EXAMINING THE IMPACT OF THE NATIONAL JUDICIAL

APPOINTMENT COMMISSION (NJAC) ON JUDICIAL ACTIVISM

AND THE BALANCE BETWEEN INDEPENDENCE AND OVERSIGHT

Submitted by
VENU GOPAL U
(190401427076)
X Semester
Batch 2019-24

Under Supervision of
Prof. PACHALI RAJKHOWA

Alliance School of Law

Alliance University, Bangalore

1
ABSTRACT

This study explores India's controversial National Judicial Appointments Commission

(NJAC). It examines how it has affected two important facets of the legal system: the
harmony between judicial independence and executive control and judicial activism. The
research investigates how the NJAC has affected the judiciary's capacity to protect
constitutional rights, function as a check on other parts of government, and the general
makeup and decision-making of the courts through legal analysis, case studies, and data. The
study's ultimate goal is to evaluate whether the NJAC has successfully balanced these
conflicting influences, adding to the continuing discussion about judicial reform and India's
rule of law.

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 TABLE OF CONTENTS
1. INTRODUCTION
2. RESEARCH PROBLEM
3. LITERATURE REVIEW
4. RESEARCH QUESTIONS
5. OBJECTIVES OF THE PAPER
6. RESEARCH METHODOLOGY
7. JUDICIAL ACTIVISM AN INTEGRAL COMPONENT OF REVIEW PROCESS
8. HISTORY OF JUDICIAL ACTIVISM IN INDIA
9. CASES ON JUDICIAL ACTIVISM
10. ARE JUDGES OVERREACHING?
11. CONCLUSION AND SUGGESTIONS
12. BIBLIOGRAPHY

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INTRODUCTION

The National Judicial Appointments Commission (NJAC), which seeks to improve the
historically opaque system of judge appointments, is regarded as a turning moment in India's
legal history. A commission made up of non-judicial members replaced the judge-led
collegium, promising accountability and openness in response to long-standing worries about
partiality and a lack of public oversight. The NJAC's implementation, however, provoked
intense discussion and concerns about possible political control over selections and weakened
judicial independence.
In an effort to preserve judicial independence while allowing for more public inspection, this
proposed reform tread carefully. Legal objections emerged from worries about the
commission's internal decision-making procedures and non-judicial member selection, as
well as possible constitutional violations and judicial independence violations.

The fundamental concerns in this discussion are the functions of the judiciary in democracies.
While supporters said the NJAC would improve accountability and meritocracy, others
worried that it would politicise appointments. The future of the Indian legal system depends
on our ability to comprehend how the NJAC affects judicial activism, executive oversight,
and the delicate balance that exists between the two. This research paper explores the
potential and difficulties brought about by the NJAC. It provides a thorough grasp of its
consequences for the Indian judiciary by analysing pertinent case laws, academic debate, and
constitutional principles.

RESEARCH PROBLEM

The National Judicial Appointment Commission (NJAC) has provoked controversial

discussions in India about how it would affect judicial activism and how to strike a balance
between judicial independence and executive control. This study problem aims to explore
how the NJAC's formation has impacted the autonomy of the judiciary, changed the
conventional power dynamics between the judiciary and the government in the appointment
of judges, and influenced judicial activism. Furthermore, the study intends to investigate the

4
perceived advantages and disadvantages of the NJAC about fostering openness and
responsibility in the judicial nomination procedure, examine legal obstacles and
constitutional interpretations influencing its execution, and evaluate its consequences for the
inclusivity and diversity of the judiciary. By carefully analysing these problems, this study
seeks to contribute to a nuanced understanding of the NJAC's impact on judicial governance
and democratic principles in India.

LITERATURE REVIEW

 Anant, T. C. A., and Jaivir Singh. “An Economic Analysis of Judicial

Activism.” Economic and Political Weekly 37, no. 43 (2002): 4433–39.

The author discusses the instruments that will be utilised to conduct the research in the first
section of this study. The authors utilise the concept of "transaction costs" and the principle
of "separation of powers" to define advocacy. Based on the description, the authors conduct
an intuitive economic analysis of court action in the second section. The outcomes are not
entirely consistent. According to them, there are advantages to "interpretational
administrative activism," but court activism that obstructs legislative or executive decision-
making on the basis of privilege frequently causes more harm than good.

