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Judicial Activism in India

Introduction about judicial activism

A judiciary is an autonomous entity which is impartial, neutral, and unprejudiced. It operates within the confines of the constitution, which is established by the principle of separation of powers. It interprets the supreme law, the constitution, and, where necessary, supports the rule of law and the constitutional principles. Judicial activism refers to judicial decisions that are dependent on the Judges' political and personal rationale and prudence in deciding the case. It is a legal term that refers to court decisions that are based, in part or entirely, on the Judge's political or personal considerations rather than current or established legislation. The term "judicial activism" has a variety of connotations. The common law practice views courtroom litigation as an adversarial procedure in which the pleaders' submissions are used to form the overall direction of the proceedings. The judge is cast in a passive position in this conception, and the aim is to objectively assess the claims made by both parties. The proper scope and limits of the judicial position – especially that played by the higher judiciary, which consists of the Supreme Court of India at the Centre and the High Courts in the various States that make up the Union of India – have been the subject of heated debate. The dynamics of the debate have been narrowly framed with regard to questions about the effectiveness and validity of judicial interventions in the long run, as well as maintaining an effective "separation of powers" between the executive, legislature, and judiciary.

Judicial activism, according to Black's Law Dictionary, is a judicial decision-making philosophy in which judges allow their personal opinions on public policy, among several other things, to direct their decisions. Judicial activism arose from the process of judicial review, which can be traced back to the unwritten constitution of the Britain during the Stuart period (1603-1688). Through the advocacy of Justice Coke in 1610, the right of Judicial Review was recognized for the first time in Britain. In India, judicial activism means that the Supreme Court and high courts, but not lower courts, have the power to find laws unconstitutional and invalid if they violate or are incompatible with one or more constitutional clauses.

Scope of Judicial Review

To give effect to the individual and group rights guaranteed in the text of the Constitution in post-independence India, specific provisions for "judicial review" were required. The clause related to it was identified as the "heart of the Constitution" by Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly. Article 13(2) of the Indian Constitution states that the Union or the States shall not make any law that deprives or restricts any of the fundamental rights, and that any law passed in violation of this mandate shall be void to the extent of the violation.

Though judicial review of administrative decisions has developed along the grounds of common law doctrines like "proportionality," "legitimate expectation," "reasonableness," and natural justice principles, the Supreme Court of India and various High Courts have been given the power to rule on the constitutionality of legislative and administrative actions. In the vast majority of cases, judicial review is used to uphold and implement the constitutional rights secured in Part III of the Constitution.

Since Article 246 of the Constitution, read with the 7th schedule, envisions a definite demarcation as well as a zone of interaction between the law-making powers of the Union Parliament and the various State Legislatures, the higher courts are also approached to rule on issues of legislative competence, often in the sense of Centre-State ties. As a result, the scope of judicial review in Indian courts has grown in three directions: first, to keep things fair in administrative action, second, to safeguard citizens' constitutionally enshrined fundamental rights, and third, to rule on issues of legislative competence between the centre and the states. Article 32 of the Constitution gives the Supreme Court of India the authority to uphold these fundamental rights. It gives people the right to go directly to the Supreme Court to seek relief when their constitutional rights are violated.

With the rise of Public Interest Litigation (PIL) in recent decades, Article 32 has been increasingly implemented to form novel solutions like a "continuing mandamus" to ensure that executive agencies follow judicial orders. Judges have also imported private law remedies such as "injunctions" and "stay orders" into what are basically public law related cases in this area of litigation. Successful appeals to statutory provisions result in reliefs such as laws being struck down or even passing down, the latter meaning that courts oppose a specific approach to the interpretation of a statutory provision rather than opposing the provision in its entirety.

The category of Public Interest Litigation (PIL) has been synonymous with its own ‘people-friendly' practises after the first few cases in the late 1970s. The Court permitted social movements and lawyers to bring cases on their behalf because the aim was to increase access to justice for those who were otherwise too poor to go to court or were unaware of their legal rights. The essence of trials in Public Interest Litigation (PIL) does not quite fit into the agreed common-law system of adversarial litigation. The courtroom dynamics are quite different from ordinary civil and criminal appeals. In most public-interest cases, judges play a much more involved role in the literal sense, raising questions to the parties and exploring possible solutions. The orientation of the proceedings is typically more akin to collaborative problem-solving than an acrimonious contest between the counsels, particularly in actions seeking directions for ensuring governmental transparency or environmental protection.

Milestones achieved through Judicial Activism

The case of Hussainara Khatoon (I) v. State of Bihar, involved a series of articles published in a well-known newspaper, the Indian Express that revealed the misery of undertrial prisoners in Bihar. An advocate filed a writ petition to draw the Court's attention to the horrible condition of these detainees. Many of them had spent more time in prison than the maximum sentences allowed for the crimes they had been charged with. The advocate's locus standi to maintain the writ petition was approved by the Supreme Court. Following that, the Court issued a series of rulings in which the ‘right to a speedy trial' was considered to be an indispensable and essential part of the security of life and personal liberty. In another case, Ms. Sheela Barse, a journalist, raised the plight of women detained in Bombay police jails. She said that they had been the victims of incarceration abuse. The matter was brought before the court, and the Director of the College of Social Work in Bombay was given instructions. He was told to go to the Bombay Central Jail and interview numerous female inmates to see whether they had been tortured or ill-treated. In this respect, he was ordered to send a report to the Court. The Court issued orders based on his findings, including that female inmate be held only in designated female lock-ups supervised by female constables and that convicted females be interviewed only in the presence of a female police officer.

