Introduction
Judicial activism is, essentially, a tool with which the judiciary transgresses its conventional and arguably restrictive function of being the mere spokesperson of pre-existing laws. On the one hand, the cardinal legislative function of law and policy making reflects their duty towards the people and on the other, being the guardian of the Constitution it would be inaccurate to reduce the role of the judiciary to a passive one. John Hart Ely was one of the earliest proponents of judicial review with his introduction of the concept of responsive judicial review. He defined the system of separation of powers as not a rigid one in which limited judicial review would be an encroachment but rather, as would expand on the idea of demarcated responsibilities of the organs through mechanisms like procedural review.
Judicial activism could be indirect or direct: the former is exercised through the presumption of constitutionality of laws by the acknowledgement that the legislature was best suited for meeting the public’s needs, and the latter would question whether constitutionality was factored.
Judicial legislation is the law-making process that courts engage in when there exists statutory ambiguity or a legislative vacuum- which had led to the Vishakha guidelines or the interpretation of laws to align it with changing societal needs. It is most commonly done by setting precedents in cases where a legislation or provision is insufficient or absent for adequate redressal. It could be authoritative, in which case, courts are bound to follow what has already been decided or could be persuasive in nature.
Procedural Judicial Review and the Issue Of Money Bills
Despite being criticized for its facilitation of procedural delay, bicameralism as a system guards against the tyrannical nature of a majority-ruled system of government. The Lower House of the Parliament naturally takes on a more active role when it comes to legislation as it is essentially by the people and for the people. This is why the more centralising tendency of our idea of federalism gives expression to public opinion. However, as important as majority support is, a purely unicameral arrangement would be based on the assumption that decisions made on a majoritarian basis are infallible and could never be unjust or act as a way to drown out other sections. Rousseau had called the process of voting a means of ‘cancelling out individual deviations’ and while that may be true, there is a need for an alternative mechanism that could act as a deliberative authority rather than the primary law-making one.
A constitutional provision that does, however, bypass this arrangement is that of the passing of money bills. Article 110 defines a money bill and its provisions while Article 109 states that it can only be introduced in the lower house and the bill will be deemed to have been passed when the Speaker provides the certificate of confirmation and finally the President’s assent. The Upper House’s recommendations might or might not be accepted.
However, this often raises concerns about the potential minimization of the role of Upper House in the law- making process. The Aadhar Act of 2016 was passed as a money bill whose eligibility was then contested as it was only Section 7 of the Act that explicitly referred to the Consolidated Fund of India. The majority upheld the validity of this Act as a money bill on the test of “substantial nexus”, that is, its adherence to the requirements of a money bill in Article 110 on just a substantial basis. Considering that the speaker’s decision on the merits of an Act as a money bill is to be considered final, it also brings to light the aspect of procedural review by the judiciary.
Article 122(1) of the Constitution restricts the judicial review of a parliamentary procedure on the grounds of irregularity. In Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha & Ors., it was held that a procedure could only be questioned on the ground of substantial illegality and the latter would include the violation of constitutional provisions. However, the restriction of judicial review on other legislations would give way to an encroachment on the significance of the upper house as well as allow the Speaker’s decision to go unchecked.
John Hart Ely had highlighted the dangers of emphasizing on the validity of procedures over substantive legitimacy particularly with respect to the US Constitution. According to him, there were two situations in which judicial review would be valid, if not necessary: suppression of voices or votes, and disadvantaging any minority. Putting the former category in the context of the money bills case, if a bill that did not fulfil the criteria of a money bill is designated as such, it could be considered a suppression of the upper house’s voice- whose significance in the legislative process has been established. This would call for the need for judicial review. Ely also perceived a dysfunctional political process to have been caused by an insufficient opportunity for deliberation of a procedure or law which only underscores the importance of the Rajya Sabha and that of a mechanism which could check ‘final decisions’ if it substantially deviated from the original intent of the provision.
Validity Of Judge Made Law: Interpretation of the Special Marriage Act, 1954
Judicial activism primarily works on two tracks: judicial interpretation and judicial legislation, the latter of which seeks a greater amount of restraint, being more prone to encroachment on the system of separation of powers. Could the idea of judicial activism or judicial review be significantly different from that of judicial legislation when by honouring legislative intent or in certain cases adopting non interpretivism– going beyond the vision of constitution makers, courts deliberately or otherwise, make law?
But on what grounds can courts judge the constitutionality of a legislation? Is it purely on the basis of legislative intent and principles of natural justice or are both subject to contextualisation of facts based on the prevalent standards of morality, justice and fairness? Answering these questions would further stress on the importance of sound and balanced judicial activism.
