Judicial Activism: A Comparative Study Of India, South Africa And Pakistan
- IJLLR Journal
- Jun 13, 2022
- 18 min read
ABSTRACT
A Constitution has been described as “the autobiography of a nation”. One of the Basic features of any constitution should be judicial activism. Judicial Activism is the need of the hour because the present laws are not well equipped to deal with the human right violation. A comparative analysis of different countries like India, South Africa and Pakistan can give an insight to the progress made by the judiciary in imparting justice through judicial activism. The Indian courts have long enough acted as the "conscience keeper of the status quo", but this has changed during the last two decades as judicial activism has opened up a new dimension of the justice imparting process and given a new hope to the justice starved millions of India.
The Doctrine of Judicial Activism in India is strong yet controlled, in Pakistan it is controlling other organs of the State as well, and in South Africa it is evolving with time. The type of Judicial Activism in India is mainly socio-political, human rights judicial activism and progressive. In South Africa it is mainly socio-political and human rights Judicial Activism. Whereas; in Pakistan the boundary of Judicial Activism, is marked by, all kinds of judicial creativity and is blurred. The evolution and growth of Judicial Activism in these countries have been a result of human rights violation as well as the injustices to the people. The necessity of Judicial Activism is prevalent in all the cases where there is a want of justice which is not legislated by a specific law but is established through the constitutional principles.
Judicial activism is a sine qua non of democracy because without an alert and enlightened judiciary, the democracy will be reduced to an empty shell. It is obvious that under a constitution, a fundamental feature of which is the rule of law, there cannot be any restraint upon judicial activism in matters in which the legality of executive orders and administrative actions is questioned. The courts are the only forum for those wronged by administrative excesses and executive arbitrariness.
Introduction
With the emergence of independent states, in societies which up till then had been under colonial rule; ushered in a social change. Upon independence, subjects emerged as citizens whose fundamental rights were recognized. In the realization of these rights, the judiciary was to make a significant contribution.[3]
A Constitution has been described as “the autobiography of a nation”.[4] Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." Judicial activism means active role played by the judiciary in promoting justice. Judicial Activism to define broadly is the assumption of an active role on the part of the judiciary.[5] Public Interest Litigation is the product of judicial activism on the part of the judges of the Supreme Court and the High Courts.[6]
With a legal architecture designed for a colonial situation and a jurisprudence structured around a free market economy, the Indian judiciary could not accomplish much in fulfilling the constitutional aspirations of the vast masses of poor and under privileged segments of the society during the first three decades of freedom.[7] The court appeared to act during this period as the "conscience keeper of the status quo". But this has changed during the last two decades as judicial activism has opened up a new dimension of the justice imparting process and given a new hope to the justice starved millions of India.
Types of Judicial Activism
Procedural judicial activism: Judges assist in determination of the facts in issue, fixing of time limits for particular procedural steps, restriction of witnesses’ examination, number of expert witnesses who may be called, and length of addresses.
Socio-political judicial activism: Judicial activism relates to activism in social and political reform.
Human rights judicial activism: Judicial protection of human rights by giving legislation a humanitarian interpretation.
Progressive & Regressive Judicial Activism: Progressive Judicial Activism aimed at advancing the values underlying the Constitution. Regressive judicial activism, on the other hand is activism engaged in outside the purposes of progressive judicial activism. It largely occurs in the realm of politics when judges allow their political beliefs to influence their judgments.
India
Article 32 of the India Constitution confers the fundamental right to move the Supreme Court by appropriate proceeding for enforcement of fundamental rights and vests power in the Supreme Court to issue any direction, order or writ for enforcement of such fundamental rights.
The judges in India have fortunately a most potent judicial power in their hands, namely, the power of judicial review and judicious and sustained use of this power to further the cause of social justice is absolutely imperative. The judiciary has to play an important role in preventing and remedying abuse and misuse of power, violations of human rights and eliminating exploitation and injustice. It is necessary for this purpose to make procedural innovations in order to meet the challenges posed by this new role.
