Judicial Activism In

India : Critical Study

From A Legal Aspect








Submitted By:
Name: Rudra Dutta
Enrolment No: A3211110069
Batch: 2011-2016
Semester: 7

Acknowledgements

This project could never have been possible without the help, guidance and
cooperation of my teachers, family members and many others.
Miss. Bhavana Batra, my teacher was extremely kind to me throughout. She gave
me all the support in the world to do the project unhampered. Her insistence on
clarity of expression and logical formulation has been a constant reminder to me. I
have gained valuable learning experience under her supervision.
I would like to acknowledge the able guidance of our esteemed director
Maj.Gen.Nilendra kumar and deputy director Dr.Kanwal D.P.Singh.
The work is an outcome of an unparallel infrastructural support that I have
received from Amity Law School.
I take this opportunity to thank the library staff of the Amity Law School who
helped me to collect the data for the same.
It would never have been possible to complete this study without an untiring
support from my family.










Table Of Contents

Introduction
Position in India
Judicial Activism: The Constitution
Scope Of Judicial Activism In India
Judicial Activism: Important Case Laws And Recent Examples
Criticism of Judicial Activism:
Conclusion
Bibliography

Introduction

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.Though the history of judicial activism dates back to 1803 when concept of
Judicial review was evolved by chief justice Marshall in celebrated case of
Marbury v/s Madison.
The emergence of judicial review gave birth to a new movement which is known
as judicial activism.

Definition
Black Law Dictionary defines judicial activism as a "philosophy of judicial
decision making whereby judges allows their personal views about public policy
among other factors to guide their decision".
Exercise of unconventional jurisprudence or creative approach of judiciary can be
called as judicial activism for a instance in India the Supreme Court has treated
even a letter as a writ petition and has passed appropriate orders. This concept has
turned into a important means to enhance the applicability of a particular
legislation for social betterment and also to bring improvement in the concerned
state machinery.
We can say that judicial activism has turned a judge into a social activist,
environmental activist, political activist etc. Basic purpose is, to bring the justice to
the poor people at their doorstep.





Position in India

Indian constitution itself provides scope for emergence of judicial activism by
virtue of Articles 13, 32, 226, 141, 142. This term was explained and recognized
by the Supreme Court in Golaknaths case wherein the court laid down the judicial
principle of Prospective Overruling by giving wider beneficial interpretation of
Article 13of the constitution.
In real sense the history of judicial activism in India began in late seventies when
the strict rule of locus standi was given a final rest in S.P Gupta v/union of India
1
,
popularly known as Judges transfer case. In this case Justice Bhagwati better
known as champion of PIL, inter alia observed where a legal wrong or legal
injury is caused or threatened to a person or determinate class of persons and as
such person or determinate class of person is by reason of poverty ,helplessness or
disability of socially or economically disadvantaged position ,unable to approach
the court of relief ;any member of public can maintain an application for an
appropriate direction, order or writ in the High Court under Art 226 and in
Supreme Court under Art 32,seeking judicial redress for the legal wrong or injury
caused to such person.










1
1981 supp scc 87
Judicial Activism: The Constitution

Articles 13, 32, 226,141, 142 are of considerable importance in judicial activism.
Article 32 makes the Supreme Court as the protector and guarantor of the
fundamental rights.
Article 13 conferred wide power of judicial review to the Apex court. In the
exercise of the judicial review it can examine the constitutionality of executive or
legislative act the high courts have also the same power in this regard.
Art 141 indicates that the power of the Supreme Court is to declare the law and not
enact it, but in the course of its function to interpret the law, it alters the law.
Art 142 enables the Supreme Court in exercise of its jurisdiction to pass such order
or make such order as is necessary for doing complete justice in any cause or
matter pending before it.
Through these Articles the supreme court as well as high courts have played a
significant role in redressal of several social issues, environmental issues etc.










Scope Of Judicial Activism In India

If we look at the decision given by the Supreme Court in several PIL, it is evident
that most of the PIL extends to environmental pollution, convicted prisoners and
under trials, bonded labourers, unorganized workers, pavement dwellers, personal
liberty, atrocities on women and inhuman treatment of children etc.
The court has given several important directions to the executive as well as to the
legislature at the instance of the PIL.
The Supreme Court has now realized its proper role in a welfare state and it is
using this strategy for it.
The approach of judicial activism has now come to stay as a major strategy for
justice to weaker segments of society. It is not only confined to fundamental rights
but also seeks to redress any legal wrong or injury actually caused threats.













