Stevanovic Igor


The Judiciary through its Activism towards the changing nature of the state regarding Privatization



Montesquieu, who propounded the Doctrine of Separation of Powers, argued in favour of a system of governance, in which the different branches of government exercise different powers to avoid concentration of powers and safeguard human liberty.[1] According to him, the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the law.[2] The three organs of the government should be separate, distinct and sovereign in its own sphere so that one does not trespass the territory of the other.[3]

Although, the judiciary is made separate from the executive by the Indian Constitution regarding the public services of the State,[4] still it grants certain executive powers to the President and Governors[5], and they are also empowered with certain legislative powers[6] and certain judicial powers.[7] Moreover, the legislature exercises certain judicial functions[8] and judiciary exercises few legislative and executive functions[9]as well.[10]

Basically, Judicial activism is in variance from this doctrine[11]. As far as the origin and evolution of judicial activism go, there are two theories behind the whole concept, which are:

(i) Theory of Vacuum Filling,[12] and (ii) Theory of Social Want[13].[14]

According to Prof. Upendra Baxi, Judicial Activism is an inscriptive term which means different things to different people.[15] In India, Judicial activism since the 1980s, stepped in the vacuum caused by the deterioration regarding credibility of the political executive.[16] This origin can also be traced to the ‘Theory of Social Want.’[17] It was due to executive abuses and excesses that the judiciary had to intervene during the course of legal proceedings.[18]Today, the debate in Indian polity has now been focused mostly on the extent of judicial activism questioning the efficacy and legitimacy of such wide-ranging interventions into the domain of the executive and legislature.[19]

Statement of Problems

In the last two decades of 20th century, due to emergence of new policies of Globalization, the world economic scenario has been changed.[20] One of the changing aspects of State in Globalization in India, is adoption of Privatization policy.[21] Under the Privatization policy, the State has either disinvested its own funds from the public sectors or the private individual has been granted the permission to establish and run the enterprises according to their interests.[22] The private sectors are establishing the industries on the basic services like water, road, railways, electricity, and education.[23] The role of state in the matters of the governance is being minimized and the maximum scope is being endowed with to the private individuals who are capitalists.[24] They are not covered under the definition of State and there is a huge violating the fundamental rights of the citizens.[25] As this policy is market oriented, they need not to respect Directive Principles of State Policy.[26] In brief, regarding the enforcement of Constitutional Scheme, it is evident to become difficult in Privatization and it is responsible to raise serious social, economic and legal issues.[27]


The state has privatized the public sectors either by disinvestment or by welcoming the participation of the private individuals in exercising its primary functions such as security, education, health and other public utility services. The role of state in the matters of the governance is being minimized and the maximum scope is being provided to the private individuals who are capitalists. As they are not covered under the definition of State under Art.12 and there is a huge violation regarding the fundamental rights of the citizens. It is the Indian Judiciary which has the power to declare any act ​of​ the State unconstitutional ​ while addressing the socio - economic and legal issues raised due to Changing nature of the State regarding Privatization.

Research Questions

The researcher in dealing with the aforementioned problem is going to deal with the following research questions which will suffice the object and purpose of the research. They are mentioned here-in-below:-

q How the Indian Judiciary has refrained the State from adopting such policies which are unconstitutional in nature through its Judicial Activism?

q ​What are the reforms suggested in this regard?

Research Methodology

The methodology followed in this research will be purely doctrinal in nature. Therefore, the researcher will be dealing mainly with the doctrinal material available and will do an extensive study on the abovementioned aspects. The research done by the researcher in this project will be of descriptive and analytical nature. The analytical study of several decisions of the apex court w.r.t. the changing nature of state regarding privatization. The secondary sources that the researcher will use are the various online resources like journals, articles and papers relating to this particular case.



The researcher for the purpose of this study has referred several articles in order to identify the problems of changing nature of the state regarding Privatization and its violation of fundamental rights and analysis of the response by the Indian Judiciary through its activism.

Book Referred:

q The researcher has looked into the ‘Kmiec definition’ of judicial activism in order to analyse whether the judicial pronouncements of the apex court falls under the various facets of Indian Law. For this, the researcher has referred the book, Limits of Legality:The Ethics of Lawless Judging, (Oxford University Press, U.K.., 2010), written by Jeffrey Brand-Ballard. In his book, the author has investigated the conditions under which individual judges are morally responsible for participating in destructive patterns of lawless judging and tried to contravene with the conventional rationale behind it.