The court was for a long time used only by those who were wealthy and affluent and the poor were priced out of the judicial system. It was impossible for the common people to approach the court for justice thus the Supreme Court took the view that it was necessary to depart from the traditional rule of locus standi. In fact, the practice of appointing socio-legal commissions of inquiry for the purpose of gathering relevant material and information bearing on the case put forward on behalf of a disadvantaged individual or section of a community in social action litigation has now been institutionalized as a result of the Indian Supreme Court judgment in Bandhua Mukti Morcha v Union of India.[8]
In Dr. Zakir Hussain Memorial Lecture, Former Chief Justice of India A.M. Ahmadi said, “In recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of public frustration with the democratic process. This is the reason why the Court had to expand its jurisdiction by, at times, issuing novel directions to the executive.”
In Golaknath v Punjab[9] the court ruled that Parliament could not curtail any of the fundamental rights in the Constitution. Although it backtracked on the forcefulness of this decision some six years later, the court continued to assert that in principle no institutional body could alter the democratic essence of the Constitution. This case initiated and developed the court’s jurisprudence around what became known as the “basic structure doctrine”. In terms of this doctrine, the court was in charge of preventing the erosion of those enduring values that constitute the essence of constitutionalism.
In Kesavananda Bharati[10]case by a majority of seven against six, the Supreme Court held that by Article 368 of the Constitution, Parliament has amending powers. But the amendatory power does not extend to alter the basic structure or framework of the Constitution.[11]
In Vishaka v State of Rajasthan[12]the court laid down exhaustive guidelines to prevent sexual harassment of women in the work place, until an exhaustive legislation has been enacted for the purpose. It was held that it is the duty of every public as well as private owner to prevent sexual harassment of women in the work place. The court went further to make it mandatory to display the guidelines conspicuously in the work place and directed the legislature to make a comprehensive law on the issue.
Finally, in Wadhwa v State of Bihar[13] The petitioner, a professor of political science who had done extensive research in the State’s administration, was deeply interested in ensuring the proper implementation of constitutional provisions. He challenged the State’s practice of repromulgating a number of ordinances without proper approval from the legislature. The Supreme Court directed the State government to pay the petitioner Rs10, 000 for his excellent research that brought to light this repressive action.
Recent Developments in India
The landscape of recent Supreme Court rulings offers some interesting insights into the metamorphosis of judicial activism in India.[14] Most strikingly, the Supreme Court recently issued a notice to the Union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian students in Australia, who have been facing racially motivated attacks. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. [15]
On 23 February 2013, the apex court in its judgment had slammed the police for its midnight action on June 4 last year against a sleeping crowd at yoga guru Baba Ramdev's rally at Ramlila Maidan in New Delhi and said that a citizen has a right to sound sleep because it is fundamental to life. The Supreme Court recently held sec 8(4) of the Representation of People’s Act as unconstitutional, thereby disqualifying the convicted MLA’s and MP’s to contest elections.
The court has accordingly over the years allowed public interest litigation to vindicate the right to a speedy trial; the right to legal aid; the right to livelihood; and the right against pollution. The court has even gone further to provide remedies to ensure that its decisions are enforced by government through its policy of setting up a monitoring agency which would continuously check and report on the implementation of these decisions.
South Africa
Judiciary in Africa has not been immune from the forces of globalization which have affected all areas of political, social and economic life. The inward-looking culture which was characteristic of the old judiciary is gradually being abandoned as judges come to see themselves as members of a global legal community where knowledge and ideas are exchanged across jurisdictions[16].
One of the key innovations of the constitutional rights revolution of the 1990s was the attempt to introduce independent judiciaries. For a judiciary, which in most parts of Africa was sidelined before the 1990s; its sudden emergence at the heart of constitutional rights adjudication has posed enormous challenges especially in countering the resurgence of majoritarian abuse or dominant party dictatorships that use multiparty as a cloak to perpetuate their dictatorial tendencies.[17] The concept of judicial activism although quite controversial, it is contended that it has an important role to play in entrenching the rule of law and constitutional governance in Africa.