 Rachna Singh, Iqbal Ali Khan. “Judicial Activism and its Impact on
the Administration of Justice in India with Reference to Separation
of Power”. – 2016

This article tries to explain what the role of the court is in the modern world and find answers
to some important problems. In this ongoing, complicated process of judging, the judge has
to take into account the social and economic effects, which is in line with the idea of law. If
the judiciary's imagination and activity don't sometimes cross the thin, invisible line between
the different branches of government and take over the jobs of the lawmakers and the
executive branch.

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  Singh, Rekha Kumari R Davda, C R. “An analytical and critical
study on judicial activism vis vis judicial overreach with respect to
legislative function of the Indian parliament”. – Jan 2015.

This article is an analytical and critical study of judicial activism and judicial overreach in
relation to the legislative function of the Indian Parliament. The main issue in research is the
development of judicial activism in India and the relationship between the legislature and the
courts since the Constitution was written. The different things that happened during the
different decades of the republic and how those things changed the country.

 Senior attorney and Supreme Court lawyer Vijay Hansaria claimed that the judges
have taken over the job of "purely executive" in the Constitution's appointment
system. Hansaria also believed that a body representing all state departments ought to
be in charge of choosing judges. "Let there be a discussion about this body's makeup
to ensure that no specific State organ goes too far," Hansaria stated.

 Union Law Minister Kiren Rijiju said there was a growing voice in favour of the
National Judicial Appointments Commission (NJAC) Act, “It (collegium system)
does not even justify the slightest intent with which the provision was made in the
Constitution,” the minister said in response to suggestions made by House members
that the NJAC should be brought back, with changes, if any”

 Prof. Dr. Nishtha Jaswal, Dr. Lakhwinder Singh. “Judicial Activism

in India.” Bharati Law Review, Jan. – March 2017.

This article also defines "judicial activism." How does court power come from the Indian
Constitution? How did the idea of "judicial activism" get started in the Indian government?
How much has the involvement of judges in politics changed the way India is run? The
Supreme Court of India and High Courts in India's constitutional authority, activism by the
judiciary, the move from locus standi to public interest litigation, judicial activism, and
fundamental rights theory are all discussed.

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  Jain M P, Indian Constitutional Law (reprint 7th edn, LexisNexis
2016)

M P Jain has expounded upon the diverse provisions of the upper judiciary in his book.
Specifically, Article 124 pertains to the appointment of judges to the Supreme Court, whereas
Article 217 deals with the appointment of judges to High Courts. While Articles 214 to 231
in Chapter V of Part VI under the caption "The High courts in the states" deal with the
constitution of the High Court, the jurisdiction, the appointment and conditions of a judge of
a High Court, his powers, rights, and service, etc., the fasciculus of Articles 124 to 147 in
Chapter IV of Part V under the caption "Union Judiciary" deals with the establishment and
constitution of the Supreme Court, the appointment of judges and their powers, rights,
jurisdiction and service conditions, M P Jain has expounded upon the diverse provisions of
the upper judiciary in his book. Specifically, Article 124 pertains to the appointment of
judges to the Supreme Court, whereas Article 217 deals with the appointment of judges to
High Courts. While Articles 214 to 231 in Chapter V of Part VI under the caption "The High
courts in the states" deal with the constitution of the High Court, the jurisdiction, the
appointment and conditions of a judge of a High Court, his powers, rights, and service, etc.,
the fasciculus of Articles 124 to 147 in Chapter IV of Part V under the caption "Union
Judiciary" deals with the establishment and constitution of the Supreme Court, the
appointment of judges and their powers, rights, jurisdiction and service conditions, etc.

RESEARCH QUESTIONS

1. How has the establishment of the National Judicial Appointment Commission (NJAC)
affected the level of judicial activism in India?
2. What changes has the NJAC brought to the traditional balance of power between the
judiciary and the executive in the appointment of judges?
3. How has the NJAC influenced the autonomy and independence of the judiciary in
India

RESEARCH OBJECTIVES

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 1. To assess the impact of the NJAC on the frequency and nature of judicial activism in
India.
2. To examine the changes in the dynamics of power between the judiciary and the
executive in the appointment of judges following the establishment of the NJAC.
3. To analyze the extent to which the NJAC has influenced the autonomy and
independence of the judiciary.

HYPOTHESIS

This research presumes that the NJAC, while aiming for transparency and accountability, has
likely weakened judicial autonomy and increased executive control over appointments. This
power shift might impact the judiciary's independent functioning and judicial activism. While
proponents tout its benefits, concerns exist about potential compromises to impartiality and
diversity due to political influence. Legal challenges and constitutional interpretations further
complicate the NJAC's implementation, demanding a nuanced analysis of its impact on
judicial governance and India's democratic principles.