Judicial Activism: Important Case Laws And
Recent Examples

The efforts of the Apex court in environment pollution control through PIL is
indeed laudable, particularly when the legislature is lagging behind in bridging the
lacuna in the existing legal system and administration is not well equipped to meet
the challenge.
In M.C Mehta v/s Union of India
2
the Supreme court at the instance of a PIL,
directed the company manufacturing hazardous and lethal chemicals and gases
posing danger to health and life of workmen and people living in its
neighbourhood, to take all necessary safety measures before reopening the plant.
In another case of M.C Mehta v/s UOI
3
i.e. pollution of Taj Mahal, the
petitioner through PIL tried to draw the attention of the court towards the
degradation of the Taj Mahal due to the atmosphere pollution caused by a number
of foundries ,chemically hazardous industries established and functioning around
the Taj Mahal .Mr. Justice Kuldip Singh better known as green judge for his
decisions on pollution ,held that the 292 polluting industries locally operating in
the area are the main source of pollution and directed them to change over within
fixed time schedule to natural gas as industrial fuel and if they could not do so they
must stop functioning beyond 31st Dec 1997 and be reallocated alternative plots in
the industrial estate outside Taj Trapezium.
In Indian council for Enviro-Legal Action v/s UOI
4
the Supreme court has held
that if by the action of private corporate bodies a persons fundamental right is
violated the court would not accept the argument that it is not state within the
meaning of Art.12 and therefore, action cannot be taken against it. If the court
finds that the Government or authorities concerned have not taken the action
required of them by law and this has resulted in violation of the right to life of the

2
1986, vol 2 scc 176
3 AIR 1997 SC 735
4 1996,3SCC,212
citizens, it will be the duty of the court to intervene. In this case an
environmentalist organization filed a writ petition under Art.32 before the court
complaining the plight of people living in the vicinity of chemical industrial plants
in India and requesting for appropriate remedial measures.
In people union for Democratic Rights v/Union of India
5
i.e. Asiad case the
court has held that the state is bound to ensure the observance of the labour
legislation enacted for securing the workmen a life of human dignity and inaction
on part of state in implementation of such legislation would amount to denial of the
right to live with human dignity enshrined in Art 21.
In case of Vishkha V/s state of Rajasthan
6
, the SC has made it clear that the
sexual harassment of working women amounts to violation of right of gender
equality and right to life and personal liberty. As a logical consequence it also
amounts to the violation of right to practice any profession, occupation or trade.
The SC laid down certain guidelines to be observed at all work place or other
institutions until legislation is enacted for the purpose. These guidelines would be
treated as the law declared by SC under Art 141.
This case law provided relief to millions of working women who were compelled
to remain silent at their working place even though they face sexual comment,
harassment etc. In fact this case fills the lacuna in law to deal with this kind of
problem facing by working women at their working place.

Ban on smoking in public places:
In a significant judgment the SC has directed all states and union territories to
immediately issue orders banning smoking in public places and public transports,
including railways. The centre has introduced an anti smoking bill in the
parliament.

5
AIR1982SC 1473
6 AIR 1997 SC3011
In M.C Mehta v/s State of Tamil Nadu
7
it has been held that the children cant be
employed in match factories which are directly connected with the manufacturing
process as it is a hazardous employment within the meaning of employment of
children Act 1938.They can however be employed in place of manufacture to
avoid exposure to accidents. Every child must be insured for a sum of five
thousands and premium to be paid by employer as a condition of service.
In the case of National Human Rights Commission v/s State of Arunachal
Pradesh
8
the Supreme Court held that every citizen or non-citizen is entitled to the
right of life and personal liberty guaranteed by Art21.

Recent examples of Judicial Activism
2G Spectrum and commonwealth scam cases are glaring examples to show that
how PIL can be used to check the menace of corruption in Indian Administration.
In both these cases matter was initiated at the instance of public spirited person by
way of PIL
On 2nd february2012 the SC court has taken an unprecedented step and cancelled
122 2G licenses distributed by government in 2008 to different telecome
companies.
Often criticised for alleged judicial overreach, the Supreme Court justified its order
cancelling 122 licenses for 2G-spectrum, saying it was duty-bound to strike down
policies that violate constitutional principles or were contrary to public interest.
An apex court bench said this was needed to ensure that the institutional integrity
is not compromised by those in whom the people have reposed trust and who have
taken oath to discharge duties in accordance with the Constitution and the law
without fear or favour, affection or ill will and who, as any other citizen, enjoy
fundamental rights but is bound to perform duties It said, There cannot be any
quarrel with the proposition that the court cannot substitute its opinion for the one

