EVOLUTION OF JUDICIAL ACTIVISM IN INDIA. I Introduction

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1 EVOLUTION OF JUDICIAL ACTIVISM IN INDIA I Introduction THE CONSTITUTION of India has many special features that distinguish it from other constitutions of the world. It is the longest Constitution, it is comprehensive and detailed since it deals with the complex and diverse situation that prevailed (and still prevails) at the time of its writing and adoption after the British granted independence to India. It also establishes a federal parliamentary form of government in which the roles of executive, the legislature and the judiciary are clearly defined and delineated. The essence of parliamentary government is that it has a head of state who is also the constitutional head although the real executive powers are vested in the council of ministers with the prime minister at its head. The prime minister and the council of ministers take executive action on behalf of the head of state (the President in the case of India). The legislature consisting of the President, the central Parliament (the Lok Sabha and Rajya Sabha) and the state legislatures, form the second organ of India. The third organ is the judiciary, whose provisions are contained in chapters IV and VI of the Constitution. Unlike in England, the Parliament is not supreme in India - it is the Constitution, which is supreme. The Indian Parliament draws all its powers from the Constitution and in that sense it is not a sovereign body. Unlike some other countries, there is one unified judicial system with the Supreme Court as the highest or the apex court. The Supreme Court is an impartial and independent authority and has been mandated to decide disputes between the centre and the states or between the various states. As the guardian and interpreter of the Constitution it has had to consider the validity of constitutional law and various constitutional amendments passed by the Parliament. In addition, the Supreme Court is the guardian of the basic rights of its citizens. According to G. Austin 1, the Supreme Court has been called upon to safeguard civil and minority rights and play the role of 'guardian of the social revolution 1. It is the interpreter of the law of the land and the highest court of appeal in both civil and criminal matters. 1. Austin Granville, The Indian Constitution - Cornerstone of a Nation 169 (2000).

2 2003 i NOTES AND COMMENTS 203 An independent judiciary is essential for ensuring human rights and protection of democracy. According to S.C. Kashyap 2, noted constitutional expert, "In a representative democracy, administration of justice assumes special significance in view of the rights of individuals which need protection against executive or legislative interference. An independent and supreme judiciary is also an essential requisite of a federal polity when there is a constitutional division of powers between the federal government and governments of the constitutional units and a functional division of powers between the executive, legislature and the judiciary." Although the executive, the legislature and the judiciary are distinct organs with clearly defined functions, it frequently happens that there is an overlap between one and the other. The role of the judiciary has become very critical and prominent and there is a certain amount of disquiet that it is transgressing on others' territory and on occasions interfering with the functions of the executive. The Supreme Court has often, especially in the recent past, been accused of excessive judicial activism meaning thereby that it has been going beyond its mandated functions and encroaching on the functions of the executive. The author shall discuss several examples of these later. However, even though criticized, its decisions have been well received and implemented without demur, thereby establishing the prestige and the fair play of the Supreme Court. II Judicial activism In the beginning, the Supreme Court of India was technocratic in nature, but gradually began to acquire muscle and prestige through its liberal interpretation of the law. It started with judicial review in A.K. Gopalan v. Madras*, asserting that this power was inbuilt in the very nature of a written Constitution itself. According to article 13, the state shall make no law that takes away or abridges the fundamental rights. Making a reference to this article, the Supreme Court opined 4 : The inclusion of Article 13(1) and 13(2) in the Constitution appears to be a matter of abundant caution. Even in their absence, if any of the Fundamental Rights are infringed by any legislative enactment, the Court has always the power to declare the enactment to the extent that it transgresses the limits, invalid. In other words, the court took upon itself the responsibility of judicial interpretation of the Constitution and judicial review of legislative 2. S.C Kashyap, Our Constitution 205 (1999). 3. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, Ibid.