RESEARCH METHODOLOGY

The author of the research paper has resorted to doctrinal method of research as the topic of
research relates to analysis of a prevalent law or legal issue. The facts and laws relevant to
this subject are acquired through various books and magazines. Researchers will primarily
rely on these laws, the arguments of various scholars, and their collective analysis to reach
conclusions. In addition, the other data collection sources will be differentiated articles in
newspapers and on the web on the subject.

SCOPE AND LIMITATION

It covers a wide range of topics about the establishment, operation, and outcomes of the
NJAC in the national justice system of India. It entails evaluating how the commission affects
judicial autonomy, shifts in the balance of power between the government and the judiciary,

8
judicial activism, accountability and transparency in the nomination process, legal challenges
and constitutional interpretations, diversity and inclusivity within the judiciary, and possibly
even a comparative study with comparable systems in other nations. The goal of this
thorough analysis is to shed light on how the NJAC may affect democratic ideals, judicial
governance, and the rule of law in India.

This research paper does not discuss in detail the contents of the various reports presented by
each and every analysis, reports, judgement, reviews and journals etc.

JUDICIAL ACTIVISM AN INTEGRAL COMPONENT OF THE

REVIEW PROCESS
Judicial review is available in most nations. It all began in England, when judges made sure
the government wasn't doing anything illegal by checking to see whether its acts were within
the law. The English courts have amassed considerable authority via the process of
interpretation. They've made it so that the executive branch must follow stricter standards of
natural justice, scrutinise the use of arbitrary authority, and comprehend precisely the
provisions that make the decisions of government authorities or administrative bodies final
and binding.
So, in England, the courts could review what the government did, but they couldn't look at
what Parliament did, since Parliament is the highest authority. Austin's theory of sovereignty
was the basis for Professor Dicey's theory of control by parliament, which was an English
version of Austin's theory of sovereignty. According to the idea of parliamentary power, the
role of the courts in England was not very important. But what was really going on was that
the courts were coming up with new ways to protect individual freedom and improve the rule
of law.
"Britain, on the other hand, brought the practise of court review of laws to its colonies, such
as India. Acts passed by the British parliament set the limits of the power of the colonial
governments to make laws. So, India has had court review of both laws and presidential acts
since the British ruled the country. Since the member acts didn't include a bill of rights, court
review was restricted. India's courts followed a strategy called "maximum judicial restraint." 1

1
Rachna Singh, Iqbal Ali Khan. “Judicial Activism and its Impact on the Administration of Justice in India with
Reference to Separation of Power”. – 2016. Accessed on 6th April 2023.

9
"When Britain was in charge of a country, the courts would only get involved with legislation
if it was clear that lawmakers had gone too far. They figured out what the constituent acts
meant in the same way that they figured out what the regular laws meant. The idea of
parliamentary authority shaped the way judges thought, and the courts rejected that they had
any power over policy or principles beyond what was clear from the words. The courts in
India were brought up in the British practise of political dominance. As a result, they rarely
questioned the legality of what the legislature did unless it went beyond its powers. This used
to happen less often."2
In the case “Empress v. Burah and Book Singh”3, the Calcutta High Court explained the
judicial review principle in the following way. Every government with a written Constitution
as the most important rule must believe that any Act of the legislature that goes against the
Constitution is invalid. If it's not valid, it can't force the courts to follow it, because that
would mean overturning what was set up in theory and making something that wasn't law
work as law. Article 13 of the Indian constitution says that judges have the power to review
laws.
Justice Patanjali Sastri, as he was at the time, said this about this part of judicial review:
"When judging such elusive factors and coming up with their own idea of what is appropriate
in all aspects of a given case, it is expected that the philosophy of society and scale of values
of the judges making the conclusion should play a crucial part, and the limit to their
intervention with legislative judgement in such cases can only be set."
Review by the courts was seen as crucial in Indian law for:
 Constitutional protection with a government system;
 Keeping the written Constitution holy by figuring out how to read it, and
 They have a special duty to protect the basic rights. So, "the question of judicial
review was taken up not only when drafting legal provisions, but also when drafting
the fundamental rights."

