Term paper

JUDICIAL ACTIVISM AND LEGISLATION IN INDIA

Submitted by
LOKESH SWAMI

Centre For Political Studies

School of Social Sciences

JAWAHARLALA NEHRU UNIVERSITY

New Delhi 110067

onstitution provides legal framework for the government, its strength could be determined by

ability of the constitution to create healthy social system and transformation of its social order. The court
act as the supreme protector of the constitution and Judicial system plays vital role in interpretation
administering of human rights. If we move towards constitutional interpretation it is to be noted that it is
based on specific principle and philosophy. A democratic society lives by certain values such as liberty,
individual dignity, rule of law, constitutionalism etc. So it is the duty of the judicial to comprehend the
constitution and law to protect democratic values. The positivist approach of interpretation by Indian
Judicial ensure from traditional theory that a judicial do not make law but the declare law. Judicial
activism gave a new way to liberal judicial approach to constitutional interpretation. This paper will
focus on rise and role of judicial activism.

Understanding judicial activism

The term have multiple meaning and it do not have particular definition, simply its
the progressive judicial thinking in which court play vital creative active role on the
judicial to manage provisions which are given in PART III of the constitution. So
judicial activism is essential for rule of law, it is also very vital for preservation of
functional democracy and justice. According to P.N. BHAGWATI judicial activism is :
The judge infuses life & blood into the dry Skelton provided by
legislature & creates a living organism appropriate & adequate to meet the needs
of the society. The Indian judicial has adopted an activist goal oriented approach in
the matter of interpretation of fundamental rights. The judicial has expanded the
frontiers of fundamental rights and the process rewritten in some part of the
Constitution through a variety of techniques of judicial activism. The Supreme
Court of India has undergone a radical change in the last few years and it is now
increasingly identified by the justice as well as peoples last resort for the purpose
bewildered(1)
Therefore, judicial activism is the creativeness of the judicial which led to help in
the proper functioning of the government as it monitors the judicial changes and
act on them.
UNDERSTNDING DEVELOPMENT OF JUDICIAL ACTIVISM

To understand judicial activism we have to focus on certain factors such as

creativity, limits, modes and legitimacy of law making by courts. So judicial
interpretation always focus on law making which depends on judges that how
creative they think about particular law. Judicial activism is the consequences of
the particular situation. Judges try to fill the gap which is not covered by legislation
through judicial activism, they plays a role of an activist. In this context I want to
quote Olive Wendell homes.
I recognize without hesitation that judges must and do legislate, but they do so
only interstitially; they are confined from molar to molecular motions. A commonlaw judge could not say, I think the doctrine of consideration a bit of historical
nonsense and shall not enforce it in my court. (2)
So judges must make law but in a different way from legislatures. Judicial activism
started rising from mid-seventies when many judicial changes to took place. Role of
judicial as unelected representation of people took place after 1975.Some of the
important names in judicial activism is JUSTICE A.S. ANAND,P.N. BHAGWATI ,O
CHINAPPA,JUSTICE VERMA,JUSTICE KULDEEP .Therefore judicial activism is
innovations and creativeness of judicial .
UNDERSTANDING DIMENSION OF JUDICAL ACTIVISM
Our independent judicial not only manages constitution but also plays positive vital
role in development and social change. Since independence, Supreme Court
monitored and guided whenever legislative and executive failed on expectations of
people. Higher judicial comes as protector of constitution. Whenever social norms
change, laws also to be reinterpreted. Judicial activism is the path of exercising
judicial power which motivates the judges to cross the traditional boundary and act
according to necessity and demands. When we consider welfare state, we have to
keep in mind that the concept of welfare state cannot be possible without judicial
activism. Judicial activism not only helps in interpreting the law but also help in
making the law time to time. It is emphasized by the Supreme Court that judicial
approach should be dynamic rather than static and should not be rigid.
Creative role of judges in constitutional management and development of law is
the base of judicial activism .From the above conversation it is understood that

judicial review targets at the interpretations within the parameter of constitution to