The Alexander Hamilton famously put it, the judiciary had neither the power of “the sword or of the purse,”[18]the African judge more than judges elsewhere have a special duty to creatively promote the course of constitutional justice in every facet of their judgments. The political transformation of Africa that started in 1994 and ended with the certification of the final Constitution in 1996 led to an overhaul of the structure of the judiciary. The Constitutional Court which acted as a final authority in all constitutional matters whilst the Appellate Division now renamed Supreme Court of Appeal (SCA) was given final authority in all non-constitutional law matters, but subject to the final review by the Constitutional Court.
Post-apartheid constitutionalism in South Africa is haunted by the spectra of the injustice perpetrated by apartheid era regimes. As guardian of the new South Africa, through powers vested in it the judiciary carves a niche for a role as legislator of the country’s ‘social transformation project.’
The cue for this is laid down in section 39 of the 1996 Constitution which states:
“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
In a number of cases decided since 1996 where the judges can be said to have adopted an activist approach, they have frequently invoked expressions such as “constitutional values,” and “the spirit, purport and objects of the Bill of Rights,” which appear in section 39 of the Constitution. This has however, only served as a starting point for as most of these cases show, the judges have often tried to adapt the law in a manner that will reflect the changing mores of the society. On account of its recent history, South African judges have felt less restraint and quite courageous and innovative in dealing with matters dealing with human rights.
The very first case that came before the Constitutional Court, S v Makwanyane,[19] dealt with the highly sensitive issue of the death penalty which the apartheid regime had widely used in trying to destroy the resistance to its inhumane system. The sensitivity of the matter came at a time of rising crime rate. The Court after reviewing the legislative history of the drafting of the Constitution and relying primarily on the prohibition of cruel, inhuman and degrading treatment and punishment as well as on the rights to human dignity and equality concluded that the death penalty did not have a place in the legal system of a democratic South Africa. The judgment concluded that it “represents a brave and principled staking of a claim for the authority of the judiciary in general and the Constitutional Court in particular to pronounce on matters of great social controversy, and even on occasion to go against the likely social consensus in giving expression to the words of the constitution.”
In Bhe v Magistrate of Khayelitsha[20]the Constitutional Court was faced with yet another issue left open by the failure of the Constitution to adequately reconcile and balance the right to equality with customary law. The question that arose was whether in the new dispensation, two young girls born outside marriage recognized in civil law were to be deprived of any right to their father’s estate, which under the applicable customary law of succession was subject to the principle of primogeniture under which the estate accrued to their paternal grandfather. In granting an order that the legislative provisions under which this happened were invalid, the Constitutional Court relied on the infringement of the right to equality and dignity of women and the rights of the child enshrined in the Bill of Rights. The court concluded that it was inconsistent with the Constitution insofar as it discriminated against women and extramarital children and to fill the gaps left by the declaration of invalidity, and pending Parliament finding the time to revise the law, crafted a number of specific measures for the guidance of inferior courts faced with such a situation.
Whilst one will commend the activist role so far taken by the South African judiciary, a note of caution must be sounded on the danger of “unrestraint activism” by which a judge injects his personal views into judgments or expresses his political preferences which may lead to far-reaching political consequences that could undermine the body politic of the country[21].
The judgment of Nicholson J in National Director of Public Prosecutions v Zuma [22]is relevant to be discussed. The trial judge set aside the decision by the National Director of Public Prosecutions (NDPP) to indict the respondent, Jacob Zuma. When the matter came before the Supreme Court of Appeal, the court concluded that in the course of his judgment, the trial judge subverted the judicial function by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.
In the midst of the transitional period of most of the new or revised African constitutions and with the legislature struggling to maintain its independence in the face of ominous signs of authoritarian resurgence, the main lesson that can be drawn from is that judicial activism is a powerful weapon which judges all over Africa can use not only to counter authoritarianism but also to promote policies that are socially and economically progressive.
Pakistan
Pakistan’s political history has been characterized by ongoing tussles between the military and democratic establishments. After independence from British Colonial rule in 1947, both India and Pakistan adopted various pre-independence laws and regulations along with legal concepts. Articles 32 and 226 of the Constitution of India empower the Supreme Court and High Courts respectively to exercise judicial review and to issue writs of certain kinds.
