JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER) THESIS SUBMITTED FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW BY RACHNA SINGH (ENROLMENT NO.: GC-7237) UNDER THE SUPERVISION OF Prof. (Dr.) IQBAL ALI KHAN CHAIRMAN & FORMER DEAN DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH-202002 (INDIA) 2016 JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER) ABSTRACT SUBMITTED FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW BY RACHNA SINGH (ENROLMENT NO.: GC-7237) UNDER THE SUPERVISION OF Prof. (Dr.) IQBAL ALI KHAN CHAIRMAN & FORMER DEAN DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH-202002 (INDIA) 2016 DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH, INDIA Prof. (Dr.) Iqbal Ali Khan Date………….. Chairman & Former Dean CERTIFICATE It gives me immense pleasure to certify that Ms Rachna Singh, Research Scholar bearing Admission No. : Ph.D.-L-574-09 and Enrolment No.: GC-7237 has completed this Thesis entitled, “JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER)” for the award of the Ph.D. Degree, under my supervision. The present work is an original contribution in the field of Constitutional Law. Prof. (Dr.) Iqbal Ali Khan ACKNOWLEDGEMENTS I bow in reverence to the Almighty God whose benign benediction gave me the required zeal for the completion of this work. Prof. (Dr.) Iqbal Ali Khan, Chairman & Former Dean, Department of Law, my supervisor, is one of those rare teachers who are paragons of knowledge and a source of strength & inspiration to their students. I would like to express my sincere gratitude, reverence and utmost regards for his illuminating, scholarly guidance and creative supervision of this work. He has been a real source of strength, inspiration and confidence to me. I would not miss this opportunity of thanking Prof. (Dr.) Javed Talib, Dean, Faculty of Law, Prof. (Dr.) Saleem Akhtar, Prof. (Dr.) Mohammad Shabbir, Dr. Wasim Ali, Dr. Zaheeruddin, Dr. Badar Ahmad, Dr. Zubair A. Khan, Dr. Shakeel Samdani, Dr. Shakeel Ahmed, and Dr. Mohd. Ashraf, for their guidance. My sincere thanks are also due to Dr. Tabassum, Ms. Kusumavati, Ms. Talat Anjum, Ms. Deepti Sharma for their unremitting help, guidance and support. The unfathomable blessings, good wishes, prayer and love of my parents are the spiritual strength with which I have pursued this work. My beloved father Late Mr. Harmahendra Singh and my mother Mrs. Lalita Singh provided me the much needed support and encouragement at every step of my career; their contribution is immeasurable. Whatever I am today, is the fruit of their sincere efforts. I am also indebted to my husband, Mr. Gajendra Joshi and my brothers, Mr. Gagan Singh and Mr. Pawan Singh whose everlasting love and affection has provided me with enough mental and moral strength to accomplish this task successfully. My vocabulary fails to express the gratitude towards them for their co-operation, help, inspiration, valuable suggestions and constructive criticism from time to time. I am also thankful to my cherished friends, classmates and critics for all their help and continued encouragement. iv I am also thankful to Dr. Zafar Khan, Mr. Shareef, Mr. Zaheer, Mr. Azeem, Mr. Yasin, Mr. Israr, Mr. Mohammad, Mr. Ahmad, Mr. Israr-un-Nabi, Mr. Roshan Khayal, and Mr. Iqbal and the entire faculty staff for their assistance and help rendered to me. My acknowledgement would be incomplete if I fail to express my thanks to Mr. Dilip Chakraborty for helping me type my thesis. Lastly, I am grateful to all those who helped me directly or indirectly in completing this thesis. (Rachna Singh) v Dedicated to my beloved father late Shri Harmahendra Singh and my lovely mother Smt. Lalita Singh for their unconditional love, constant support and encouragement throughout my life……. Abstract ABSTRACT 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 laws. The above statement can be explained in a simplified manner as- under the Constitution of India, the three branches of the government, namely the Legislative, Executive and the Judiciary, have been assigned their own separate roles. It is when the Judiciary steps into the shoes of the Executive or the Legislature and embarks on the work of law-making rather than interpreting laws, it can be deemed to be judicial activism. Black’s Law Dictionary explains very well: “Judicial activism is judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of the appellate judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters.” The Constitution, by its very existence, was a social revolutionary statement. It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. The Constitution was to foster the achievement of many goals. The members of the Constituent Assembly brought to the framing of the judicial provisions of the Constitution an idealism equaled only by that shown towards the Fundamental Rights. Indeed, the Judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force. The Judiciary was to be an arm of the social revolution. But unfortunately, the Constitution of India has often been made a topic of conflict by its three organs. In 1977 the Janata party came to power with overwhelming support, defeating the Congress almost to extinction. The Janata party dismantled the constitutional amendments brought into law by the Congress party. The year 1980 brought Mrs. Gandhi back to power. Her victory at the polls was decisive, with a large majority in the Parliament. The Supreme Court had always been uncomfortable with Mrs. Gandhi’s governance; during the late sixties her economic 1 Abstract and political policies were struck down in the Bank Nationalization and Privy Purse cases; in the early seventies the Court was locked in the Kesavananda battle and again in her election cases; when the Court supported her emergency in the Shukla case it was execrated by public opinion. During 1985 there was a new government at the Centre, a new Chief Justice in the Supreme Court, and a new perception of the Indian economy. With surplus wheat in the granaries and a promise to eradicate corruption, the country was relaxed, and optimistic. A fresh youthful breeze blew across India in what was akin to an Indian version of the Kennedy era in America. During the period 1987-99 India saw twelve Chief Justices. K.N. Singh J was the Chief Justice for the shortest period of eighteen days, Pathak J and Ahmadi J for the longest, of a little over two years each. During the same period there were eight Prime Ministers. There was instability in the governance of the country. Political parties lost their credibility and capacity to rule. Bureaucracy became a powerful and significant lever of power. Corruption became rampant. The people suffered acutely as a consequence of the nexus between politicians and bureaucrats on the one hand and criminals on the other. The second part of the last decade witnessed a new significant phenomenon, momentous in its dimensions and disturbing in its impact, i.e. the persistent, continual exposure of sordid events in both the print and electronic media. During recent years it has become fashionable among some citizens to disparage the founders and their document. These individuals, disappointed by developments in the country since 1950, have called for changing the Constitution, explaining that it has not ‘worked.’ Such thinking is misguided. Constitutions do not ‘work,’ they are inert, dependent upon being ‘worked’ by citizens and elected and appointed leaders. 1.1 CHOICE OF THE TOPIC ‘The seat of Justice is the seat of God’, Mahavir Tyagi has famously told the constituent assembly but how far it is true, in the current scenario, is the need of examination. 2 Abstract There have been many loopholes and lacuna in our legal system. 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 tide. Undoubtedly, the Indian judiciary has played an important role in the development of the nation and probably that is the major reason for people’s faith in it. Thus, the ongoing debate on judicial activism has made it the topic of this research. As India takes its place on the international stage, it is only natural that legal systems of the world over will turn their attention to its highest court and want to draw on the development of constitutional jurisprudence by the Supreme Court of India over the last sixty years. That trend has already begun. The above facts have prompted the researcher to undertake the study of “Judicial activism and its impact on the administration of justice in India with reference to separation of power”. 1.2 OBJECTIVE OF THE STUDY In this study, it is proposed to examine the various facets of judicial activism. An attempt shall be made to analyze that how has judicial activism developed and how far has it succeeded in correcting the wrongs.