3 264 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 2 enactments. Judicial activism is an inherent feature of judicial review and arises as a result of several factors. As the polity becomes more complex and new challenges are thrown up, the judiciary has to take on a more proactive role to interpret the laws and in cases where laws do not exist (for example in the adoption of children by foreigners, cyber crimes etc.), the court has to broaden the scope of existing laws to decide on matters which come up before it for decisions. According to S.P. Sathe: s There are two models of judicial review. One is a technocratic model in which Judges act merely as technocrats and hold a law invalid if it is ultra vires the powers of the legislature. In the second model, a court interprets the provisions of a Constitution liberally and in the light of the spirit underlying it keeps the Constitution abreast of the times through dynamic interpretation. Judicial activism can be positive or negative. It is positive when it engages itself to make power relations between different sections of people more equitable. On the other hand, if it is status quoits and conservative, it is negative. Upendra Baxi 6 uses the terms 'reactionary' and 'progressive'. According to him, 'much of Nehruvian era activism on issues of land reform and right to property, and the pro-emergency activism typified in S.K. Shukla 1, manifests reactionary judicial activism. Progressive judicial activism commences with Golaknatlr* and Kesavananda 9 and culminates in a wholly different genre of social action activism.' In the words of Sathe 10, "Judicial activism acts to breach separation of powers, which in turn upsets transactional efficiency and raises social costs. If the executive or the legislature has become dysfunctional, rotten boroughs of obsolete executives and unrepresentative legislatures, the solution is not in expanding judicial enterprise but in restructuring the dysfunctional institutions." Ill Political implication of judicial activism The Supreme Court has evolved from a positivist outlook into an activist outlook over the last many years due to the complexity and the 5. S.P Sathe, Judicial Activism in India - Transgressing Borders and Enforcing Limits 5 (2002). 6. Upendra Baxi. 'Preface 1 in Judicial Activism in India - Transgressing Borders and Enforcing Limits xiii-xiv (2002), 1. A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC Golak Nath v. State of Punjab. 2 SCR (1967) Kesavananda Bharati v. State of Kerala, AIR 1973 SC Supra note 5 at 20 &21.

4 2003) NOTES AND COMMENTS 265 pluralization of the polity. The increased activism has been, by and large, welcomed by the society at large. However, it has had its political fallout. There have been cases where the judiciary has struck down executive action or various amendments to the Constitution. One of the most important and landmark decisions of the Supreme Court has been the Golaknath case where it struck down by a majority of six to five, the power to amend the Constitution by removing property from the list of fundamental rights. The decision was also based on what is called the 'argument of fear' which implies that 'if no brakes are applied, the engine of the amending power would soon overrun the Constitution. The brakes should be applied somewhere and the Bill of Rights was the place where the amending power should be stopped.' 11 However, in the Kesavananda Bharati case, the thirteen-judge bench overruled the decision of the Golaknath case, saying that it had been wrongly decided. But at the same time it held that article 368 of the Constitution did not permit the Parliament to enact any legislation, which destroyed the basic features or basic structure of the Constitution. The question of basic features of the Constitution also came up in the Minerva Mills case. 12 The mills nationalization was a property matter, but the case was argued by Nani Palkhiwala, the defense counsel in terms of Parliament's powers to amend the Constitution. Six months after the hearings ended, the Supreme Court passed the first orders in the Minerva Mills' case on 9 May Some of these rulings are summarized below: Section 4 of the 42 nd Amendment was beyond the amending power of Parliament since it damages the basic or essential features of the Constitution and destroys its basic structure by the total exclusion of challenge to laws to implement Directive Principles at the expense of Articles 14 and 19. It was also ruled that Section 55 was also beyond the amending power of Parliament, 'since it removes all limitations on the power of the Parliament to amend the Constitution and confers powers upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. Regarding section 3, Justice Bhagwati ruled in the same case, but in a separate judgment, that the amended article 31C to be constitutionally valid since it did not damage or destroy the basic structure and was within the amending power of Parliament. The amended article 31C widened the scope of the article so as to cover all the directive principles 11. Upendra Baxi,, The Indian Supreme Court and Politics 18-19f 1980 ). 12. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