act on different economic and social changes
JUDICIAL ACTIVISM IN INDIA
Judges have been working in traditional circle of judicial system. Justice
A.M.AHMADI once said that
The initial years of Supreme court of India saw adoption of approach characterized
by caution and vigilance.
The recent growth of parliamentary system led to expand the criteria of judicial
activism. The role of judicial increased in recent time due to many reasons such as
growth of parliamentary system and statutory intervention in expansion of
legislation has brought about a parallel expansion of judge made law .The role and
scope of judicial law in the name of judicial activism paved way towards the growth
of active judicial role in declaring fundamental rights through constitutional
interpretation that greatly entrenched the potential creativity of judges. To
understand it in better way, we have to focus on vital factors which are legitimacy
of law, degree of creativity, limits and different modes. Judicial interpretation
always consist of some degree of law making, the function and creativity directly
depend on judges. The area which is not covered by legislation is separately
focused by judges, so they can fill up the gap which emerged due to legislative
interventions. Judicial activism has not been a spontaneous development; it is the
consequence of a situation which necessitated it .The area which is not covered by
legislation is covered by active role of judicial .Judges also guide on different
provision and changes to legislation, which shows us the active role of judicial in
proper functioning of government.
EMERGENCE OF JUDICIAL ACTIVISM
Upendra Baxis judicial activism talked about Indian supreme court enunciated in
seventies an unusual province and function for judicial review by declaring the
power of parliament to amend the constitution was subject to judicial review, it
may not extend to alternation of essential features of the basic structure of
constitution. The basic structure doctrine of 1973 in keshavnanda bharati case was

a landmark judgment of largest bench where constitutional amendments were

questioned if they were unconstitutional, more specifically; the bench said that you
cant amend the constitution in a way that it alters the fundamental premises of
constitutionalism. Those were rule of law, socialism, democracy, and secularism, it
characterized as part of basic structure. The period began in post emergency era
when the Indira Gandhi government infringed the rights of public by imprisoning
them without any reason. Judicial activism became more robust in 1990s when the
coalition governments came into existence and the parliament supremacy was
questioned by judiciary.
In a liberal democracy, marked by a colonial nature of state it was the judiciary
which was considered the arbiter of human rights. Today judicial activism has
certainly reached new height after the PIL,etc came to exist.
PARLIAMENTARY SOVEREIGNITY AND JUDICIAL REVIEW
The debate emerges between the constitutionalist and the democrats. The
constitutionalist says that the any constitutional change has to come in the ambit
of judicial scrutiny. That any change can be said to be unconstitutional if it do not
abides the constitution, and therefore must be subject to denial of passing. The
basic structure doctrine was not only used in the domain of constitutional domain
but also in ordinary amendments. The frequency of constitutional amendments has
not decreased after the basic structure doctrine but it and some of our most
significant amendments have taken place after that, like the anti-defection
amendment. Parliament has tried to make a supremacy over constitution by
majoritarian form of democracy. The tussle become more intense when National
judicial appointment commission bill was struck down and the explanation was that
it is coercing the independent nature of judiciary which is the basic structure of
constitutionalism.
Any democracy can only sustain when both the highest institutions i.e. judiciary
and parliament has a good relationship and work on philosophy of check and
balance. Therefore, contradictions are necessary and often inevitable but that must
be sorted out by consensus and deliberation not by authority.
CONCLUSION:

Judicial activism is a cornerstone of any vibrant Democracy and must be a tool to

curb the coercive power of state. It is a mechanism to assign values to civil society
and thereby, empower citizens. The pro active role can build the ethos by
propelling sense of dignity and integrity. It is one of the focal point of constitution
making and ought to share the power as parliament does. In Indian constitution
making, although in the beginning it was not the judiciary that was active but
constitution makers kept in mind that a independent judiciary is need of hour to
check the colonial nature of Indian state.

BIBLIOGRAPHY1. Indian Constitution cornerstone of nation, Granville Austin.

2. the oxford handbook of Indian constitution by sujit choudhary , madhav Khosla
and pratap Bhanu Mehta,2016,oup.
3.Iindias Living Constitution, Zoya Hasan et.al, permanent black,2006