News: Salve’s attack on those trying to restrain judiciary


This post has been created by Monesh Kumar, a third year law student from Guru Gobind Singh Indraprastha University, New Delhi.


Judges are often encouraged to limit the exercise of their own powers. “A lot of people who are not elected representatives feel that they can impose their will on the government through the courts.” – Harish Salve, Senior Advocate, said during a webinar on ‘Insulting the Judiciary from Social Media Diatribes’.

It is legally, juristically and constitutionally well known that through the judiciary only the citizens can be helped to save their fundamental rights including the right to privacy as enshrined under the scope of Article 21 of the Indian constitution. Violation of privacy is a serious issue and that private data is a valuable property but Indians are not serious about it.

The senior advocate emphasized his above mentioned opinion in the following words: “To say judgment is to favor a political party or judge has acted in favor of political party is wrong. Supreme Court is not a dartboard. You can criticize a judgment saying the judge has taken a conservative line.”

He further contemplated that it is the need of the hour that the comments made by the judges should not be reported. If somebody gets the private data of someone illegally, then, he should be tried for that as the private data of an individual is of great importance which Indians right now are not taking serious unlike USA and, there should also be separate tribunals in India to deal with private defamation cases so as for the speedier trials which would end in 6 months maximum, alike UK.

Significance of the development

 Judges are there to judge and pass the judgment and this should be done by them only. The following inference can be drawn from the aforementioned statements:

  1. It provides a system of checks and balances to the other government branches. Judicial Activism is a delicate exercise involving creativity. It brings out required innovation in the form of a solution.
  2. Judicial Activism provides judges to use their personal wisdom in cases where the law failed to provide a balance.
  3. Judicial Activism also provides insights into the issues. The reason why this is a good thing is that it shows the instilled trust placed in the justice system and its judgments.
  4. Many a time public power harms the people, so it becomes necessary for the judiciary to check misuse of public power.
  5. It provides speedy solutions where the legislature gets stuck in the issue of majority.
  6. When the legislature fails to make the necessary legislation to suit the changing times and governmental agencies fail miserably to perform their administrative functions sincerely, it leads to an erosion of the confidence of the citizens in the constitutional values and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive and the result is the judicial legislation and a government by judiciary.
  7. In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens.
  8. The greatest asset and the strongest weapon in the armory of the judiciary is the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep; the scales in balance in any dispute.

“It is cogent to suppose, that the courts were made to be an intermediate body between the people and the legislature, in order, among other things, to keep the legislature within the limits assigned to their authority.” Since the Constitution is the genuine will of the people, and legislation only the will of a particular legislative majority at a particular time, courts are actually enforcing the will of the people when they nullify the laws that go ultra vires of lawmakers’ powers.

courts are “activist” when they refuse to enforce the Constitution, because that creates a constitutional system the people never endorsed—one in which legislators brandish and flourish powers the people never gave them, and judges refuse to do the job the people assigned them. The Constitution promises meaningful limitations on government power, enforced by an active, attentive and alert judiciary. This promise is just as much a “democratic” value as the citizen’s right to vote. To betray that promise, and force upon the country a different kind of government—even in the name of expanding “democracy”—is to deceive the people’s will, which is expressed in the Constitution. That is why “allaying the independence of the judiciary” is an attack “not only on the judicial power, but on the democratic republic itself.”

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Judicial Restraint

Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges. In the Glossary of Political Economy Terms, published by Auburn University, the glossary defines judicial restraint as the “view that the Supreme Court (and other lesser courts) should not read the judges’ own philosophies or policy preferences into the constitution and laws and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state governments within their constitutional spheres of authority.

On such a view, judges have no popular mandate to act as policy makers and should defer to the decisions of the elected “political” branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the cons constitutions of the several states. ”

Important Case Laws

In Almitra H. Patel Vs. Union of India, where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law. Justice A.S. Anand former Chief Justice of India, in a public lecture cautioned that with a view to see that judicial activism does not become “judicial adventurism”, judges need to be circumspect and self- disciplined in the discharge of their judicial functions. The worst result of judicial activism is unpredictability. Unless judges exercise self-restraint, each judge can become a law unto himself and issue directions according to his personal fancies, which will create chaos. Reservations have been expressed in many quarters about some very recent decisions of the Supreme Court.

The Second Judges Case (1993) and Third Judges Case (1998), which created the collegium system of appointment of judges, were not based on any provision in the Constitution. Article 124, which prescribes how Supreme Court judges are to be appointed, does not talk of any collegium system. Yet, it is the collegium which decides the appointment of judges, despite the founding fathers of the Constitution not envisaging the same anywhere. In fact, despite the unanimous will of Parliament in favor of the National Judicial Appointments Commission (NJAC), the Supreme Court declared the NJAC Act to be unconstitutional on the grounds that it would affect the judiciary’s independence.


The Judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. It is not true that a judicial decision wrongly invalidating a law is more dangerous than a decision wrongly endorsing it. While an erroneous decision striking down a law can cause damage, a decision that wrongly upholds an unconstitutional law can destroy lives and engender depredation on our legal institutions for generations. Judges can no doubt interfere in some extreme cases, as they neither have the expertise nor resources to solve major problems in society. Also, such intrusion by the judiciary into the domain of the legislature or executive will almost invariably have a strong reaction from politicians and others.

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