JUDICIAL ACTIVISM

Paridhi Garg 1

CONCEPT AND DEFINITION

The term" judicial activism" was coined for the first time by Arthur Schlesinger Jr. in his article
"The Supreme Court: 1947" published in Fortune magazine in 1947. “Judicial activism is a
sharp-edged tool which has to be used as a scalpel by a skillful surgeon to cure the malady. Not
as a Rampuri knife which can kill.”(Justice J. S. Verma, 1996)2.
Under the Indian Constitution, the State is under the prime responsibility to ensure justice,
liberty, equality and fraternity in the country. State is under the obligation to protect the
individual’s fundamental rights and implement the Directive Principles of State Policy. In order
to restrain the State from escaping its responsibilities, the Indian Constitution has conferred
inherent powers, of reviewing the State’s action, on the courts. In this context, the Indian
judiciary has been considered as the guardian and protector of the Indian Constitution.
Considering its constitutional duty, the Indian judiciary has played an active role, whenever
required, in protecting the individuals’ fundamental rights against the State’s unjust,
unreasonable and unfair actions.
Judicial activism is a legal expression which refers to court decisions that are primarily or
entirely taking into consideration the individual or political observations of a judge, in place of
subsisting laws. Basically, judicial activism occurs when a judge presiding over a case empowers
his individual or political viewpoints to administer his choice while providing judgement on a
case. Judicial activism is when a judge decides on a case in conformity with the effect of his
personal views on public policy. Hence, a judge may detect or observe constitutional violations
and may not agree with standing by precedents. Overall, Judicial activism is considered to be the
proactive part performed by the judiciary in protecting or looking after the rights of the citizens
by instructing in a manner such that both the Executive and the Legislature need to bring to
fruition, their constitutional responsibilities.
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the
applicable law to consider broader societal implications of its decisions. Judicial Activism is the
tool that has helped the judiciary to create a supremacy over the affairs of the other two organs
and their functioning. The society is to be regulated beyond the realm of laws as well, whenever
there is a grey area or loopholes, judiciary cannot just sit quietly and let injustice happen and thus
they play the role of protectors of law beyond the subjective laws as well.
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

1
1st Year BALLB student, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University
2
Manoj Mitta, 'A strong arm is needed to make the executive work', India Today (March 15, 1996), available at
https://www.indiatoday.in/magazine/cover-story/story/19960315-the-court-has-grown-stronger-in-keeping-with-
the-need-of-the-times-justice-js-verma-833082-1996-03-14.html

1
their decisions, usually with the suggestion that adherents of this philosophy tend to find
constitutional violations and are willing to ignore precedent”.
The three pillars of Indian democracy are the Executive, the Legislature and the Judiciary. The
Legislature frames the law which is interpreted by the Judiciary and the Executive executes it.
When there are lapses on the part of the Executive and/or the Legislature, when the Legislature
becomes adventurous and the Executive becomes autocratic, careless and insensible, judicial
activism becomes imperative to deliver justice.

JUDICIAL ACTIVISM IN ITS MANY FACETS

Judicial activism is a judicial ideology that holds that courts can and should consider
broader societal ramifications of their judgements in addition to the applicable law. In
India, judicial activism has been established in the form of various judicial principles
some of which are as below:
1. Public Interest Litigation
The traditional rule is that the right to move the Supreme Court is only available to those whose
fundamental rights are infringed. However, this rule has been relaxed in its recent rulings. The
court now permits Public Interest Litigation or Social Interest Litigation at the instance of
public spirited citizens for the constitutional and other legal rights of any person or group
of persons who because of their poverty or socially or economically disadvantaged position
are unable to approach the court for relief.
In Hussainara Khatoon v State of Bihar3 is one of the leading judgments related to
judicial activism in India. In this case, a number of under trial prisoners were kept in
various jails of Bihar for several years. The Court ordered that all such prisoners whose
names were submitted to the court should be released forthwith.
In Murli Deora v. Union of India4 , the Supreme Court on the PIL filed by the petitioner
directed all states and Union territories to immediately issue orders banning smoking in
public places and public transports including railways.
In M. C. Mehta v. Union of India5, the Supreme Court directed the Shriram Food and
Fertilizer Company to take all necessary safety measures before reopening of the plant.
The management was directed to deposit a sum of Rs. 20 lacs by way of security for payment of
compensation claims of the victims of oleum gas leak with the Registrar of the Court.
In Vishaka v. State of Rajasthan6, the Supreme Court laid down an exhaustive guideline for
prevention of sexual harassment of working women in place of their work. The court held that it
is the duty of the employer to prevent sexual harassment of working women.
2. Judicial review
Judicial review is a court's ultimate ability to declare unconstitutional and hence
unenforceable any act of legislatures or executives, such as a) any statute, b) any official action
based on a law, and c) any other action by a public official that it believes to be in contradiction
with the constitution. In India, courts have a constitutional obligation to interpret the