The judiciary has a significant role to play in checking the executive and the legislature, and in protecting the constitution. For a long time, the judiciary in Pakistan was seen as playing a role to military dictatorships, leading to this harsh observation by one commentator: ‘In short, Pakistan’s Supreme Court has followed the path of least resistance and least fidelity to constitutional principles…the courts have been the military’s handmaiden in extra-constitutional assaults on the democratic order.[23]
But with changing times, the growing popularity of the Supreme Court, seen widely as reflecting the general will of the people, has come at the expense of the government, which is seen as inefficient and failing to deliver on economic, political and security issues.[24] The judiciary, historically the weakest of the three institutions of government – the other two being the legislature and the executive – paradoxically is today in a position of considerable strength given the popular support that it has gained.
The constitutionality of judicial activism by the Supreme Court of Pakistan is founded on Article 184(3) of the Constitution of Pakistan 1973. It provides that the Supreme Court under its original jurisdiction can pronounce declaratory judgment inter alia on a ‘question of public importance with reference to the enforcement of any of the Fundamental Rights. Judiciary began to be active in Pakistan from mid 80’s onward, when Gen Zia lifted the Martial Law.
In Ms. Shehla Zia[25], the matter involving the construction of a grid station in a residential area of Islamabad; Chief Justice Nasim Hassan Shah while taking cognizance under Article 184(3) extended the meaning of Article 9 of the Constitution relating to ‘life’ and declared the said construction unlawful for being hazardous for the inhabitants due to emission of electromagnetic waves. Concerned authorities were specifically directed by the court to issue public notices prior to future establishment of grid stations in any residential area.
Human Rights Cases by Syed A.Tajawar[26]directing the concerned authorities to formulate uniform provincial policies for keeping the under trial prisoners near to their home districts, Khalil-uz-Zaman v Supreme Appellate Court [27] setting aside death sentence of the accused being unwarranted under the relevant laws and directing all the subordinate courts of Pakistan to exercise utmost care while dealing with cases involving fundamental rights of life and liberty.
In Re Suo Motu Petition[28] public hanging as provided by S. 10 of the ‘Special Courts for Speedy Trials Act’ 1992 was declared void for being in violation of the Art.14 of the Constitution of Pakistan.
New Dimension in Pakistan After 2009
The years from 2009 however, saw a turning point in Pakistan’s judicial history with the Supreme Court coming out on its own and questioning many government policies.[29]Judicial review assumed the shape of judicial activism in Pakistan when the Chief Justice Iftikhar Muhammad Chaudhry regained his power in September 2009. This was a defining moment for Pakistan’s judiciary as it was a stark reminder to the public at large of the connection between the independence of the judiciary and the restoration of democracy in Pakistan[30]. The judiciary emerged as a unified institution having separate identity as an independent organ of the State. This exercise of judicial review by the apex court after 2009 shaped a new jurisprudence in Pakistan that was not tainted with extra-constitutional influences.
The prominent case that proved to be a catalyst of changing the past hackneyed jurisprudence of Pakistan was the Sindh High Court Bar Association[31]. The Supreme Court admitted in the judgment that in the past it had been wrongly justifying extra-constitutional interventions. It further observed indomitably that ‘the military rule, direct or indirect, is to be shunned once and for all. A large number of constitutional petitions and suo moto actions involving misuse of public funds, extra-judicial killings, rape cases, missing persons issues, child marriages, private jails, police torture cases, illegal appointments, illegal promotions, illegal constructions, controversial allotments of state-land on throw away prices, written off bank loans, and matters pertaining to conservation of environment were taken up and decided under Article 184(3).
A separate Human Rights Cell was established by the Chief Justice for dealing with the cases of human rights violations in Pakistan. The Cell functions under the direct supervision of the incumbent Chief Justice of Pakistan in order to expeditiously process the complaints from public.
The present political scene is characterized by a quest for a new equilibrium between the key political institutions—the executive, judiciary and legislature which are seeking to find their space in a dynamic democratic milieu. The whole edifice of legislative and executive framework has been dilapidated by corruption, dishonesty, nepotism and favoritism. This has led to a culture of intolerance, hatred and frustration in the society. The only State organ that enjoys some confidence of the public is the Supreme Court of Pakistan. Judicial activism though preponderantly exercised currently in Pakistan is somehow leading towards transformation of the traditional mindset of abuse of power by the government functionaries, military, bureaucracy and influential non-governmental authorities.