“The idea of judicial review as a way to protect rights and freedoms seems to have caught on
in other Commonwealth countries as well. In New Zealand, the courts look to what the
legislature meant if there is no way to interpret a law in a way that is consistent with the bill
of rights. In Canada, the courts can throw out a primary law if it goes against any of the rights
in the bill of rights, but Parliament can protect a law by saying that its provisions will still

2
Ibid
3
ILR 3 Cal 64 5(1949)

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apply even if a court rules otherwise. But history shows that it has been hard for the Canadian
Parliament to react in this way to court decisions.”4

SUPREME COURT ADVOCATES ON RECORD ASSOCIATION VS

UNION OF INDIA

The National Judicial Appointments Commission Act of 2014 and the

Constitution (Ninety-Ninth Amendment) Act of 2014 both contradict the
"Principles of Separation of Powers".

The Hon'ble 5 Bench heard the case after the petitioner filed multiple writ accusations on the
subject. Jagdish Singh Khehar, Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh
Kumar Goel make up its composition. The petitioner argued that as the case would involve
constitutional and National Judicial Appointment Commission (NJAC) Act interpretations, it
should be assigned to a bench of five judges in accordance with Article 145(3) 5 of the Indian
Constitution. NJAC ought not to be suggested prior to the petition's resolution. At first,
SCAORA, the petitioner, denied that Judge Khehar was involved in the matter 6. Because
Judge Khehar had "substantial constitutional control" over the judicial appointment process at
hand, they contended, he was unfair. Furthermore, Judge Khehar was a member of the current
"Collegium" system, which grants the senior judge of the Supreme Court final say in
appointments. Judge Chelameswar, however, denied this accusation, pointing out that if the
petitioner's logic had a legitimate goal, then all Supreme Court justices would be ineligible to
function as a quorum. Afterwards, the defendants petitioned the court to reconsider the
validity of the second and third judge cases, which were closely connected to the case. In the
initial section of his ruling, Judge Khehar dismissed the motion before discussing the
advantages of the same opinion to the court.

4
id
5
The Constitution of India,1950, art. 224
6
Infra note 9

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 HISTORICAL PERSPECTIVE
As sometimes the case in the U.S. and U.K., ideological conflict based on real care for the
well-being of the community emerged in “Amicus Curiae Issue 72 Winter 2007”. Between
the government (leadership and lawmakers) and the courts (judges). What happens when the
executive branch is conservative while the court system is progressive, or when the
legislative branch is advanced while the courts are conservative, this is called judicial
activism or judicial overreach. This is different from executive mistakes or executive
enthusiasm that goes beyond what the law allows.
The idea of judicial activism started to grow in India in the late 1960s or early 1970s, when
“Mrs. Indira Gandhi” was Prime Minister and Mohan Kumaramangalam, a famous lawyer
and legal expert, was the Union Minister. When the late “Mrs. Gandhi” tried to implement
her favourite slogan "garibi hatao" (get rid of poverty) by getting rid of the conservative
judges did not approve of her policies, which included abolishing the Privy Purses and
privileges accorded to the kings and royals of the princely provinces of pre-independent India
and nationalising the 14 main banks so that they could serve the needy more efficiently. 7 Like
President Franklin D. Roosevelt and the New Deal he introduced in the United States during
the period known as the Great Depression, "Mrs. Gandhi" faced opposition in India. Mrs.
Gandhi believed the Supreme Court of India pushed excessively far with its judgement in the
elimination of the Privy Purse and the restructuring of banks, and she responded strongly and
clearly. On the suggestion of “Mr. Kumaramangalam”, it is thought that the most
conservative and experienced judges of the Supreme Court who sided with the norm in the
aforementioned instances were not chosen to be the Chief Justice of India. The fourth-most-
senior judge, “Mr. A.N. Ray”, who disagreed, was chosen. This caused the three most senior
judges, Justices “Hegde”, “Shelat”, and “Grover”, to step down. This was the beginning of
the idea of judicial activism, which grew out of the fight between the government and the
courts.

7
“Singh, Rekha Kumari R Davda”, C R. “An analytical and critical study on judicial activism vis vis judicial
overreach with respect to legislative function of the Indian parliament”. – Jan 2015. Accessed on 15 th April
2023.

