Stabilizing Article 142 with Judicial Activism and Judicial Restraint

Introduction:

Article 142 of the Indian Constitution has given a predominant role to the Supreme Court of India for passing any decree to do complete justice. As mentioned in Article 142 that the Supreme Court has every power to make any order for the purpose of securing the attendance of any person, is in itself enough to say that the Supreme Court is omnipotent in deciding matters with respect to the public interest. When talking about Judicial Activism, it is an important aspect of Article 142. In Indian Constitution, the term ‘Judicial Activism’ is not mentioned anywhere, but it is the adopted proactive approach of the judges in alleviating the shortcomings of legislation and giving justice to the public at large. Judicial Activism is more liberal in approach. On the other hand, Judicial Restraint is nothing but the opposite concept of Judicial Activism. In following the approach of Judicial Restraint, judges only review the existing laws in making decisions and are more conservative in nature. This article tries to anatomize the role of Judicial Activism and Judicial Restraint in stabilizing the Article 142 of the constitution.

Judicial Activism

American historian Arthur M. Schlesinger Jr. has coined the term ‘Judicial Activism’[1]. ‘Activism’ in a sense is nothing, but when judges strike down the action of the government, overlook the precedents, and put forth their own views. In India, the period of 1977-98 is known as the period of Judicial Activism because, during this period, Judiciary adopted a more creative and liberal approach towards decision making.[2] Reading Article 142 of the Indian Constitution in the light of Judicial Activism, it could be seen that in the past few decades, its implication by judges in giving judgments without adhering to the precedents and legislative policy in providing justice. In the initial years, the judiciary followed the conservative approach with respect to Article 142, but with time it started following the doctrine of Judicial Activism.

Role of Judicial Activism with Reference to Cases

Public Interest Litigation (PIL) has made Judicial Activism possible. Initially, the role of PIL is only limited to lessening the shortcomings of legislative policy but with time, public expectation went high to improve the administrative block by depending more on the judiciary to redress their problems, and the court also, on the other hand, started talking liberal approach in mitigating the situation in hand with the unlimited power of Article 142.

Exemplary Cases

1. Ayodhya Verdict: This landmark Judgement is the recent one where the court exercised its extraordinary power in passing various orders which were not originally prayed. In the judgment, the court exercised the power under Article 142 to hand over the disputed land to a trust formed by the Central government. Bench emphasized ‘In exercise of the powers vested in this court under Article 142 of the Constitution, we direct that in the scheme to be framed by the Central government, appropriate representation may be given in the trust or body, to the Nirmohi Akhara in such manner as the central government deems fit’.[3]

2. Arjun Gopal v. Union of India: In 2017, the Supreme Court suspended the sale of firecrackers in the Delhi NCR region by invoking Article 142. However, it is interesting to note that the Hon’ble court was criticized by many journalists. Senior journalist, Shekhar Gupta found invoking Article 142 by the bench “troubling” and criticized by saying, it is for exceptional use and not the norm[4], as it took away the license of a number of fireworks.

3. Bhopal Gas Tragedy: The hon’ble court in 1989 by invoking Article 142 provided relief to thousands of people by awarding compensation of $470 million to victims[5]. By putting itself above the law, the hon’ble court passed this judgment.

Judicial Restraint

In this approach, the court does not go further in deciding cases and only stick to laws passed by the parliament, unless the case totally goes against the constitutional values. In providing justice, judges hesitate in striking down laws because of their conservative approach. Limitation by the constitution or the statute, on the action of the judiciary, is Judicial Restraint.

Role of Judicial Restraint with Reference to Cases

It has been seen in times that the court does not always take a liberal approach by encroaching the rules/laws but instead adhere to the statutes in deciding cases and respect the concept of separation of power. Many instances are there when the court denied justice while keeping in mind the role of two branches (Legislative and Executive) and they’re working, because that would be unfair for the other branches as they are the one to decide that specific problem.

1. ·State of Rajasthan v. Union of India: Court did not entertain the petition because it involved the Political question.[6]

2. S.R Bommai v. Union of India– In this judgment Article 356 was in question and the court did not entertain because of its political involvement. Ahmadi J. emphasized that ‘it was difficult to evolve judiciary manageable norms to scrutinize the political decision and if court do it then it would be entering the political thicket and questioning the political wisdom, which court must avoid’.[7]

3.  Almitra H. Patel v. Union of India: Petition was filed before the court regarding the issue that whether the court directs the municipal corporation on ‘how’ to clean Delhi, the court said that it could only direct the Municipal corporation to carry out the work according to the law.[8]

Conclusion

Considering the power of Article 142 of the constitution, the Supreme Court has all the power to decide matters in the public interest but exercising it blindly is nothing but a judicial intervention. Power of the Supreme Court under Article 142 is so hefty that if not restrained it will destroy the whole concept of separation of power. Judicial Activism and Judicial Restraint are the opposite sides of the same coin. Practicing both theories is balancing the Article 142. There is no doubt that the judiciary cannot intervene, but its intervention in extreme cases is plausible. Judiciary has no expertise or resources to solve the matters which are subject to legislative and executive. Disciplinary action by the judiciary is needed and legislation on the other hand needs to mitigate the shortcomings of the laws.

---

References:

[1] Kermit Roosevelt, Judicial Activism, BRITANNICA, https://www.britannica.com/topic/judicial-activism

[2] S. P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J. L. & POL’Y 029 (2001)

[3] Apoorva Mandhani, SC invoked Article 142 to order formation of trust for Ram Mandir. Here’s what it means, THE PRINT (Nov 9, 2019), https://theprint.in/judiciary/sc-invoked-article-142-to-order-formation-of-trust-for-ram-mandir-what-it-means/318294/#:~:text=Article%20142%20allows%20the%20Supreme,complete%20justice%E2%80%9D%20in%20any%20case.&text=In%20its%202017%20judgment%2C%20the,an%20%E2%80%9Cevasion%20of%20justice%E2%80%9D.

[4] Sucheta Dasgupta, Diwali Debate: Fire Over Crackers, INDIA LEGAL (Oct 14,2017), https://www.indialegallive.com/science-and-environment/are-you-with-or-against-the-scs-diwali-firecracker-ban

[5] Praveen Pandey, Article – 142 Constitution of India-Is it Sword of “complete justice”? LEXOLOGY (April 11,2020), https://www.lexology.com/library/detail.aspx?g=ba92810f-7711-42d8-b8ed-1288af033b75

[6] (1977) 3 SCC 592

[7] Abhishek Negi, Judicial Activism and Judicial Restraint, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html

[8] Id.