With the ruling in the case of Sunil Batra v. Delhi Administration, public interest litigation gained a new dimension: "epistolary authority." It began with a letter submitted by a detained inmate to a Supreme Court Judge. The Supreme Court admitted an appeal by an advocate in Parmanand Katara v. Union of India, which highlighted a news item titled "Law Helps the Injured to Die" published in a national newspaper, The Hindustan Times. Many hospitals and physicians declined to treat people involved in car accidents and other types of accidents unless certain procedural formalities were fulfilled in these medico-legal cases, according to the complainant. Despite the formalities required by procedural criminal law, the Supreme Court ordered medical institutions to provide immediate medical assistance to such injured persons.

“No person shall be deprived of his life or personal liberty except in accordance with the procedure provided by law,” says Article 21 of the Indian Constitution. In the early years of the Supreme Court, this article was interpreted to mean that ‘personal liberty' could be curtailed as long as there was a legitimate prescription for it. The Supreme Court had ruled in A.K. Gopalan's case that state agencies could use "preventive detention" as long as it was approved by a legislative measure (e.g., law or an ordinance), and that the Court could not review the measure's fairness. For several years, this narrow interpretation of Article 21 held sway before it was overturned in Maneka Gandhi's case. In that ruling, it was held that governmental restrictions on ‘personal liberty' should be weighed against the constitutional guarantees of justice, non-arbitrariness, and reasonableness set out in Articles 14, 19, and 21. The Court established a "inter-relationship of rights" principle to hold that any government action that restricts one of these rights must also meet the threshold for restricting all of them. The assurance of "substantive due process" was therefore introduced into the language of Article 21 by the Courts.

Notably, the Supreme Court has repeatedly stated that both the Fundamental Rights and the Directive Principles must be viewed in a consistent manner.

Only two years before the emergency declaration, the Supreme Court of India ruled in the landmark Keshwananda Bharti case that the executive had no right to intervene and tamper with the constitution's basic structure. The idea of judicial activism began to gain more influence from there, despite the fact that the then-Prime Minister Indira Gandhi's exigency could not be stopped by the judiciary.

Access to free education has also been accepted by the court as a justiciable right. This decision sparked a constitutional amendment that inserted Article 21-A into the text of the Constitution, ensuring the right to elementary education for children aged 6 to 14. In interpreting the prohibitions against forced labour and child labour, the courts have also referred to Directive standards. While the implementation of these rights is lacking, the symbolic importance of their constitutional status should not be overlooked.

The unique model of public interest litigation that has emerged in India is aimed not only at issues such as consumer rights, gender equity, environmental degradation, and ecological devastation, but also at creating social and political space for the poor and other vulnerable groups in society. Courts have ruled on cases involving a variety of rights and freedoms, including food availability, access to clean air, healthy working practises, government participation, affirmative action, anti-discrimination measures, and prison conditions control, among others.

Objections to Judicial Review

However, in many jurisdictions, concerns have been raised regarding the correct interpretation and extension of the term "judicial review." In a democratic order, there are two principled challenges to the concept of "judicial review." The first concept is that, as an unelected entity, the judiciary is not accountable to the people by any institutional framework. Most countries nominate judges by appointment or nomination processes, with ordinary citizens having no say in the process. Allowing the judiciary to rule on the constitutionality of laws enacted by a popularly elected legislature is seen as a breach of the concept of "separation of powers." Judges using their own authority to grant solutions in places where they lack experience are often met with scepticism. This criticism views the judiciary's position as solely that of settling conflicts between parties while deferring to the prescriptions of the elected legislature. According to some authors, fact-situations of this nature include tensions between the meanings of the terms "constitutionalism" and "democracy." As a result, it is hypothesised that the provision for "judicial review" gives the phrase "constitutional democracy" a self-contradictory twist.

Based on the social profile and index of the country, the safeguards which take the form of special treatment for racial, religious, and cultural minorities, as well as proactive initiatives aimed at the advancement of historically marginalised groups and poorer parts of society. These protections, which are intended to address social disparities based on factors such as faith, caste, gender, class, and area, among others, have distinct socioeconomic dimensions. As a result, the Courts' position in upholding constitutional principles extends beyond the protection of explicitly established civil-political rights that can be litigated by individual people to include a constantly changing understanding of "community rights," which must necessarily include socio-economic aspects.


In conclusion, I'd like to state that the idea of judicial activism has both positive and negative aspects. This idea of judicial activism loses its importance and essence if the judiciary interferes too much in the workings of other government organs and seeks to overstep its constitutional powers. The judiciary often rewrites personal views in the name of advocacy, and the power separation principle is being overthrown.

Although judicial activism is seen favourably in light of legislative failures, overreaching the jurisdiction of other government institutions is seen as an intrusion into the proper functioning of democracy. Its importance, however, stems from the institution's position as a source of hope for those who have been wronged. The importance of judicial activism in delivering justice to the underprivileged parts of society, indigent people, economically and educationally backward classes, victims of human trafficking, and under trial prisoners cannot be overstated. The advancement of judicial activism could be the only way to ensure that constitutional rights are properly implemented.

Between advocacy and overreach, there is a fine line to be drawn. The judiciary often intervenes too much in the process of judicial reform and represents its personal interests in the process of providing justice. The primary role of the judiciary is to interpret the law, but instead of doing so, the courts start making the law, issuing rules and directives that must be followed.

Conflict arises between the legislative and judiciary as a result of judicial overreach, and the legislative seems inactive or incompetent to the citizens. Furthermore, judicial overreach destroys the separation of powers, which is the foundation of democracy. To protect humanity from legislative and executive dictatorship, an activist court is unquestionably more effective than a legal positivist-conservative court. When elected officials struggle to establish a welfare state, the position of the judiciary becomes critical. However, the judiciary cannot interfere in state affairs simply to demonstrate its superiority.


By- Ananya Yadav

College- Bennett University

Course- BALLB

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