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 CASES LAWS
The following Supreme Court cases show how judicial activism has grown and changed in
India since it became independent:
In the Privy Purse case (“Madhav Rao Jivaji Rao Scindia v. Union of India, 1970”) 8, the
main inquiry was if the President did the right thing by removing the kings' recognition. In
this case, the court said that “Article 53” of the constitution says that the President must use
the executive power of the union "in line with the law." This power was meant to be used to
help the constitution, not to destroy it. An order that only "de-recognized" a boss without
making plans for his rule to continue, which was an important part of the constitution, was
therefore clearly illegal.
In “R.C. Cooper v. Union of India (1970)” 9, it was questioned whether Parliament had the
power to pass “the Banking Companies (Acquisition and Transfer of Undertakings) Act”,
also known as the “Bank Nationalisation Act”. The court threw out the Act mainly because it
was not sensible. It said that the fact that banks couldn't do "non-banking business" rendered
it economically impossible for them to proceed with any kind of enterprise.
In “Golaknath v. State of Punjab (1971)”10, the Supreme Court was deciding whether or not
the “17th Amendment to the Constitution” was legal. “potential overruling,” and ruled that
Parliament didn't have the power to change “Part III of the constitution” or take away or limit
any of the basic rights.
In the fundamental rights case (“Keshavananda Bharti v. State of Kerala, 1973”)11, the
Indian Supreme Court made a decision that can be seen as a major turning point in the
country's constitutional law. When figuring out how much power Article 368 of the
Constitution gives to change things, the court came up with the "basic structure" idea. By a
vote of 7 to 6, a panel of 13 judges decided that the Parliament had broad powers to change
the constitution, including all of its articles. However, as such, its strength was useless
indefinitely to change the "basic structure" or "basic framework" of the constitution.

8
1971 AIR 530
9
1970 AIR 564
10
1967 AIR 1643
11
AIR 1973 SC 1461

13
In “VC Shukla v. Delhi Admin (1980)”12, the court looked at whether or not the state had the
power to pass a law setting up special courts to handle crimes. Crimes committed by people
in high public office were found to be legal by judges. It also said that the court could throw
out an official act if there was evidence of bias or bad intentions. In this case, the court made
it clear that the "basic structure" idea would only apply to changes to the Constitution and not
to regular laws passed by Parliament or the state government.
In the “Bhagalpur Blinding case (Khatri (II) v. State of Bihar, 1980)” 13, it was decided that
Article 21 gave the poor and the needy the right to free legal help and the right to not be
treated unfairly. A lawyer is there to help. It was also decided that people have the right to be
brought before a judge within 24 hours of being arrested.
In “Fertiliser Corpn Kamgar Union v. Union of India (1981)” 14, the petitioners of a public
business fought against the sale of the company's plant and tools because it led to their being
laid off. The Supreme Court said that their rights under “Article 19(1)(g)” of the constitution
had not been breached by the sale that led to their layoff. They compared it to the loss of a
job because a post was eliminated. The bench ruled that the applicant lacked standing to bring
an Article 32 proceeding. The Supreme Court ruled that because the plaintiffs' basic rights
had not been infringed, it lacked jurisdiction under Article 32, despite the fact that Article 32
was part of the "basic structure" of the constitution, they could not file a petition under
Article 32, but they could file a petition under Article 226.
In “T.V. Vaitheeswaran v. State of TN (1981)” 15, the Supreme Court ruled that a two-year
delay in carrying out a death sentence would give the prisoner the right to have the death
sentence changed to a life term. But in the 1983 case “Sher Singh v. State of Punjab”16, this
view was thrown out. In the second case, the wait was because of what the prisoner did.
In the judges transfer case (“S.P. Gupta v. Union of India, 1983”)17, the court looked at the
meaning of the word "consultation" in Article 124(2) and decided that the executive is in
charge of appointing judges and is not bound by what the Chief Justice of India or other SC
judges say. In 1993, in the case “S C Advocates-on-Record Association v. Union of India”,
this view was overturned to make sure that judges have the final say in who gets to be a
judge.

12
1980 AIR 962
13
1981 SCC (1) 627
14
1981 AIR 344
15
1983 AIR 361
16
1983 AIR 465
17
AIR 1982 SC 149

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In the Asian Games case (“People's Union for Democratic Rights v. Union of India,
1982”)18, the court said that temporary employees of contractors were hired to build things
had the right to use the relevant labour and industrial laws and to use Article 32 of the
constitution to try to get them put into effect. The court told the government and the relevant
officials to make sure that the laws are followed by workers who are building things for the
upcoming Asian Games in Delhi.
In “A. R. Antulay v. R. S. Nayak (1984)” 19, the court decided that an MLA was not a "public
servant" according to the relevant clauses because he was not paid by the State Government.
In all of the above cases, the court has told the government to do what the constitution and
the laws say it has to do. This was and will always be a good thing, but if the court goes too
far and takes on the roles of the government and the lawmakers, it will go against the plan
and goals of the constitution.
When it comes to labour policy (such as minimum wages, working conditions, etc.) and
environmental and ecological issues, the behaviour of the courts can be seen as proactive.
However, when it comes to fiscal policy (such as politics, the inner workings of the
legislature, etc.), the behaviour of the courts can be seen as judicial overreach. The support of
these two parts of the constitution, which are supposed to work on their own, tends to get
weaker when there are a lot of interference.