5 266 JOURNAL OF THE INDIAN LA W INSTITUTE Vol. 45 : 2 enumerated in part IV of the Constitution. The justice felt that a 'law enacted to give effect to a Directive Principle was not invalid because it infringes a Fundamental Right'. This was so in view of the fact that 'rights are precious but they have absolutely no meaning for the poor, downtrodden and economically backward classes who constitute the bulk of the people'. In the Minerva Mills case, the issue that was in particular considered was 'whether the provisions of the 42 nd Amendment which deprived the Fundamental Rights of their supremacy, are ultra vires of the amending power of the Parliament?' Another argument that was stated was that article 31C that prohibited challenge to laws made under directive principles was constitutionally bad and improper because it made Parliament's amending power limitless including changing the basic features of the Constitution. N.Palkhivala, who appeared on behalf of the petitioner against the Government of India in this case, had termed the philosophy underlying article 31C as 'the very quintessence of authoritarianism'. The Minerva Mills case is significant because while maintaining the basic structure doctrine, it ensured that the Supreme Court was an essential foundation of India's constitutionalism. The question that arose after these cases was as to how an unelected body i.e. the court, could decide what the Constitution should contain and how could it overrule the decision of an elected Parliament which represented the will of the people at large? Part of the answer came in the Keshavananda Bharati's 13 ruling where Justices Hegde and Mukherjea gave the following argument: When a power to amend the Constitution is given to the people, its contents can be construed to be larger than when that power is given to a body constituted under that Constitution. Twothirds of the members of the two Houses of Parliament need not represent even the majority of the people in this country. Our electoral system is such that even a minority of voters can elect more than two-thirds of the members of either Houses of Parliament... that apart, our Constitution was framed on the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken to be the guiding factor then the guarantees given to the minorities may become valueless... Therefore, the contention on behalf of the Union and States that two-thirds of members in the two Houses of Parliament are always authorized to speak on behalf of the entire people of this country is 13. (1973) 4 SCC at 481

6 2003] NOTES AND COMMENTS 267 unacceptable. This argument questions the assumption that legislative majority represents the will of the people. In India, a party or a coalition of parties can secure a parliamentary majority and form the government even without securing a majority of votes. Such a coalition should not, according to the argument, be allowed to tamper with the basic features of the Constitution, which have been enshrined by the Constituent Assembly, after a marathon debate and discussion. The internal emergency imposed by Indira Gandhi in 1975, after she had been unseated by the Allahabad High Court for committing an electoral offence, helped in answering the above question in favour of the judiciary. Partly to offset this ruling and partly for retaining greater powers for the Parliament, the 39 th Constitution Amendment Bill was passed. This amendment was challenged in Indira Gandhi v. Raj Narain 14 on the grounds that it disturbed the basic structure of the Constitution. The Supreme Court struck down the amendment on the grounds that it was inconsistent with the basic features of the Constitution although Indira Gandhi's election was upheld on merits. This judgment was another reason for the court's activism to acquire legitimacy. Other cases that have underlined the importance of the basic structure of the Constitution as well as imposed restrictions on the presidential power to dismiss state governments are the State of Rajasthan v. Union of India 15 and the landmark S.R. Bommai v. Union of India 16 cases. In the former case, the Supreme Court upheld the dismissal under article 356 of the Constitution, of three state governments by the Janata government, which came to power in In the latter case, the Supreme Court has clarified the conditions in which state governments can be dismissed as well as laid down the procedure that proclamations issued by the President have to be approved by both the houses of the Parliament in two months time, failing which the dismissed governments can be reinstated. By this judgment, the court has put a stop to the frequent misuse of the article 356 in dismissing state governments. As Marwah 17 has indicated, this power had been misused by the central government in a large number of cases. Since the Supreme Court decision in the Bommai case, the governments at the centre have been very circumspect in recommending dismissal of any state government. Besides the judicial check under article 356, one can also perceive a few political checks that are 14. AIR SC AIR 1977 SC AIR 1994 SC Ajit Mozoomdar, "The Indian Federal State and its Future" in V.A. Pai Panandiker and Ashis Nandy, (Ed.), Contemporary India (1999).

