JUDICIAL ACTIVISM

This is strictly a rough sketch of the topic and therefore you need to elaborate upon the
pointers mentioned below.

If one is to trace the evolutionary trajectory of the Supreme Court of India, there
seems to be a paradigmatic shift from a positivist to a proactive judiciary.
Activism is a heavily loaded term with possibilities of plural stand points and
interpretations. As Upendra Baxi rightly points out activism could essentially entail
two dimensions,that is, reactionary/regressive or progressive.
For instance, Nehruvian era activism on issues of land reform and right to property
and the pro-emergency activism in Shiv Kant Shukla case(where Supreme Court
pronouncement declined the protection of quintessential and inviolable Fundamental
Right of Life in the event of emergency) manifests/smacks of reactionary judicial
activism.
The anomic conjuncture that marks progressive judicial activism commences with
Golaknath1 and Keshavananda Bharati2 cases and culminates in a wholly different
genre of social action litigation(Baxi,Upendra).
According to Baxi,judicial activism is not just a matter of serial affirmation of
judicial power over other domains and instrumentalities of state power;it is as much
a narrative of evolution of new constitutional cultures of power. Judicial activism
in Baxis view constitutes a repertoire of contingent judicial and juridical
responses.
The two effective indices of assessing the nature of judicial activism in India could be
the nature of judicial review and the post 1980 wave of epistolary
jurisdiction/Public Interest Litigation.
Article 13(2) of the Constitution invests judiciary with the power of judicial
review(concept originated in England).In most simple terms, judicial review means
scrutiny of the acts of other organs of the government by the courts to make sure that
they act within the limits of their competence as drawn by the Constitution.
There are two models of judicial review: (A) Technocratic model in which judges
merely act as technocrats and hold a law invalid if it is ultra vires the powers of the
legislature.(B) In the second model, the court interprets the provisions of Constitution
liberally and in the light of the spirit underlying it keeps the Constitution abreast of
the times through dynamic interpretation.

1 In Golaknath Vs State of Punjab case(1967), Supreme Court pronounced a

landmark judgement stating Parliament cannot curtail any of the Fundamental
Rights enshrined in the Constitution.This was 180 degree legislation from the
earlier narrowly pronounced Shankari Prasad case.

2 Keshavananda Bharati vs.State of Kerala marks the zenith of progressive

judicial interpretation wherein Supreme Court underscores the inviolability of the
Basic Structure of the Indian Constitution.
 There exists a rich repertoire of cases that mark the milestones of judicial review in
India such as the (in)famous A.K.Gopalan case(where the Supreme Court narrowly
interpreted Article 21 of the Constitution),Golaknath case(1967),Keshavananda
Bharati case(Basic Structure doctrine),Maneka Gandhi case(1978; where SC
progressively interpreted Article 21,thus reversing its A.K Gopalan case),Minerva
Mills Case(where it buttressed the limits of the Parliaments Constituent powers),
Indira Gandhi vs.Raj Narain case (famously known as the Prime Ministers case),
Bommai case(wherein Supreme Court progressively interpreted the cautious exercise
of Article 356 and struck down the emergencies declared on Karnataka, Meghalaya
and Nagaland null and void),Ayodhya Case, Indra Sawhney case(where SC
endorsed caste as one of the primary indices of defining backwardness and reaffirmed
the 50 percent cap on reservations) ,Judges Case(pertaining the appointment and
transfer of judges. In the third Judges case of 1992, Supreme Court pronounced
collegium system for the supervision of the same) etc.
Post-emergency witnessed resurrection of judiciary from the debilitating and berating
shackles of politicisation and the primary vector of this make over proved to be the
emergence of epistolary jurisdiction/PIL. Disturbed by the blunt realities of
everyday lives at the societal periphery and moved by the sub human conditions of
existence of the marginalised, judiciary threw open its doors to the poor and
oppressed of the society. As Justice Bhagwati opines
PIL is essentially a co-operative and collaborative effort on the part of the
petitioners, the state or public authority and courts to secure observance of
constitutional or legal rights, benefits and privileges conferred upon the vulnerable
sections of the society and to reach social justice to them.

Relaxation of the principle of locus standi is significant in the evolution of PIL.

Sunil Batra vs. Delhi Administration( written by a prisoner on behalf of his fellow
prisoner subjected to inhuman treatment in the jail) and Hussainara Khatoon vs
Bihar(wherein the plight of thousands of prisoners languishing in Bihar jail without
legitimate hearing) could be traced as the initial cases in the dizzying pantheon of
PILs in India.
However, PIL is not to be mistaken with adversarial jurisdiction.Supreme Court has
clearly delineated the legitimate grounds for filing PIL (kindly refer the pdf I had sent
previously), thereby to check the abuse of the same.
Couple of significant PILs are:
Bandua Mukti Morcha case(related to the bonded labourers working in the stone
quarries of Faridabad under inhuman conditions),Vishal Jeet vs.India(petition sought
directions from Supreme Court to entrust to the CBI an inquiry of sexual exploitation
of children in flesh trade)PUCL,Delhi vs India(1997,against non- functioning of
medical equipment in government hospitals), host of petitions against corruption such
as JMM Bribery case,Jain Hawala case, Animal fodder scam ,2G spectrum scandal
etc,the suo moto case regarding Death of 25 Chained Inmates in Asylum Fire in Tamil
Nadu,Uphaar Tragedy case,PUCL vs India(Right to food )Best Bakery
 Case(2002),CEHAT case(demanding complete ban on prenatal diagonistic techniques
and thereby containing sex determination and sex selective abortions),Vishakha vs
State of Rajasthan( that defined the guide lines for the protection of women from
sexual harassment at workplace), PIL demanding scrapping of Article 370(petition
dismissed by the SC),PIL filed by Naaz Foundation regarding the decriminalisation of
Section 377,a 2012 PIL(filed by Colin Gonsalves on behalf of Extra Judicial
Executions Victims Families Association) demanding the abolition of AFSPA,PIL
filed by Tehri Band Virodhi Sangrah Samiti (against the construction of Tehri
dam.This was however turned by the Court on grounds of unfound fears),Chhatra
Yuva Sangharsh Samiti vs State of Rajasthan,1985(under Article 226 demanding the
rehabilitation of thousands of displaced citizens owing to the construction of 100
dams over Sarovar river.Again,SC turned down this stating this did not pertain to the
legal domain).The Court has also dealt with environmental issues such as poluution
by tannery industries(Vellore Citizens Forum vs India),urban and solid waste
management(Almitrah Patel vs India),vehicular pollution (M.C Mehta vs India
1998,SC ordering conversion of vehicular fuel into CNG in Delhi),environmental
pollution due to location of slaughter houses, protection of wildlife(M.C Mehta vs
India),degradation of Taj Mahal-M.C Mehta vs India(Erosion of Taj Mahal),thereby
closing down the Mathura refineries, pollution of river Ganga by Calcutta tanneries
that discharged effluents into it(M.C Mehta (Calcutta Tanneries Matter),protection of
the people from stone quarrying in Dehradun region and so forth.
You can add on examples of contemporary relevance as well.
However the line between judicial activism and judicial overreach is thin. It could
very much prove to be an unguided missile if not exercised cautiously. Judiciary has
earned flaks for its judicial adventurism trespassing the legislative and executive
domains. There is definite prudence in the reflection of Soli Sorabjee when he
says,PIL is not a pill for every ill. Refer Arnghya Sengupta for critical analysis of
the same.