Journal Articles:

Ø In order to analyse whether the practices adopted by the Indian Judiciary during the pre-economic and post-economic reform period in India fall within the ambit of ‘Harwood principles’ of adjudicatory practices, the researcher has gone through the article ‘Judicial Activism in International Law—A Conceptual Framework for Analysis, Journal of International Dispute Settlement, (2012). It is written by Fuad Zarbiyev. Herein, the writer provides an analytical framework designed to assess the phenomenon of judicial activism in international law. In his article he provided for viz; how to define Judicial Activism (p.3), parameters of Judicial Activism, assessment of Judicial Activism in Int’l law.

Ø The researcher has analysed several case laws with regard to the judicial response through its activism regarding the changing nature of the state w.r.t. Privatization. For this, the researcher has referred an article: JUDICIAL ACTIVISM & THE CHANGING NATURE OFTHE STATE IN GLOBALIZATION, written by Dr. Kantrao P. Pole (Naik). The writer in his article has divided the response of judiciary in this regard into pre 2002 period and post 2002 period and tried to give a clear scenario of the role played by the Indian Judiciary in this regard.

Ø In the fourth Chapter of the project, the researcher has referred the article: JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA, written by Pritam Kumar Ghosh in order to suggest various reforms relating to the phenomenon of Judicial Over Activism. In this article the writer provided for various suggestions in this regard in order to provide for judicial moulding of standing, procedure, procedure, etc.; and suggestions to correct the over activism of Judiciary in India.



Judicial activism in India has led to concentration of powers in the judiciary to an extent that the executive and legislature are seen as accountable to the judiciary.[28] The pronouncements of the Supreme Court fall well within the ‘Kmiec definition’[29] of judicial activism and the ‘Harwood principles’[30] of adjudicatory practices.[31]

In the Capitation fee case,[32] the Medical education was privatized and in order to regulate the tution fees to be charged by Private Medical Colleges in State, the State of Karnataka had passed the Karnataka Educational Institutions (Prohibition of Capitation fee) Act,1984.[33] The petitioner, in this case, was denied the admission by Private Medical College as she was not able to pay the fees of Rs. 60,000/- p.a., which was levied on her by the college as she was from a different State.[34] She challenged the Act by Writ Petition in Supreme Court.[35] The apex court held that; ‘although the right to education as such has not been guaranteed as a fundamental right under the Constitution, it becomes clear from the Preamble of the Constitution and its Directive Principles, contained in Part IV, that the framers of the Constitution intended the State to provide education for its citizens.[36] The court also held that a "capitation fee" makes education unaffordable and therefore not accessible to the poor and thus held such a fee as arbitrary and violative of Article 14.[37]

In Unni Krishna J.P. v/s State of Andhra Pradesh[38], The apex Court upheld the decision taken in the case of Mohini Jain and held that the citizens have a fundamental right to education which flows from Article 21 and ‘personal liberty’ includes right to receive education; it is subject to the limits of economic capacity and development for the State.[39]

In Samatha v/s State of Andhra Pradesh[40], This case is relating to the Andhra Pradesh government granted mining lease of reserved forest area where tribal groups are inhabitants to the private non – tribal individuals.[41] The SC declare the lease void and held that it is duty of the State of protect the right to social, economic, civil and cultural rights of the people in particular the Dalits and Tribals as enjoyed in Article 46 read with Article 38 and 39 and all other Articles read with right to life guaranteed by Article 21 of the Constitution of India.[42]

In BALCO Employees Union v/s Union of India[43], the employees challenged the decision of the Central Government to disinvestment majority shares of Bharat Aluminium Co. Ltd., (BALCO) the public under taking to private party.[44] The workers contended that they had been adversely affected by the decision of Government of India to disinvest 51% shares in BALCO in favour of private party and also contended that by reason of disinvestment the workers have lost their right and protection under Article 14 and 16 of the Constitution of India.[45] The SC strongly defended and justified the Governmental policy of disinvestment by saying that the policies of the government ought not to remain static and held that the process of disinvestment is Policy decision involving complex economic factors and the courts have consistently refrained from interfering with economic decision.[46]

In T.M.A. Pai Foundation v/s State of Karnataka[47], the Court has protected the right to establish the educational institutions as fundamental right under Article 19 (1) (g) and Art. 30 (1) wead with Art. 29 (1) of Indian Constitution.[48] It is held that there shall no interference of the State or Universities in the matters of administration of these private institutions.[49]