ARE JUDGES OVERREACHING?

“The line between judicial activism and judicial overreach is a thin one…A takeover of the
functions of another organ may become a case of over-reach”. – “Dr. Manmohan Singh”
In other words, the former prime minister was on the verge of accusing the Supreme Court of
usurping executive or legislative authority via legal means. There are a number of well-
known cases where judges may have gone too far. The Prime Minister could have been
talking about the controversial monitoring group set up by the Supreme Court to keep an eye
on all the executive departments that were involved in closing shops and offices in Delhi. Or,
in the context of reserves for OBCs, he was probably calling attention to the Supreme Court's
decision to stop his government's bold plan to slowly add quotas to state institutions. But
then, when CJI spoke at the same event, he tried to downplay how important the differences
between the court and the political class are. ―When judicial review is used to decide if a
law is valid and to look over a decision made by the executive branch, it can cause friction
18
1982 AIR 1473
19
1988 AIR 1531

15
between the judge, the congressional branch, and the executive branch. This kind of stress is
normal and, in some ways, even good. So, in Justice Balakrishnan's opinion, the tension
between the organs is not something to worry about. Instead, it is a natural result of judicial
review, which gives the superior courts the power (borrowed from the US by our founding
fathers) to strike down any legislative or executive act that is found to be in conflict with the
Constitution. By saying that the strain is "natural" and "desirable," the CJI has, by
implication, denied that the courts have gone too far. As is so often the case, the truth is
somewhere in the middle. Take the two cases that Lok Sabha Speaker Somnath Chatterjee
gave at a Supreme Court Bar Association session on April 4, 2007.20
First, despite the by supporting his groundbreaking decision to remove MPs involved in the
cash-for-questions and MPLAD scams uproar caused by his failure to accept a notice from
the Supreme Court, Chatterjee admitted that the judges had done their job. But when it came
to the SC's interference in the Jharkhand legislative assembly, Chatterjee said, "There has
been an intrusion into the legislative arena."
Even though the SC wanted to stop the UPA from putting Shibu Soren in charge of a split
assembly, it was criticised for taking over legislative power and telling the chief secretary and
DGP to watch how the assembly worked. That was a clear case of the court going too far.
In the same way, the court hasn't done anything about the claimed misuse of public interest
lawsuits, which is another big reason why judges and politicians often get into fights. Former
PM underlined that PILs cannot be used to settle political or other scores during the same
news conference on April 8. To ensure that only genuine PILs with a judicially feasible cause
of action are pursued, we need norms and benchmarks for screening PILs.
In different parts of the Constitution, the Lakshman Rekha is made clear for both the
Legislature and the Judiciary to keep their freedom in how they do their jobs. Articles 121
and 211 say that the legislature can't talk about how a judge did his job, while Articles 122
and 212 say that the courts can't make decisions about how the legislature does its own
business. Articles 105(2) and 194(2) say that the courts can't get in the way of a legislator's
right to free speech or to vote. So, in theory, there are plenty of ways for each side to keep its
independence.
But any kind of action by the court or the government brings up a question worth a million
dollars: what happens when one side doesn't follow the Constitution's split of powers? The
20
Rachna Singh, Iqbal Ali Khan. “Judicial Activism and its Impact on the Administration of Justice in India
with Reference to Separation of Power”. – 2016