7 268 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 45 : 2 attributable to the party system transformation. In fact, in October 1999 the union government recommended to the President, Shri K.R. Narayanan, to impose President's rule in BJP-ruled U.P. However, the President asked the government to reconsider its recommendation. As it turned out, the government did not press for its earlier recommendation to impose President's rule - it had been constrained by the above judgment. Similarly, when the Rabri Devi government in Bihar was dismissed in 1999 by the BJP-led central government, the Congress Party controlled Rajya Sabha refused to approve the presidential proclamation. The ministry had to be reinstated. An impasse occurred in the aftermath of the UP assembly results of February 2002, when no party or combination of parties secured an absolute majority in the state. The Governor of U.P. recommended invoking article 356 for bringing the state under President's rule while keeping the legislative assembly under suspended animation as ruled in the Bommai case. The President accepted the recommendation. However, the Bhartiya Janata Party (BJP) and the Bahujan Samaj Party (BSP) came to an understanding and submitted a letter to the Governor to support each other in the legislative assembly. The Governor of U.P. thereafter invited the BJP-BSP combination to form the ministry with the BSP leader Mayawati as the chief minister. The Bommai case, which was decided in 1994, has gone a long way to restore the autonomous operation of parliamentary system at the state level and change the understanding and practice of invoking article 356 of the Constitution. IV Post emergency judicial activism According to Rajeev Dhawan, 18 'the higher judiciary has come to play a pivotal role in asserting an independent status forcing other institutions of governance to take steps to do what they are supposed to be doing. The judiciary which was an institution of state during the colonial period interpreting the meaning of laws first changed its character during the Nehru years.' However, the greatest transformation has occurred during the 1980s, in the post-emergency phase, when the judiciary began the transition to an independent institution of governance. In vastly expanding its powers to encompass PIL, the Supreme Court provided social activists lawyers and journalists with recourse to the protection of the law against abuses of it by other institutions of governance. 18. Rajeev Dhawan, 'Judges and Indian Democracy' in Francine Frankel et al (Ed.), Transforming India - Social and Political Dynamics of Democracy 326(2000).

8 20031 NOTES AND COMMENTS 269 After the Congress government with Indira Gandhi as prime minister, was defeated in the 1977 elections, the nature of judicial activism seems to have undergone a manifest change. In the words of Sathe 19 : The Court took an opportunity to expand the rights of the people through liberal interpretation of the constitutional provisions regarding the right to equality and the right to personal liberty. The Indian Supreme Court departed from its earlier strategy of construing each article of the Constitution separately and started interpreting the bill of rights as a whole. It gave expansive meanings to the words 'life', personal liberty', and 'procedure established by law' contained in article 21 of the Constitution. By such expansive interpretation it recognized the rights of under trial prisoners, prison inmates, and children under juvenile delinquency acts and re-examined the validity of the provisions of the penal law sanctioning death sentence, and recognized the right to privacy, the right to a speedier trial, the right to an independent judiciary, and the right to efficient and honest governance. Post-emergency judicial activism was inspired by a philosophy of constitutional interpretation that looked at the Constitution not as a mere catalogue of rules but as statements of principles of constitutional governance... Article 21 has been broadly interpreted by the court not only in relation to Bill of Rights but also socio-economic rights such as right to adequate means of livelihood, right to primary education (Unnikrishnan case) in place of article 45, which is a directive principle dealing with the provision of free and compulsory education to children up to the age of 14 years. After so many years of discourse and struggle, after the judgment in Unnikrishnan case, the 86 th Constitution Amendment Act has been approved by the President in December 2002 making education a fundamental right for children of the age of six to fourteen years by introducing a new article 21 A. The existing article 45 has also been suitably modified to provide for early childhood care and education for all children until they complete the age of six years. Not only has the court broadened the scope of its activism, it has also ventured into unknown territory where no law existed. For example, in the case of adoption of children by foreigners or in laying down guidelines for the prevention of sexual harassment of working women, the court has not only been pro-activist, it has virtually created new laws and has become a quasi legislative body on the basis of article Supra note 5 at 12.

9 270 JOURNAL OF THE INDIAN LAW INSTITUTE jvol 45 : 2 of the Constitution. To what extent is the expanded role of the judiciary desirable? The court has responded to this criticism by acknowledging the desirability of not stepping into the shoes of the legislature, but has stated that its directions were only intended to provide temporary relief. Another territory/terrain into which the Supreme Court has entered is to pass judgment on President's actions. After its ruling in the Bommai case, it has virtually validated judicial review of President's action in invoking article 356 and dismissing state governments by imposing President's rule in them. Thus we see the enlarged and the empowered role of the judiciary in these cases. V Public interest litigation The Supreme Court has devised an instrument through which it has been able to consider issues especially non-traditional and unpopular ones pertaining to the poor, the unprivileged and the deprived who would otherwise not have a platform to seek redressal of their grievances. They now have direct access to the highest court of the land. This is the instrument of public interest litigation (PIL) or what Upendra Baxi calls as social action litigation (SAL). Many issues like those of bonded labour, conditions of prison inmates, education of the children of prostitutes etc., which have been considered by the Supreme Court through PIL. Environmental issues ranging from the air or noise pollution in metros, shifting of polluting industry from Delhi, the type of fuel to be used by commercial vehicles to the displacement of tribals from their natural habitats due to construction of big dams and power projects and their rehabilitation have also been brought to the Supreme Court for decision. Upendra Baxi 20 has delineated a comprehensive list of types of judicial activism and the human rights activists who have petitioned the court in the last about two decades. Although the rulings of the Supreme Court have generally been welcomed both by the concerned parties including the government, Justice Anand 21 has warned against excessive use of PIL for purposes other than for the benefit of weaker sections of society. According to him: Care has to be taken to see that the PIL essentially remains Public Interest Litigation and does not become Political Interest 20. Upendra Baxi, 'The Avatars of Indian Judicial Activism: Explorations in the Geographies of (In) Justice' in S.K. Verma and Kusum (Ed.), Fifty Years of the Supreme Court ~ Its Grasp and Reach (2000). 21. A.S Anand, "Judicial Review, Judicial Activism - Need for Caution" 42 JILI (2000).