7 AIR1991SC 417
8 AIR 1996 SC 1234
formed by the experts in the particular field and due respect should be given to the
wisdom of those who are entrusted with the task of framing the policies.
However, when it is clearly demonstrated before the court that the policy framed
by the State or its agency/instrumentality and/or its implementation is contrary to
public interest or is violative of the constitutional principles, it is the duty of the
court to exercise its jurisdiction in larger public interest and reject the stock plea of
the State that the scope of judicial review should not be exceeded beyond the
recognised parameters, the bench added.
Referring to the PILs filed by the Centre for Public Interest Litigation and Janata
Party chief Subramanian Swamy, it said: When matters like these are brought
before the judicial constituent of the State by public spirited citizens, it becomes
the duty of the Court to exercise its power in larger public interest
While admitting that TRAI was an expert body assigned with important functions
under the 1997 Trai Act, the bench said, the Trai in making recommendations
cannot overlook the basic constitutional principles and recommend which should
deny majority of people from participating in the distribution of state property.
Holding that spectrum was a natural resources, the court said natural resources are
vested with the government as a matter of trust in the name of the people of India
,and it is the solemn duty of the state to protect the national interest, and natural
resources must always be used in interest of the country and not private interest.

In Noida land acquisition case the Supreme Court cancelled the acquisition of
land by U.P government as it was acquired for industrial purpose but it was given
to builders for making apartments. The court ordered that land should be revert
back to farmers from whom land was acquired.
Often Supreme Court and different high courts pass order for CBI investigation in
several cases. Under the law these power lies with the governments. This is again
an example of judicial activism.
The Supreme Court has also played a significant role in case relating 2002
Gujarat riot.
Criticism of Judicial Activism:

The concept of judicial activism has been put under scanner by the critic since its
inception. It has been criticized on several counts. One such criticism is that the
PIL strategy is a status quoits approach of the court to avoid any change in the
system and so it is a painkilling strategy which does not treat the disease. It is
argued that the problems of the poor ,disadvantaged and the deprived cannot be
solved by any trickle down method, therefore whatever the court is doing in PIL is
merely symbolic, simply to earn a legitimacy for itself which it has lost over the
years..
The critics have further argued that because of judicial activism, separation of
power has been under stake. The judiciary is interfering in the field of executive
and several times it has become difficult for executive to deal with new kind of
problem with new strategy as it is anticipated that judiciary will struck down this
type of strategy
It is further argued that by extending its jurisdiction through PIL the court is trying
to bite more than what it can chew. Lawyers have started complaining that much of
the courts time is being consumed by PIL and hence for the court a postcard are
more important than a fifty-page affidavit. It is further argued that at a time when
the figures of pending cases before the courts are astronomical, this new area of
litigation would spell a total collapse of the judicial system in India as it would
open floodgates of litigation. However, the history of PIL in India does not support
this apprehension. Contrary to the popular belief fresh PIL filing has registered a
decline in the subsequent years.
According to one opinion, the misuse of PIL has reached ridiculous limits and
petitions are being filed all over the country before the writ courts for matters like
student and teacher strike, shortage of buses, lack of cleanliness in hospitals,
irregularities in stock exchange, painting of road signs, Dengue fever,
examinations and admissions in universities and college etc. one can go on but the
list will not be exhaustive. Classical case came up when PIL petition was filed in
Delhi High Court to seek direction to the United Front Government at the centre
(1997) to form a coalition cabinet with the congress. A petition (1999) was filed
for invalidating no-confidence vote against the Vajpayee Government.
Power and publicity apart, many judges have to entertain PIL because of the
liberalization of the rule of locus standi and the concept of social justice for the
poor, oppressed and exploited sections of the society. Thus indiscriminate use of
this strategy is bringing it into disrepute because it has become the privilege of the
privileged to have access to the court. In fact, majority of the petitions either
should not have been filed or should not have been entertained. PIL must be
confined to cases where justice is to be reached to that section of the society which
cannot come to the court due to socio-economic handicap or where a matter of
grave public concern is involved.

















