I. HISTORICAL AND THEORETICAL BACKGROUND Judicial activism has become a subject of controversy in India. 1 Recent and past attempts to hinder the power of the courts, as well as access to the courts, included indirect methods of disciplining the judiciary, such as supersession of the judges2 and transfers of inconvenient judges. 3 Critics of judicial activism say that the courts usurp functions allotted to the other organs of government. On the other hand, defenders of judicial activism assert that the courts merely perform their legitimate function. According to Mr.
Justice A. H. Ahmadi, the former Chief Justice of India, judicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern. 4 Courts cannot interpret a statute, much less a constitution, in a mechanistic manner. In the case of a statute, a court must determine the actual intent of the authors. In the case of a constitution, a court People’s understanding of judicial activism depends on their conception of the proper role of a constitutional court in a democracy.
Those who conceive the role of a constitutional court narrowly, as restricted to mere application of the pre-existing legal rules to the given situation, tend to equate even a liberal or dynamic interpretation of a statute with activism. Those who conceive a wider role for a constitutional court, expecting it to both provide meaning to various open textured expressions in a written constitution and apply new meaning as required by the changing times, usually consider judicial activism not as an aberration, but as a normal judicial function.
C. Judicial Review in India Unlike the United States Constitution, the Indian Constitution expressly provides for judicial review in Article 13, clause (1), that says that all laws that were in force in the territory of India immediately before the adoption of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void.
Clause (2) of that article further says that the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void. The Constitution also divides the legislative power between the centre and the states and forbids either of them to encroach upon the power of the other.
The courts decide whether a legislature or an executive has acted in excess of its powers or in contradiction to any of the constitutional restrictions on its power. Some members of the Constituent Assembly criticized the B. R. Ambedkar, defended the provisions of judicial review as being review, in particular the writ jurisdiction that gave quick relief against the abridgment of fundamental rights, constituted the heart of the Constitution; the very soul of it. 32 The National Movement for Independence favored a onstitutional bill of rights that would act as a bulwark against state authoritarianism and assuage the fears of the religious minorities. The Nehru Committee, which gave its report on Fundamental Rights in 1928, strongly recommended that the future constitution of India contain a declaration of fundamental rights. 33 The British government, however, rejected the Indian demand and did not incorporate a declaration of fundamental rights in the Government of India Act of 1935.
The British Simon Commission rejected the proposal for a declaration of fundamental rights based on the traditional British distrust of such declarations observing: We are aware that such provisions have been inserted in many constitutions, notably in those of the European States formed after the War. Experience however has not shown them to be of any great practical value. Abstract declarations are useless, unless there exist the will and the means to make them effective.