Comparative Analysis
“Judicial activism has virtually been constitutionalised in South Africa, where the court is constitutionally expected to enforce socio-economic rights such as the right to food, clothing and housing. In the celebrated Treatment Action Campaign opinion, the Constitutional Court of South Africa ensured that life-saving anti-retroviral drugs would be made available to South African citizens in need. In similar vein, the Indian Supreme Court has enforced socio-economic rights, though they are not considered enforceable by the Constitution – the right against malnutrition and the rights to shelter are the examples. Despite the fact that the Constitution did not permit socio-economic rights to be justifiable or enforceable, activist judges in India have consequently fashioned innovative remedies to enforce socio- economic rights. The traditional rule that courts will not issue injunctions requiring periodic supervision does not typically apply in socio-economic rights cases, where Indian courts periodically review the implementation of their orders almost in an administrative capacity.”[32]
The Doctrine of Judicial Activism in India is strong yet controlled, in Pakistan it is controlling other organs of the State as well, and in South Africa it is evolving with time. The type of Judicial Activism in India is mainly socio-political, human rights judicial activism and progressive. In South Africa it is mainly socio-political and human rights Judicial Activism. Whereas; in Pakistan the boundary of Judicial Activism, is marked by, all kinds of judicial creativity and is blurred. The evolution and growth of Judicial Activism in these countries have been a result of human rights violation as well as the injustices to the people. The necessity of Judicial Activism is prevalent in all the cases where there is a want of justice which is not legislated by a specific law but is established through the constitutional principles.
A Word of Caution
The institution of public interest litigation (PIL) had helped to secure ''fundamental rights as a living reality for some sections of society.'' However, the PIL ''could not be treated as a pill for every ill''.
The Judiciary cannot take over the functions of the Executive. The Courts themselves must display prudence and moderation and be conscious of the need for comity of instrumentalities as basic to good governance. Judicial activism has to be welcomed and its implications assimilated in letter and spirit. An activist Court is surely far more effective than a legal positivist conservative Court to protect the society against legislative adventurism and executive tyranny.
Judicial activism is a sine qua non of democracy because without an alert and enlightened judiciary, the democracy will be reduced to an empty shell. It is obvious that under a constitution, a fundamental feature of which is the rule of law, there cannot be any restraint upon judicial activism in matters in which the legality of executive orders and administrative actions is questioned. The courts are the only forum for those wronged by administrative excesses and executive arbitrariness.
The judiciary is the weakest body of the state. It becomes strong only when people repose faith in it.[33] Such faith constitutes the legitimacy of the Court and of judicial activism. Courts must continuously strive to sustain their legitimacy. Courts do not have to bow to public pressure, but rather they should stand firm against public pressure. What sustains legitimacy of judicial activism is not its submission to populism, but its capacity to withstand such pressure without sacrificing impartiality and objectivity.
