology by Ms. Priyanka Sharma is not a condition upon which her release is attached.
There are many more instances which show that recently the Supreme Court of India has been encroaching into the domain of other two organs of the state i.e. legislature and executive. Some examples include the Supreme Court order banning the sale of liquor within 500 meters of state and national highways, amending the SC/ST Act in its Subhash Kashinath judgment, laying down the ‘constitutional morality test’ in Sabarimala and LGBT cases, etc.
The author believes that the Supreme Court has increasingly adopted the sociological approach in an aggressive manner and has resorted to judicial activism more than it is required.
We have witnessed how the Supreme Court has declared the National Judicial Appointments Commission (NJAC) Act, as unconstitutional through its sociological approach. Despite the fact that Article 124 of our Constitution talks about the appointment of judges and there is no mention of the prevailing collegium system in the Constitution, the Supreme Court has declared the NJAC Act, an Act made by the Parliament of India to provide for the appointment and transfer processes of the judges in higher judiciary to be unconstitutional. The court has said that the functioning of the National Judicial Appointments Commission would violate the independence of the judiciary.
The author submits that this judicial activism requires some restraints, for it entailing unpredictability in the law barring its violation of the principle of separation of powers. It is submitted that courts should be restrained and follow positivist jurisprudence, which advocates judicial restraint, rather than sociological jurisprudence which allows judges to lay down the law according to their own subjective notions.
It is believed that of all the three organs of the state, it is only the judiciary that can define the limits of all the three organs. This great power must be therefore exercised with great care and self-restraint.
The author submits that the Supreme Court should limit its activist approach to only the most exceptional situations, and should stop encroaching into the domains of legislative and executive chambers in its every-day functioning.
 3rd Year BA LLB (Hons.), Hidayatullah National Law University, Raipur.
 Roscoe Pound. Jurisprudence (1959).
 John A. Fairlie, Separation of Powers, 21 Mich. L. Rev. 393, 396 (1922-1923)
 John Paul Stevens, Judicial Restraint, 22 San Diego L. Rev. 437, 446 (1985)
 In Re: Networking of Rivers, (2012) 4 SCC 51.
 Justice K S Puttaswamy (Retd.), 7 Anr. vs Union of India & Ors., (2017) 10 SCC 1.
 Arjun Gopal & Ors. V. Union of India & Ors., AIR 2018 SC 5731.
 Article 19(1) (a), The Constitution of India, 1950.
 Rajib Sharma vs, The State of West Bengal & Ors., W.P.(Crl.) No.-000146 / 2019.