16
Constitution doesn't seem to say anything about this. Instead, it seems to leave it up to the
smart and responsible lawmakers and judges to make sure they stay within their limits. The
sad truth, though, is that both sides have broken these rather good-hearted goals of the
Constitution many times without being held accountable.
For example, when the Supreme Court and the Delhi government were at odds over changing
public cars from gas to CNG, the Chief Minister of Delhi, “Ms. Sheila Dikshit”, criticised the
Apex Court in the Legislative Assembly. After hearing about this in the news, the Supreme
Court asked the CM to explain. The CM just made a document in which he denied what the
media said, and that was the end of the story. In another case, a Janata Dal (S) MLA of the
Karnataka Assembly seriously questioned the honesty of judges who ruled against the State
Government in the Bangalore-Mysore Infrastructure Corridor project case. On July 19, 2006,
“Chief Justice Y.K. Sabharwal”, who was in charge of a bench made up of Justices “C.K.
Thakkar” and “P.K. Balasubramanian”, said, "We express our deepest anguish over such
statements made on the floor of the House."21
So, in a broad sense, the only way for different parts of the government to stick to the split of
powers is for them to be self-controlled and self-disciplined. There is no way to punish
people who don't follow these rules. Mechanisms like "contempt of court" and "breach of
privilege" aren't good at keeping the two groups apart and only come up when something
goes wrong.
Both the government and the lawmakers have accused the judiciary of "encroaching" on their
territory. In the Aravali Golf Club case, the Supreme Court said, for the first time ever, that
the court has made a mistake by taking over the powers of the government. It warned against
court overreach and said that if it kept happening, lawmakers intervention was made to snip
the wings of the judges.
If the court doesn't hold back and goes too far, lawmakers and other people will have
something to say about it. In the “Aravali Golf Club” case, a SC bench made up of Justices
“A.K. Mathur” and “Markandey Katju” said, "The politicians will then step in and limit the
power or even the independence of the judiciary." The bench also said that in order to keep
the freedom of the court, judges had to be careful and follow the Constitution's rules about
the split of powers between the three parts of government. "The trade-off for independence in
the Constitution is that judges must stay out of areas reserved for the other two branches
(executive and legislature)," said the bench. In a 22-page ruling, the Supreme Court (SC)
overturned a trial court's and the high court's decision on regularising some employees of a
21
Id

17
private golf course. On 15 of those pages, two judges went over judicial rules, which, in
general, say that judges are supposed to uphold the law, not break it.22
The SC gave examples of times when the judicial branch had stepped into the territory of the
government. These cases include admissions to nurseries in Delhi, the legality of
constructions and figuring out which buildings in Delhi need to be torn down, Overcharging
by auto rickshaws in Delhi, an increase in traffic accidents and penalties, the prevalence of
buses for public transportation, smog levels, free hospital beds on public land, excellent
emergency medical services and a state-of-the-art burns unit.
The remarks were made in a 22-page ruling, in which the Court threw out an order from the
Punjab and Haryana High Court that told the Tourism Corporation to hire tractor drivers and
do their jobs.
If the court doesn't show caution and goes too far, politicians and others will have to do
something about it. Then, the leaders will step in and limit or even take away the power of the
courts. So, the courts should stay in its place and realise that in a democracy, many problems
and disagreements are best solved outside of the courtroom. It said, "As the guardian of the
Constitution, the judiciary has the power to step in, but only in rare cases when the situation
forces them to do so in the interest of the nation."
The court said that the reason the executive or assembly are not doing their jobs well is often
given as a reason for the judiciary to step into their territory. Even if this is true, the same
thing could be said about the courts, because there are cases that have been in court for more
than 50 years. The court said that if they are not doing their jobs, the solution is not for the
courts to step in, because that would upset the careful balance of power that is written into the
constitution. We feel forced to say these things because judges keep trying to do executive or
legislative jobs when they don't have the authority to do so. We think this is clearly against
the Constitution. The bench said, "Judges can't go too far in the name of judicial activism and
try to do things that belong to another branch of government." The court gave many examples
of how the courts had stepped on other people's turf without good reason.
Also, a news article by CJI (Retd.) “P N Bhagwati”, who was the head of the Supreme Court,
said that he thinks judges don't need to get involved in things like nursery openings and make
laws. Laws can't be made by the courts. They have to make sure that the president is
following the law and that government policies aren't just made up on the spot, he said in a
22
Rachna Singh, Iqbal Ali Khan. “Judicial Activism and its Impact on the Administration of Justice in India
with Reference to Separation of Power”. – 2016

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phone interview from Mumbai. Reports say that the SC bench didn't like how courts were
getting involved in the day-to-day running of the government. For example, I don't see why
the Delhi High Court should get involved in the details of letting kids into nurseries, such as
interviewing the child, the policy for the neighbourhood, and other things. The previous chief
judge said that it is the job of school managers and the government to make rules. He said,
though, that he didn't want to give a thorough response because he hadn't read the SC's
comments on court overreach into the territory of the executive.