10 2003J NOTES AND COMMENTS 271 Litigation or Personal Interest Litigation or Publicity Interest Litigation. If that happens PIL would lose its legitimacy and the credibility of Courts would suffer... PIL is a type of social litigation which is directed towards the welfare of the poor and the marginalized people and has brought the Supreme Court of India closer to the people of India. Not only has it thereby become a more powerful institution, it has also acquired legitimacy and prestige. Its decisions have been accepted by all. In the recent case where the sharing of Cauvery river waters has created much controversy and drama, the court's displeasure in the action of the Chief Minister of Karnataka led to his making an unconditional apology. Its rulings have been accepted by all, however powerful they may have been. The wide scope of the PIL is resented both by the bureaucracy as well as the politicians, because it exposes their actions or inactions to public scrutiny. In addition, the court has not been free from criticism, even though it has usually been muted, that it is encroaching into the domain of the executive. Reacting to the criticism that the Supreme Court is overarching itself and usurping the functions of the executive. Justice Anand has stated in the same article: Judicial activism in India encompasses an area of legislative vacuum in the field of human rights. Judicial activism reinforces the strength of democracy and reaffirms the faith of common man in the rule of law. While remaining activist, the judges must maintain a fine balance between activism and excessivism - in other words, they must not take on issues, which though pressing, are outside the domain of the judiciary. They must be activists only within the confines of the judiciary - the tradition may be expanded but it should remain within the confines of the judiciary. Otherwise the judges would forfeit their legitimacy and be accused of overstepping their limits and resorting to judicial populism. For example, when the Ayodhya issue was referred to the Supreme Court to give an opinion under article 143 of the Constitution to determine whether a Hindu temple existed on the site where the Babri Masjid was demolished in 1992, the court expressed its inability to give its opinion since it felt the issue was outside the court's purview. The court has to find a golden mean, a difficult task under any circumstance, between 'passivism' and excessivism'. In the words of Upendra Baxi, "Too little activism would signify under-enforcement of constitutional notions of good governance, rights and justice. Too much results in over-enforcement of these ideals, imperiling the legitimacy and efficacy of judicial power."

11 272 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 45 : 2 Flowever, the deprived and the marginalized people for whom the judiciary is the last resort of appeal would want the judiciary to be more activist. The Supreme Court today is considered to be more sympathetic to the needs of the oppressed and more representative of a consensus in a pluralistic society consisting of diverse cultures, traditions and conflicting interests than the Parliament or the legislature. The latter two are thought to be politicized and opportunistic and divided on casteism, regionalism and communalism whereas the court is thought to be more objective and above these pitfalls. VI Bridging the economic and social divide As already indicated in the earlier sections, the Supreme Court through its broadminded interpretation of law, has provided relief to the poor and the disadvantaged. The court has given rulings in favour of the bonded labour, children of prostitutes, Mumbai's pavement dwellers (Olga Tellis v. Bombay Municipal Corporation), 22 Delhi hawkers and street vendors (Saudan Singh v. NDMC & others) 23 provision of free and compulsory education to all the children, displacement of persons from their natural habitats as a result of mammoth civil projects like dams etc. In this respect the court has shown vision and its progressive intent. It has helped these deprived sections in their efforts in getting justice and a degree of dignity. Activism has led to what Baxi describes as 'redemocratization of the Indian polity; and of protection, promotion and preservation of human rights'. But Baxi also raises a caveat that it (judicial activism) comes down heavily on micro-structures but leaves intact the macro-structures of political power. He lists several examples: Closing down of small tannery businesses but being unable to take a coherent human rights stance in mega-irrigation projects and hazardous nuclear power plants that present long term, environmental and human hazards; enunciating gender justice even to the point of legislating in Visakha 24 a code against gender harassment, yet fail to protect victims of rape and sexual violence, etc. He also underlines a lacuna of activist adjudication which 'remains unevenly transformed 1 - it does not give narrative voice to those violated by state and civil society. The Bhopal case was settled without consultation with the violated. Visakha proceeded to enunciate a judicial 22. AIR 1986 SC (1992) 2 SCC Visakha v. State of Rajasthan 1997 (5) SCALE 453.