3
Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81
4
Murli Deora v. Union of India 2001 Supp. (4) SCC 650
5
M. C. Mehta v. Union of India 1987 SCR (1) 819
6
Vishaka v. State of Rajasthan AIR 1997 SC 3011

2
constitution and declare laws invalid if they are proven to be in violation of any
constitutional requirements. The following instances vividly highlight the nature, scope, and
significance of the Supreme Court of India's role in preserving the supremacy of the constitution.
"In India, the constitution is supreme," the court stated in A. K. Gopalan v. State of
Madras, "and a statute law to be legal, it must in all situations be in compliance with the
constitutional requirements, and it is for the judiciary to decide if any enactment is
constitutional or not."
In Keshavananda Bharati v. State of Kerala7 the Hon’ble 13 Judge Constitution Bench of
Supreme Court held that legislature has power to amend the constitution except changing its
basic structure. The court has evolved the doctrine of basic structure in this case according
to which sovereign state has certain characteristics that cannot be erased by its legislature.
Judicial review extends to every governmental or executive action from high policy
matters like the President's power to issue a proclamation on failure of constitutional
machinery in the States like in S.R. Bommai v. Union of India8 case, to the highly
discretionary exercise of the prerogative of pardon like in Kehar Singh v. Union of India9
case or the right to go abroad as in Satwant Singh v. Assistant Passport Officer, New Delhi10
case. Judicial review knows no bounds except the restraint of the judges themselves regarding
justifiability of an issue in a particular case.
In Maneka Gandhi v. Union of India11 the judicial review has acquired the same or even wider
dimensions as in the United States. Now ‘procedure established by law ‘in Article 21 does not
mean any procedure lay down by the legislature but it means a fair, just and reasonable
procedure. A general principal of reasonableness has also been evolved which gives power to
the court to look into the reasonableness of all legislative and executive actions.

Supreme Court in Minerva Mills Ltd. v. Union of India12 observed that the constitution has
created an independent judiciary which is vested with the power of judicial review to determine
the legality of administrative action and validity of legislation. It is the solemn duty of the
judiciary under the constitution to keep different organs of the state within the limits of the
power conferred upon them by the constitution by exercising power of judicial review as
sentinel on the qui vive.

Ahmadi, C.J in L.Chandra Kumar v. Union of India13 has observed “The judges of the Supreme
Court have been entrusted with the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the balance of power
envisaged by the constitution is maintained and that the legislature and the executive do not, in
the discharge of their functions, transgress constitutional limits”.

7
Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461
8
S.R. Bommai v. Union of India AIR 1994 SC 1918
9
Kehar Singh v. Union of India AIR 1989 SC 653
10
Satwant Singh v. Assistant Passport Officer, New Delhi AIR 1967 SC 1836
11
Maneka Gandhi v. Union of India AIR 1978 SC 597
12
Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789
13
Chandra Kumar v. Union of India AIR 1997 SC 1125