In P.A. Inamdar and others V State of Maharashtra and Ors.[50], the SC held that private educational institutions which intend to provide better professional education can’t forced by State to make admissions available on the basis of reservation policy.[51] This decision is nothing but the reflection of policies of liberalization and privatization of education in India.[52]



Judicial activism, however, does not mean governance by the judiciary.[53] Whenever, the political process having been found deficient, the judiciary has, at times, taken over the governance of the country by default.[54] The Court has overstepped its limits on certain occasions[55], when it issued directions in matters, which were administrative in nature, and in respect of which the Court did not possess the required expertise, which is also sometimes referred to as aggressive activism or government by Mandamus.[56] The lack of accountability has been especially egregious when in recent times we see the higher judiciary making inroads into and passing orders which are within the domain of the executive and legislature.[57] Various reforms suggested with regard to Judicial Over Activism which are discussed as below:

(1) Judicial Activism not PIL:

There is misconception regarding equating PIL with judicial activism in India.[58] Judicial activism is not PIL.[59] A court can be judicially active or inactive irrespective of PIL.[60]

(2) Judicial Activism not Judicial Adventurism:

Judicial Activism does not mean judicial adventurism.[61] The supreme court should formulate a code of conduct for judges to follow while practicing the judicial activism, otherwise it may lead a judge to follow his motion of justice ignoring the limits of law and “judicial activism” and may regenerate into “judicial adventurism”.[62] Further judicial activism shall be made use of only as a last resort and should sparingly used when all other attempts on the part of judiciary have failed to forced the executive and the legislature to perform their duties.

(3) Displacing Government Administration:

There is a misconception not only in the public but also in courts regarding the function of judiciary under the Constitution, particularly with reference to the Public Interest Litigation.[63] Over the years, the public has developed a practise of routine recourse to the courts for every perceived failure of government and the courts on their part have come to believe that it is their judicial duty to intervene in such failures by making orders for correcting or improving the government.[64] Such PIL petitions are filed in the Supreme Court in its original jurisdiction under the Article 32 of the Constitution which now seem to have lost its meaning with respect to all practical purposes.[65] It is evident from the fact that the court's scheme for admissions in private medical colleges in the Unnikrishnan’s case in 1993, which was in distinguishable from legislation, prevailed for nine years before it suffered an inglorious end, when the court itself struck it down as "unconstitutional" in T.M.A. Pai's case in 200256, causing considerable confusion in admissions in professional colleges.[66]



In the words of Justice J S Verma:“…the judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial ‘adhocism’ nor judicial tyranny.”[67] The acknowledgement of this difference between “judicial activism” and “judicial overreach” is important for the smooth functioning of a constitutional democracy with the separation of powers as its central characteristic and supremacy of the constitution as the foundation of its edifice. The researcher opines that ‘Judicial activism’ should not be used to erode the Doctrine of separation of powers. Also, if there is continuous clash among the the Legislature, Executive and the Judiciary, it will also damage our well established democratic system of governance.[68]

Thus, the researcher concludes that after the materialization of Globalization in India through Privatization, the numbers of controversial issues were raised wherein the social interests were involved.[69] The Indian Judiciary in beginning of the Policy of Privatization responded in the interests of Protection of welfare of people in large and refrained the State from doing such activities against the Constitutional Policies.[70] But, after analysing various case laws in this regard, in the later phase (post 2002 period); particularly Post BALCO is that Judicial Activism turned technically in favour of the Privatization Policy in India.[71]

[1] Dr. Justice B.S. Chauhan, The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint, available at:<>, accessed on: 20-03-2015.

[2] Ibid.

[3] Singh Nidhi, Vijay Anurag, Separation of Powers: Constitutional Plan and Practice, International Journal of Scientific and Research Publications, (Vol. 3, Issue 11, Nov. 2013), available at:

<>, accessed on: 20-03-2015.

[4] Art. 50 of Constitution of India.

[5] Article 53 (1) and Article 154 (1) of Constitution of India. More at: Ministery of Law and Justice, GOI, The Constitution of India, available at: < >, accessed on: 20-03-2015.

[6] Articles 123, 213 and 356 of Constitution of India. More at: Ibid.

[7] Articles 103 and 192 of Constitution of India. More at: Id.

[8] Articles 105 and 194 of Constitution of India. More at: Id.