12 2003] NOTES AND COMMENTS 273 legislation on sexual harassment without any dialogic input by everyday victims.../ Baxi also points out to the practice of the Supreme Court and some high courts of distributing judicial brickbats to solo social organizations while reserving bouquets for the more organized petitioners. He gives the example of Sheela Barse 25 in the former category and cites organisations like PUCL, PUDR or common cause as examples of the latter category. VII Corruption in the judiciary One area in which the judiciary can be more pro-active is in dealing with cases involving prima facie misconduct and misdemeanor of judges. Recently, cases of several judges of the Supreme Court as well as the high courts have surfaced where the judges have been accused of corruption, seeking of sexual favours and of nepotism 26. In the absence of suitable laws to deal with such cases, the accusations against the judges have been ignored and the judges gone unpunished. There is some talk of setting up of a National Judicial Commission (NJC) consisting of the Chief Justice of India, two senior judges, the Union Law Minister and an eminent person nominated by the chief justice to deal with the errant behaviour of the judges. At present, although the President, the prime minister and the MP's are accountable, the judges are not. The procedure of impeachment of judges is so cumbersome as happened in the case of Justice Ramaswami, that it is useless to book the judges for their misdemeanor. It would be in the interest of the judiciary itself to initiate steps, which would make the judges accountable, and above suspicion. Here a more pro-active role of the Supreme Court would be welcome. In this connection it is relevant to point out that the National Commission for Review of the Working of the Constitution (NCRWC) m its Report in 2002, has recommended that a committee of the National Judicial Commission may be constituted to examine deviant behaviour of all kinds of judges of the Supreme Court or the high courts when any complaints are received against them. The Report has recommended that the committee may comprise the Chief Justice of India and two senior most judges of the Supreme Court. If the committee finds that the matter is serious enough to call for a fuller investigation or inquiry, it shall refer the matter for a full inquiry to the committee [constituted under the Judges' (Inquiry) Act, 1968]. The committee under the Judges 25. Sheela Barse v. Union of India 1988 (4) SCC See, India Today, Jan. 20,2003 at

13 274 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 2 Inquiry Act shall be a permanent committee with a fixed tenure with composition indicated in the said Act and not one constituted ad-hoc for a particular case or from case to case, as is the present position under section 3(2) of the Act. The tenure of the inquiry committee shall be for a period of four years and to be re-constituted every four years. The inquiry committee shall be constituted by the President m consultation with the Chief Justice of India. VIII Future of judicial activism As the polity has become more complex and the judiciary is evolving in its role and being required to take on a more activist role, the question that remains is what will be the future of judiciary and judicial activism? Rajeev Dhawan 27 has argued that the judiciary was an instrument of state in the British days and largely retained this character even during the early period of independence. He has stated that the "construction of the judiciary as.an institution of state paved the way for regarding it as different from other bureaucracies of the state that were directly subjected to operational, day to day line management control. They were also under a positive mandate to give effect to all or any directions from the political rulers. But over the last few decades it is seen that the judiciary has secured an independent recognition for itself and is becoming a constitutional institution in its own right. Thus we see its transformation from being an instrument of state to an institution of governance." This is overall a positive trend despite the limitation and lacunae indicated earlier, considering the decay of other institutions of state. The question that arises is, will this trend continue - will the judiciary become more assertive and respond to the challenges faced by it? Will it retain its independence and importance or will the Parliament or the executive try to curb and curtail the role and powers of the judiciary? This is an important question that needs to be studied and analyzed in detail. Ravi P. Bhatia* 27. Supra note 18 at 329. * Delhi University.