Originalism is a method of constitutional interpretation based on the original legislative intent behind a constitutional provision or statute, as opposed to textualism that ventures to take provisions in its literal meaning. On the one hand, it provides room for courts to judge the validity of a law and whether it adheres to intended ramifications of the provision, as was the basis of HR Khanna’s dissenting opinion in the ADM Jabalpur case. On the other hand, it acts as a guise for conservative laws. Moreover, while the definition of originalism is seemingly simple enough, it does not provide ways to dissect the intent behind a particular law nor does it answer the question of whether or not a provision enacted decades ago allows for a liberal interpretation for it to be applicable in current times. In the case of Supriyo v. Union of India, the scope of the Special Marriage Act was discussed, with the Union arguing that it pertained specifically to heterosexual relationships and the petitioners arguing that it could be liberally interpreted to include queer people and same- sex marriages. The Union had argued that this Act intended to grant legal regulation to solely heterosexual individuals irrespective of their caste and religion, reiterating that while the right to choose a partner of choice was a fundamental right, its legal recognition was not. In an argument relying on the intent behind enforcing the Special Marriage Act, the petitioners put forth that it was enacted as an alternative to the prevailing religious considerations surrounding marriage, so using it to exclude same sex marriage on the ground that it did not subscribe to the established definition of marriage was contrary to its legislative intent. This is substantiated by the fact that the statement of object and reasons in the act specifies that ‘it can be taken advantage of by any person in India and by all Indian nationals in foreign countries’.
If judicial activism is seen as the capacity of courts to factor in the broader societal implications without being restricted by the literal textual understanding of law, in this case the court did exercise this power. As far as the right to marry is concerned, it acknowledged that it was not an expressly laid down fundamental right but highlighted that marriage could not be limited by a universally accepted blueprint as opposed to something that individuals are free to define on the basis of their preferences and needs. It broadened the scope of Article 19(1)(e)- which lays down the right of an individual to settle in any part of India by defining the word ‘settle’ as the freedom of people to create a place with a partner of their choosing.
However, it refrained from striking down the Special Marriage Act on the grounds of its exclusion of same sex marriages and consequent unconstitutionality when it was brought into effect to provide autonomy to individuals to marry a partner of their choice irrespective of their caste or religion. It could not read down the provisions of this act to include gender neutral terms as that would amount to judicial legislation. And this was held while also putting forth that the act could not be deemed indiscriminatory on the grounds of its object which was quite progressive in nature, but rather, its effects should be given more weightage.
Regardless, the court effectively drew the line between a liberal approach to a given case and an overreach of their capacity. If judicial law-making is seen as a creative interpretation of predetermined texts to give effect to constitutional principles, judges do indeed make law. But judicial legislation, in its literal sense, is an encroachment on what makes the legislative machinery the official law-making organ- its accountability to the public at large and hence, should be exercised with caution.
Judicial Understanding of Welfarism and Freebies
The trajectory of welfarism in a country that has to deal with the ramifications of colonialism would differ significantly from that in the West. At the time of Independence, there was not sufficient wealth to distribute equitably which is why the goal of a welfare state found its way to the non-enforceable Directive Principles of State Policy, rather than a mandated policy. But the ambiguous definition of ‘welfare’ makes it hard to draw a line between government policies aimed at redistributing wealth and those that attempt to lure in votes through seemingly altruistic measures.
This was the core issue in the case S. Subrahmaniam Balaji v. Government of Tamil Nadu. The argument put forth by the appellant was centred on how while providing assistance, public benefit should outweigh the cost and said cost should not lead to the creation of private assets but rather, remain limited to essential services only.
Amidst multiple definitions of welfare, the consistent idea that emerges is that it is limited to essential services which aims to bridge the gap between haves and have nots. It does not ideally include services that go beyond the definition of essentiality. The respondents argued that basic livelihood does not include mere sustenance and should include things that would ensure an enriching survival. But such services should be balanced with fiscal considerations that do not destabilize the fiscal system of the economy. In this case, the court had held that Section 123 of the Representation of People’s Act could not include such promises under corrupt practices and called for strict interpretation since it was a penal provision.
Judicial legislation primarily comes into play when there exists a legal vacuum or an absence of a legislation required for a specific case. However, to extend that to a restriction of political parties from including certain promises in their manifestos would be an electoral encroachment. Policies only warrant judicial interference when it substantially contravenes a fundamental right. If courts intervened on a basis of the public good or interest, it would dilute both the significance of the judiciary as well as that of the legislature.
Conclusion
Judicial activism can take multiple forms: procedural review, interpretation of provisions as a means to judge its constitutionality and sometimes an interpretation substantive enough to constitute ‘law’. It could be in the form of a review of the Speaker’s ‘final’ decision if it constituted illegality of procedure as well as framing guidelines for independent bodies like the Election Commission to help voters make informed choices and not be induced through fiscally irresponsible measures. But even while reading down provisions of a statute, it cannot do so merely in the context of a singular case but take into account the intent and effect of the law as a whole- which is why caution is exercised before setting precedents that acts as an important source of law. As was seen in the case of the Special Marriage Act, 1954, while the inclusion of same-sex marriages was progressive in light of the dynamic nature of marriage as an institution, declaring it unconstitutional would have eliminated the altruistic intent behind this Act altogether. Even though judicial action has led to laws like the Vishakha guidelines or even a broader scope of fundamental rights like Article 21, it should not act as a substitute for the legislature since the latter holds direct accountability to the public.
The Author is a first-year student of Christ (Deemed to be) University, Bengaluru.
This Article is the Runner-Up in the 2nd NLUO-CLS Essay Writing Competition, 2024.
Constitutional Law Society 
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