CONCLUSIONS AND SUGGESTIONS

An important effort to modernize the judicial appointment process and bring in more
accountability and openness was made in India with the founding of the National Judicial
Appointment Commission (NJAC). The NJAC did, however, also bring up grave concerns
about how it would affect judicial activism and the fine line that separates judicial
independence from government control.

There were numerous ways in which the NJAC might endanger judicial activism. The
judiciary's potential to act freely and fearlessly in defending people' rights could be
jeopardized by the politics of judicial appointments and the inexperience of its members. The
NJAC's brief existence until the Supreme Court overturned it had a stifling impact on judicial
activism and brought attention to the delicate balance that exists between the executive and
judicial branches of government.

NJAC might have put the judiciary's independence in jeopardy. The law seemed unclear at
first. The NJAC's provisions regarding the prime minister, chief minister, and "two eminent
persons" on the committee, along with other provisions, may portend future judicial
intervention and the legislature's future ability to amend the act's provisions through regular
law-making bodies. Because of their political stakes, these newcomers could compromise the
selection of judges. Executive branch authorities have the ability to jeopardize the judiciary.
The judiciary might end up turning into a dictatorship as a result.

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There are signs that the court is overstepping its bounds and getting more and more involved
in the work of the legislators and the executive branch. This upsets the delicate balance
between the country's institutions in a way that is dangerous. We can't let the courts run the
country, because then other parts of our government won't be able to make choices with
confidence and will lose their purpose. Even though judicial review is a valid job for the
courts, there has to be a limit or border. As with all institutions in a society, the judiciary
should be answerable to the people and know its own boundaries. It shouldn't turn into a
super-Parliament that makes rules and a super-Executive that tries to carry them out. A
complete and inclusive strategy that focuses on improving the facilities of the justice system
and lowering lack of discipline can help improve the speed and quality of the main justice
system.
Only by looking at the jobs that the Constitution gives to each part can a thin line be made
between when the courts should step in and when they shouldn't. In unclear situations, a legal
question at the heart of the conflict decides whether or not the court needs to get involved.
So, the court has nothing to do with purely political or policy questions that don't involve a
core law problem. In cases of government delay or institutional failure, the solution is for a
higher court to be able to issue a writ of mandamus or other appropriate direction to the
public body in question, telling it to do what the law says it has to do. But there is a clear
difference between telling a public body to do something and the court doing the same thing
on its own. The judge has the right to step in with the former, but not with the latter.

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 BIBLIOGRAPHY
JOURNALS AND ARTICLES:
1. Semwal, M. M., and Sunil Khosla. “JUDICIAL ACTIVISM.” The Indian Journal of
Political Science 69, no. 1 (2008): 113–26.
Accessed on 6th April 2023.
2. Anant, T. C. A., and Jaivir Singh. “An Economic Analysis of Judicial Activism.”
Economic and Political Weekly 37, no. 43 (2002): 4433–39.
Accessed on 16th April 2023.
3. Prof. Dr. Nishtha Jaswal, Dr. Lakhwinder Singh. “Judicial Activism in India.” Bharati
Law Review, Jan. – March 2017.
Accessed on 13th April 2023.
4. Singh, Rekha Kumari R Davda, C R. “An analytical and critical study on judicial
activism vis vis judicial overreach with respect to legislative function of the Indian
parliament”. – Jan 2015.
Accessed on 7th May 2023.
5. Rachna Singh, Iqbal Ali Khan. “Judicial Activism and its Impact on the
Administration of Justice in India with Reference to Separation of Power”. – 2016
Accessed on 10th May 2023.

CASE LAWS:
1. Madhav Rao Jivaji Rao Scindia v. Union of India, 1970
2. R.C. Cooper v. Union of India (1970)
3. Golaknath v. State of Punjab (1971)
4. Keshavananda Bharti v. State of Kerala, (1973)
5. VC Shukla v. Delhi Admin (1980)
6. Bhagalpur Blinding case (Khatri (II) v. State of Bihar, 1980)
7. Fertiliser Corpn Kamgar Union v. Union of India (1981)
8. T.V. Vaitheeswaran v. State of TN (1981)
9. S.P. Gupta v. Union of India, (1983)
10. S C Advocates-on-Record Association v. Union of India

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 11. People's Union for Democratic Rights v. Union of India, (1982)
12. A. R. Antulay v. R. S. Nayak (1984)

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