[9] Articles 145, 146, 227 and 229 of Constitution of India.

[10] Infra, at N. 3.

[11] Doctrine of Separation of Powers.

[12] The Theory of Vacuum Filling states that a power vacuum is created in the governance system due to the inaction and laziness of any one organ. When such a vacuum is formed, it is against the good being of the nation and may cause disaster to the democratic set up of the country. Hence, nature does not permit this vacuum to continue and other organs of governance expand their horizons and take up this vacuum. In this case, the vacuum is created by the inactivity, incompetence, disregard of law, negligence, corruption, utter indiscipline and lack of character among the two organs of governance viz. the legislature and the executive (Subhash C. Kashyap, 1997). Hence, the remaining organ of the governance system i.e. the judiciary is left with no other alternative but to expand its horizons and fill up the vacuums created by the executive and the legislature. Thus according to this theory, the so-called hyper-activism of the judiciary is a result of filling up of the vacuum or the void created by the non-activism of the legislature and the executive. More at: Arpita Saha, Judicial Activism in India: A Necessary Evil, (8th July, 2008), available at:

<>, accessed on: 20-03-2015.

[13] The Theory of Social Want states that judicial activism emerged due to the failure of the existing legislations to cope up with the existing situations and problems in the country. When the existing legislations failed to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. The only way left to them within the framework of governance to achieve this end was to provide non-conventional interpretations to the existing legislations, so as to apply them for greater good. Hence emerged judicial activism. The supporters of this theory opine that “judicial activism plays a vital role in bringing in the societal transformation. It is the judicial wing of the state that injects life into law and supplies the missing links in the legislation… Having been armed with the power of review, the judiciary comes to acquire the status of a catalyst on change.” (Shailja Chander, 1998). More at: Ibid.

[14] Arpita Saha, Judicial Activism in India: A Necessary Evil, (8th July, 2008), available at:

<>, accessed on: 20-03-2015.

[15] Lipika Sharma, Judicial Activism in India: Meaning and Implications, available at:

<>, accessed on: 20-03-2015.

[16] Shreeya Umashankar, Judicial Activism And The Supreme Court Of India, (1st Oct., 2013), available at:

<>, accessed on: 20-03-2015.

[17] Infra, N. 14.

[18] Ibid.

[19] Infra, N. 15.

[20] Dr. Kantrao P. Pole (Naik), JUDICIAL ACTIVISM & THE CHANGING NATURE OFTHE STATE IN GLOBALIZATION, International Research Journal , Vol. 1 ISSUE 12, (Sept. 2010), available at:

< >, accessed on: 20-03-2015.

[21] Ibid.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] This has an adverse effect on the spirit and implementation of constitutional goals of Justice, Equality, Liberty amd fraternity . In this critical situation the Indian Judiciary which is endowed with the constitutional Jurisdiction to declare any act of the State constitutional or unconstitutional is not expected to sit with folded arms. More at: Infra, N. 20.

[28] Shreeya Umashankar, JUDICIAL ACTIVISM AND THE SUPREME COURT OF INDIA, (Oct. 1, 2013), available at: <>, accessed on: 21-03-2015.

[29] A recent study of usage by Keenan Kmiec identifies five core meanings of Judicial Activism: (1) invalidation of the arguably constitutional actions of other branches, (2) failure to adhere to precedent, (3) judicial ‘legislation’, (4) departures from acceptedinterpretive methodology and (5) result – oriented judging. More at: Jeffrey Brand-Ballard, Limits of Legality:The Ethics of Lawless Judging, (Oxford University Press, U.K.., 2010), available at:

<>, accessed on: 21-03-2015.

[30] Sterling Harwood defines activism as designating one of the following adjudicative practices: (1) refusing to take an attitude of judicial deference ... for legislative or executive power or judgment; (2) relaxing requirements for justiciability; (3) breaking precedent; and (4) loosely or controversially construing constitutions, statutes or precedents. More at: FUAD ZARBIYEV, Judicial Activism in International Law—A Conceptual Framework for Analysis, Journal of International Dispute Settlement, (2012), pp. 1–32, available at:

<>, accessed on: 21-03-2015.

[31] Infra, N. 28.

[32] Mohini Jain v/s State of Karnataka (AIR 1992, SC 1858).