Conclusion

Even if all these criticism is valid no one would suggest to abolish this strategy
which the courts have innovated to reach justice to the deprived section of the
society. Anything contrary would be like suggesting the abolition of marriage in
order to solve the problem of divorce. This socio-economic movement generated
by court has at least kept alive the hope of the people for justice and thus has
weaned people away from self help or seeking redress through a private system of
justice .It is necessary for sustaining the democratic system and the establishment
of a rule of law in society. Therefore, one has to be both adventurous and cautious
in this respect and the judiciary has to keep on learning mostly by experience.
Public Interest litigation must not be allowed to degenerate into Private Publicity
or Political or Paisa Interest litigation. Finding the delicate balance between
ensuring justice and maintaining institutional legitimacy is the continuing
challenge before the higher judiciary.
Needless to emphasize that the strategy of PIL must be used by the courts
carefully, prudently and with discrimination because any discriminate use of it
would bring it into contempt both from the public and the government .Therefore,
the correct approach of the court in PIL cases should be a judicious mix of restraint
and activism determined by the dictates of existing realities. Any misuse of this
strategy must be strongly discouraged by the courts.
It is for this reason that the Apex court in BALCO Employees Union v/s Union
of India
9
clearly held that administrative powers cannot be challenged in PIL
unless there is a violation of Art 21 of the constitution and persons adversely
affected are unable to approach the court. This limits the power of the court and the
initiative of a busybody. Furthermore the Apex court in order to check the misuse

9 (2002)2SCC333
of PIL has laid down several guidelines in case of State of Uttranchal v/sBalwant
Singh Chufal and others
10
reported in (2010)3 SCC 402, which are as under:
The courts must encourage genuine and bonafide PIL and effectively
discourage and curb PIL filed for extraneous considerations.
Instead of every individual Judge devising his own procedure for dealing
with PIL, it is appropriate for each High Court to properly formulate rules
for encouraging genuine PIL and discouraging PIL filed with oblique
motives.
The courts should be prima facie verify the credentials of the petitioner
before entertaining a PIL.
The court should be prima facie satisfied regarding the correctness of
contents of the petition before entertaining a PIL.
The courts should be fully satisfied that substantial public interest is
involved before entertaining the petition.
The court should ensure that petition which involves larger public interest,
gravity and urgency must be given priority over other petitions.
The courts before entertaining PIL should ensure that PIL is aimed at
redressal of genuine public harm or public injury. The court should also
ensure that there is no personal gain, private motive or oblique motive
behind filing PIL.
The courts should also ensure that petitions filed by busybodies for
extraneous and ulterior motives must be discouraged by imposing exemplary
costs or by adopting similar novel methods to curb frivolous petitions and
petition filed for extraneous considerations.

The critics of judicial activism should remember the fact that in India until the
Public Interest Litigation was developed by the Supreme Court; justice was only a
remote and even theoretical proposition for the mass of illiterate, underprivileged
and exploited persons in the country. At a time of crucial, social and economic
transformation, the judicial process has a part to play as a midwife of change. The
issue of Public Interest Litigation touches a matter of the highest importance

10 (2010)3 SCC 402
literally affecting the quality of life of millions of Indians. Besides this, it will also
spread wide the canvas of judicial popular support and moral authority especially
at a time when other institutions of governance are facing a legitimate crisis.
In underlining the need for judicial activism to end class and ethnic exploitation,
the International Workshop on Role of the Judiciary in Plural Societies has
echoed the emerging sentiments in favour of PIL.The need for judicial activism
was also stressed in the task of balancing interest of ethnic groups as both the
executive and the legislature would invariably reflect the aspirations of the
majority community. Judicial inaction in such circumstances could aggravate
perceptions of injustice and eventually lead to violence. It was perhaps as much
recognition of these dangers as it was a response to considerations of social justice
that witnessed the growth of Public Interest Litigation in India.
It is true that the independence of the judiciary is the first concern of the
constitution but how far a judge can go is not without limits. Court is called upon
to dispense justice according to the constitution and the law of the land .Therefore,
in activity it must not forget the limits of its power that call for self-restraint and in
periods of restraint it must not be unmindful of its constitutional duty and
obligation. Fact remains that the judiciary in India has performed well, lapses
notwithstanding.










Bibliography

Judicial Activism, Blacks Law Dictionary
Jayakumar N. K., Lectures in Jurisprudence, Butterworths.
Dhyani S.N., Jurisprudence: Jurisprudence and Indian Legal theory
Dhyani S. N., Fundamentals of Jurisprudence
V.D. Mahajan, Jurisprudence and Legal theory (1996 re-print), Eastern, Lucknow