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3. Independence of Judiciary
Supreme Court vide its series of judgments has ensured independence of judiciary. It has ensured
that the Judicial appointment, Transfer and Removal have no or minimum interference of
executive. The government passed 99th Constitution Amendment bill to establish NJAC for
appointment and transfer of judges of High Court and Supreme Court of India. However, the
Supreme Court by a 4: 1 majority struck down 99th Constitutional amendment. The Supreme
Court held that NJAC did not provide an adequate representation to the Judicial
Component.
4. Curative Petition
Even after a review petition filed under Article 1377 is rejected by the Court, which may not be
the end of the world. The court may still review the case under its inherent power but a very
restricted ground. Such a petition can be filed on very strong grounds such as
i. Variation of the principal of natural justice
ii. Abuse of the process of the court
In a judgement of far reaching consequence in Rupa Ashok Hurra v. Ashok Hurra14, a
five judge constitution bench of the supreme Court has unanimously held that in order to
rectify gross miscarriage of justice in its final judgment which cannot be challenged again
the Court will allow curative petition by the victim of miscarriage of justice to seek a
second review of the final order of the Court. However, the court has laid down certain
specific conditions for the court to entertain such a curative petition under its inherent
power to prevent floodgates of unnecessary petitions seeking their second review.
5. Post decisional hearing
In Maneka Gandhi v Union of India15, the idea of post decisional hearing was evolved by the
Supreme Court to maintain a balance between administrative efficiency and fairness to the
individual. The court held that the it would not be fair to exclude the application of Audi
Alteram Partem on the ground of administrative convenience and where pre decisional
hearing was not held, post decisional hearing to be conducted in order to ensure that the
principle of natural justice was followed during adjudication.
6. Right to Life
Article 21 of the Constitution of India provides right to life. However, over a period of
time, Supreme Court has subsumed a variety of rights under the umbrella of Right to life.
Some of these rights are as below
a) Right to Privacy16: In a case, Supreme Court held that violation of privacy amounts to
violation of right to life guaranteed under the Constitution.
b) Right to travel abroad17
c) Right to get Pollution Free Environment18
d) Right to free legal aid19
e) Right against solitary confinement20

14
Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771
15
Maneka Gandhi v. Union of India AIR 1978 SC 597
16
Kharak Singh v. State of Uttar Pradesh
17
Satwant Singh v. Asst. Passport Officer, New Delhi
18
Subhash Kumar v. State of Bihar, M. C. Mehta v. Union of India
19
M. H. Hoskot v. State of Maharashtra
20
Sunil Batra v. Delhi Administration

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f) Right of speedy trial21
g) Right against illegal arrest and custodial death22
7. Capital Punishment in rarest cases
Death penalty or Capital punishment is the harshest punishment in the Indian penal Code. No
other punishment deters man so effectually from committing crimes as the punishment of death.
However, the death sentences are rarely given in the Indian criminal courts.
In the case of Bachan Singh vs State Of Punjab23 , the Supreme Court held that capital
punishment shall be given in the “rarest of the rare” case. However, what constitutes the “rarest
of the rare cases” is not prescribed by the Supreme Court or by the legislature.
In the case of Mithu v. State of Punjab24 , the Supreme Court held that the mandatory death
penalty is invalid and unconstitutional in nature. However, no comments were made on the
consequent legislation for drug and criminal offences wherein the death penalty is considered
mandatory. But at the same time, Indian courts actually applied the mandatory death penalty for
these crimes.
IMPACT OF JUDICIAL ACTIVISM IN INDIA
Judicial activism in India has significantly influenced the country's socio-political landscape. It
empowers the judiciary to interpret laws creatively, ensuring justice even in cases where
legislation may be lacking or outdated. This activism has led to landmark judgments promoting
fundamental rights, environmental protection, and social justice, notably in cases involving
human rights, environmental conservation, and government accountability. However, critics
argue that it sometimes blurs the separation of powers, as courts may overstep legislative and
executive domains. While judicial activism has advanced democracy and accountability in India,
the debate continues over balancing judicial intervention and respecting institutional boundaries.
CONCLUSION
Judicial activism is a tool of Social engineering and an example of legal realism. Judicial
activism is more a matter of compulsion rather than choice. This authority of judicial
review bestowed on these Courts, to announce orders and legislations as violation of the
Constitution, is referred to be a fragment of the fundamental arrangement of the Indian
Constitution. Judicial Activism has a great impact on the legal front and taking a look at the
after-emergency legal action, it is evident that the Supreme Court has excelled and transcended
legal positivism. It is only when the other wings of the administration shy away from
carrying out their responsibilities and performing their statutory duty; the judiciary has to step
in. The objective behind judicial intervention is not just to protect larger public interest or
safeguard the cell being of an individual but to restore people’s faith in the justice delivery
system.

21
Husstainara Khatoon v. State of Bihar
22
D. K. Basu v. State of West Bengal
23
AIR 1980 SC 898, 1980 CrLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145
24
1980 2 SCC 684