Comments on: Judicial Activism Unleashed, Again

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By: Back With a Bang | Critical Twenties

Back With a Bang | Critical Twenties — Thu, 07 Jul 2011 18:32:52 +0000

[...] issue of judicial activism has been done to death here and elsewhere and the arguments, after a point of time, are just the same old re-treads – [...]

By: anirban bhattacharya

anirban bhattacharya — Wed, 23 Feb 2011 10:46:39 +0000

surprisingly, neither the learned counsels nor the Hon’ble Judges deciding the matter and ofcourse the learned people above have noticed that the case ought to have been decided on a simple ground which is as under:
the Hon’ble Apex Court allowed the appeal of the convict and set aside the impugned judgment of the Designated Court, Assam at Guwahati dated 28.03.2007 passed in TADA Sessions Case No. 13 of 1991 whereby the TADA Court convicted the Appellant under Section 3(5)of the TADA which makes mere membership of a banned organisation criminal. Admittedly, the case against the Appellant was that in the year 1991 which would imply that the offence was committed sometime in 1991 or earlier and in no case after 1991. Curiously, Section 3(5) of the TADA has been inserted in the statute book in 1993 by Section 4 of Act 43 of 1993. In the instant case the charge which was framed by the Court against the Appellant was under Section 3(5) of the said Act. But such a charge could not have been framed against him by the Court in as much as on the alleged date of occurrence, i.e. in the year 1991, Section 3(5) of the Act was not brought on the statute book and thus did not exist as an offence. The framing of the charge was thus inherently defective and consequently, the conviction, bad in law.
see Ganesh Gogoi v State of Assam, reported in (2009) 7 SCC 404

By: Sidharth Chauhan

Sidharth Chauhan — Tue, 22 Feb 2011 03:52:05 +0000

Your observations are spot on. The Court cannot read in additional substantive elements into a statutory offense. I would describe this as a case of judicial over-reach rather than activism, since the latter term connotes a proactive substitution of judgment in matters of policy (as opposed to re-interpreting statutes in a strained manner to arrive at the desirable conclusion in a dispute). Even though I personally consider Section 15 of the now repealed TADA to be a legislative stupidity of the highest order, the proper course for the court should have been to discuss the evidence on record.

By: Shantanu

Shantanu — Tue, 15 Feb 2011 09:37:37 +0000

Hi Gautam,

I would probably think not. Especially, since it is a provision duly enacted by law (as opposed to an exercise of executive powers); and also given its object and purpose, criminalising the membership of a terrorist organization does not seem unreasonable.

By: Gautam

Gautam — Tue, 15 Feb 2011 07:48:25 +0000

As a matter of curiosity, do you think the judgment could have been justified had they struck it down for violating either Art. 19 or 21?