Many are critical of judicial activism as an exercise of judicial powers, which displaces existing laws or creates more legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. Judicial activism can be considered as “legislating from the bench.” Declaring that the judiciary has a vital function to protect minority rights in a pluralist society, former Attorney General of India Soli J Sorabjee said ''judicial activism has contributed to the protection of fundamental human rights.[34]
In the words of Lord Steyn: “(I) n construing statutes, courts have no law-making role. On the other hand, in the exposition of the Common Law, the courts have a creative role … it is necessary for courts, when developing the Common Law, to proceed with caution lest they undermine confidence in their judgments”.[35]
[1] Assistant Professor, Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies [2] Assistant Professor, Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies [3] Kamal Hossain, “The Role of The Judiciary as A Catalyst of Social Change”, Available at http://www.supremecourt.gov.pk/ijc/Articles/9/3.pdf , last visited on 5th June 2022. [4] A. Sachs, “Protecting Human Rights in a New South Africa”, Oxford, Cape Town, 1990, Pg5. [5] Chaterji Susanta, “‘For Public Administration’ Is judicial activism really deterrent to legislative anarchy and executive tyranny?”, The Administrator, Vol XLII, April-June 1997, Pg 11. [6] Keynote address by P. N. Bhagwati, former Chief Justice of India at the 16th annual sessions of the OPA of Sri Lanka on September 26 2015 at the BMICH, Available at http://www.clpr.org.in/.../Indias-Judicial-review-keynote-address-by-Bhagwati-in-Sri Lanka, Last visited on 5th June 2022. [7] Ibid [8] 21 AIR, 1984 SC 802 and see generally, PN Bhagwati, “Social Action Litigation: The Indian Experience,” in The Role of the Judiciary in Plural Societies, London, Frances Publishers (1987) pp. 20-31 and “Judicial Activism and Public Interest Litigation” 23 (1984-1985) Columbia Journal of Transnational Law 561 [9] AIR 1967 SC 1643. [10] (1973) 2 SCC (Jour) 1 [11] K. Subba Rao, “The Two Judgments: Golaknath and Kesavananda Bharati”, Eastern Book Company, Available at http://www.ebc-india.com/lawyer/articles/73v2a1.htm., Last visited on 5th June 2022 [12] AIR 1997 SC 3011. [13] AIR 1987 SC 579. [14] Abhinav Chandrachud, “Dialogic judicial activism in India”, THE HINDU, Jul 18, 2020, Available at: http://www.hindu.com/2009/07/18/stories/2009071852820800.htm, Last visited on 5th June 2022. [15] T R Andhyarujina, “Disturbing trends in judicial activism”, 6 August 2020, Available at: http://indialawyers.wordpress.com/2012/08/06/disturbing-trends-in-judicial-activism/, Last visited on 5th June 2022. [16] EK Quansah Professor of law University of Botswana & CM Fombad Professor of Law University of Botswana, “Judicial Activism In Africa: Possible Defence Against Authoritarian Resurgence?”, Available at http://www.ancl-radc.org.za/sites/default/files/Judicial%20Activism%20in%20Africa.pdf, Last visited on 5th June 2022 [17] CM Fombad, “Challenges to constitutionalism and constitutional rights in Africa and the enabling role of political parties: Lessons and perspectives from Southern Africa”, American Journal of Comparative Law (2007), Vol 55 [18] “The Federalist No. 78 cited by Rossiter (ed.)”, The Federalist Papers, New York, Mentor (1961), p. 465 [19]1995 (3) SA 391 (CC). [20] 2005 (1) SA 580 (CC). [21] Supra Note 15. [22] (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA) [23] Tasneem Kausar, “Judicialisation of Politics and Governance in Pakistan, Constitutional and Political Challenges and the Role of the Chaudhry Court”, Pakistan’s Stability Paradox, Domestic, Regional and International Dimensions (Oxon: Routledge, 2012), p.30. [24] Tasneem Kausar, “Judicialisation of Politics and Governance in Pakistan”, Pakistan's Stability Paradox: Regional and Institutional Concerns (2011) Pg.34. [25] Zia v. WAPDA, P L D 1994 Supreme Court 693. [26] Human Rights Cases (1994) SCMR 1525. [27] (1994) PLD SC 885. [28]Suo Motu Case (1994) SCMR 1028. [29] Ibid. [30] Rajshree Jetly, “Pakistan’s Judicial Renaissance: A New Phase?”, ISAS Insights, no 166, 1 June 2012 [31] Sindh High Court Bar Association v Federation of Pakistan (2009) PLD SC 879. [32] Supra Note 11. [33] S. P. Sathe, “Judicial Activism: The Indian Experience”, Washington University Journal Of Law & Policy, Vol 6, (2001), Available at http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1443&context=wujlp, Last Visited on 5th June 2022 [34] “Sorabjee defends ''Judicial Activism''”, One India News, November 15, 2020, Available at: http://news.oneindia.in/2008/11/15/sorabjee-defends-judicial-activism-1226761401.html, Last visited on 5th June 2022 [35] Diala Anthony Chima, “Judicial Activism in South Africa’s Constitutional Courts: Minority Protection or Judicial Illegitimacy”, Available at http://repository.up.ac.za/bitstream/handle/2263/5322/diala.pdf;sequence=1, Last visited on 5th June 2022