[33] Under this law the tuition fee to be charged was as : Candidate admitted against government seats Rs.2,000/- per year, the Karnataka students Rs. 25,000/- per annum and students from outside of Karnataka Rs. 60,000/- per annum. More at: Supra, N.20.

[34] Ibid.

[35] The main issues at stake were whether there is a "right to education" guaranteed to the people of India under the Constitution and whether the charging of capitation fees violates this right and/or the equality clause in Article 14 of the Constitution. More at: ESCR – Net, Mohini Jain v. State of Karnataka (1992 AIR 1858), available at: <>, accessed on: 21-03-2015.

[36]The court then relates the Directive Principle of Article 14 which requires that the state attempt to implement the right to education within its economic capacity. The court then reasons that this principle creates a constitutional right to education because education is essential to the fulfillment of the fundamental rights of dignity and life. The court links the right to education to the right to life by reasoning that to sustain life a human being requires the fulfilment of all the enabling rights which create life of dignity. In doing this, the court pointed to numerous cases which held that the right to life encompassed more than life and limb, but also dignity and the necessities of life, such as nutrition, clothing shelter, and literacy. Without dignity, the court explains, the right to life is not fulfilled. It was the court's opinion that one is only able to obtain a dignified life in India through education, making education fundamental to the right to life, and therefore an obligation of the State to fulfil. The court also held that accessibility to education should be realized for all people, rich or poor. If the government decides to discharge its obligation through private educational institutions, it has created an agency-relationship, through which it can fulfil its obligations under the Constitution. This private institution is bound by the same requirements and cannot charge higher tuition fees than those established for "government seats". More at: Supra, N. 35.

[37] (Equality Clause) because it bases admission on income, rather than merit. Finally, the court also determined this fee was not a tuition fee as the respondents claimed, but a capitation fee, which violated the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act. More at: Ibid.

[38] 1993 SCC (1) 645.

[39] Supra, N. 20.

[40] AIR 1997 SUPREME COURT 3297.

[41] Id.

[42] Supra, N. 20.

[43] AIR 2001 SCW 5135.

[44] Supra, N. 20.

[45] Ibid.

[46] Id.

[47] 1995 SCC (5) 220.

[48] GOI, NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, Guidelines for determination of Minority Status, Recognition, Affiliation and related matters in respect of Minority Educational Institutions under the Constitution of India, available at: <>, accessed on: 22-03-2015.

[49] Infra, N. 44.

[50] 2005 (3) MhLj 1067.

[51] Infra, N. 44.

[52] Ibid.

[53] Ms. Manika, Judicial Activism In India: Means For Attaining Good Governance, available at:

<>, accessed on: 23-03-2015.


[55] For instance, the recent events in the States of Goa and Jharkhand (2005). Not only did the Court order the legislature to conduct a vote of confidence but also laid down in detail how the proceedings of the legislature should be conducted in this regard. Similarly, the Supreme Court decided that its order shall be taken as notice for the session of the State Assembly and ordered that the proceedings of the House be video-recorded and produced before the Court for review.

[56] Infra, N. 53.


<>, accessed on: 25-03-2015.

[58] Pritam Kumar Ghosh, JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA, 2013 GJLS Vol.1, No.1, available at: <>, accessed on: 27-03-2015.

[59] Ibid.

[60] Id.

[61] Justice Markandey Katju, Doctrine of Judicial Review in India: Relevancy of Defining Contours, available at: <>, accessed on: 27-03-2015.

[62] Ashish Tuti, Judicial Activism / Judicial Overreach, What may be the steps to bring the goods of judicial activism/overreach?, available at: <>, accessed on: 28-03-2015.

[63] Supra, N. 58.

[64] Ibid.

[65] Id.

[66] Id.

[67] R Shunmugasundaram, Judicial activism and overreach in India, available at: <>, accessed on: 28-03-2015.

[68] Vipin Kumar, “The Role of Judicial Activism in the Implementation and Promotion of Constitutional Laws and Influence of Judicial Overactivism”, IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 19, Issue 2, Ver. IV (Feb. 2014), PP 20-25, available at: <>, accessed on: 28-03-2015.

[69] Supra, N. 20.

[70] Ibid.

[71] Id.


Primary Sources

·Constitution Of India : The Legal Text.

Secondary Sources


Ø Jeffrey Brand-Ballard, Limits of Legality:The Ethics of Lawless Judging, (Oxford University Press, U.K.., 2010), available at: <>, accessed on: 21-03-2015.


Lex Legacy Bloc