A PAPER ON:

JUDICIAL ACTIVISM AND INDIAN POLITICS: A CRITICAL

ANALYSIS

SUBMITTED TO:
Prof. Ravi Saxena
Assistant Professor, Kirit P Mehta School of Law

SUBMITTED BY:
Shrishti Yadav
FY BA LLB-DIV C
ROLL NO: C043
SAP ID: 81012100444
Abstract:
Justice: This seven-letter word is one of the most disputed
words in our democracy. Justice is linked to the entire population, and
there is no doubt that the definition does change with changing tongues.
In simple terms, judicial activism occurs when judges incorporate their personal
feelings into a conviction or sentence instead of upholding existing laws. In
this research paper, the researcher will analyze the historical background of
Judicial activism and its impact on Indian Politics. This research aims to
conduct empirical and qualitative analysis of judicial activism.

Introduction:
Human existence has progressed from totalitarian authority to liberal democratic
country since the beginning of civilization and its graduation to modernity. In
a modern democratic country concerned with good governance, Republican ideals
such as the rule of law, judicial review, and judicial independence are valued.
The concept of constitutionalism, as embodied in
India's Constitution envisions a welfare state in which the government is
supposed to develop programs to provide a good quality of life and social
security to its citizens through legislation and administrative action. The
the judiciary is empowered under this concept of constitutionalism to mediate
between the demands of the Indian state and civil society while attempting to
maintain regions of autonomy from government interference.
The functions and role of the judiciary in a democratic society have been a source of heated
discussion since the beginning of time. The term 'judicial activism' has evolved as the main
subject of such debate. But, for one reason or with another, the debate over its definition has
not been resolved.
Black law's Dictionary defines judicial activism as "a philosophy of judicial decision-making
where judges allow their personal views about public policy, among other factors, to guide
their decisions." Judicial activism means an active role played by the judiciary in promoting
justice. Judicial Activism, to define broadly, is the assumption of an active role on the part of
the judiciary. Judicial activism implies going beyond the usual restraints placed on jurists and
the Constitution, which provides jurists the power to overturn any legislation or precedent
that violates the Constitution. As a result, deciding against the majority opinion or court
precedent is not always judicial activism unless done actively.
In the words of Justice J.SVerma, Judicial Activism must necessarily mean "the active
process of implementation of the rule of law, essential for the preservation of a functional
democracy."

Research Objective:
This research paper intends to explore the positive influence of judicial activism on Indian
democracy and establish that it is not an aberration.

Research Questions:
-What is Judicial activism?
-What is the importance of judicial activism in a democratic country like India?
-How does judicial activism strengthen Indian democracy?

Judicial Activism and its Evolution:

For a layman, judicial activism may appear to be a complicated concept, but it is relatively
simple to understand. Simply said, judicial activism is a practice by judges that do not
concern the balance of the law but rather hinders it. In judicial activism, the judge uses his
heart and brain to make his ultimate decision, emotionally charged. At times it works in our
favor to keep us from making a wrong decision, but it can also backfire on us. In other words,
we can easily define judicial activism as the practice of the jury going beyond the ordinary
law.
According to Prof. Upendra Baxi, "Judicial Activism is an inscriptive term. It means different
things to different people. While some may exalt the word by describing it as judicial
creativity, the others have opposed the concept, labeling it as judicial extremism, judicial
terrorism, trespass into the jurisdictions of other State institutions, etc." The failure of the
government's legislative and executive branches to provide "good governance" necessitates
judicial intervention.
In a January 1947 Fortune magazine article titled "The Supreme Court: 1947," Arthur
Schlesinger Jr. coined "judicial activism."
For a long time, the Indian judiciary had taken a conservative view on the concept of judicial
activism. However, it would be incorrect to state that there have been no instances of judicial
activism in India. From time to time, there were a few isolated instances of judicial activism.
But they were not well-known in India because the concept was unknown to them. However,
the history of judicial activism can be traced back to 1893, when Justice Mehmood of the
Allahabad High Court delivered a dissenting judgment that sowed the seed of activism in
India. It was a case of an under-trial who could not afford to engage a lawyer. So, the
question was whether the Court could decide his case by merely looking at his papers (Justice
J. S. Verma, 1996). Mehmood held that the pre-condition of the case being 'heard' (as
opposed to merely being read) would be fulfilled only when somebody speaks. So, he gave
the broadest possible interpretation of the relevant law and laid the foundation stone of
judicial activism in India. In India, Justice P.N Bhagwati and Justice V.R Krishna Iyer were
the first to introduce the notion of public interest litigation (PIL) and advocate for judicial
activism. The phrase 'judicial activism,' according to Justice Bhagwati, is not a term of 'trend'
or 'popularism,' but rather a term denoting an important source of judicial power that judges
should use to achieve a 'willed result.' He says
"The task of the judges takes them deeper into future to make decisions which will sometimes
affect even political development and, therefore, in all humility they have to be aware of
social needs and requirements and economic and political compulsions and to recognize
changes taking place in a fast-developing society and to develop and adapt the law to the
changing needs and requirements of the people. And on each occasion when they do so, they
are expected to provide justifying reasons which must satisfy not only themselves but also
critics and jurist, nay the society itself, for what they decide".
Cases such as Hussainara Khatoon vs. the State of Bihar, Keshavnandan Bharti Case,
Golaknath vs. the State of Punjab, etc., demonstrate India's growth of judicial activism.

Judicial Activism: The Indian scenario:

The Supreme Court of India began as a technocratic court, following the traditions of British
courts, but progressively evolved into an activist court. The AK Gopalan v. State of Madras
case is the first significant precedent in this area (Gopalan case, 1950) 12. The purpose of the
writ was to determine whether imprisonment without trial (under the Preventive Detention
Act of 1950) constituted a violation of Articles 14, 19, 21, and 22 of the Universal
Declaration of Human Rights. Four judges upheld the Preventive Detention Act, but two
others came to different decisions. Although the challenge was unsuccessful, it did establish a
new legal tendency that became apparent in the following years.
In the late 1960s, the Supreme Court became increasingly active. In 1967, the Supreme Court
ruled in Golaknath v. State of Punjab that the Parliament could not "take away or abridge"
fundamental rights by altering the Constitution, despite a narrow six-to-five majority.
Parliament passed the 24th Amendment in response. In the landmark case Kesavananda v.
State of Kerala case, this Amendment was contested. With its largest bench of 13 judges, the
Supreme Court ruled that while Parliament could amend any constitutional provision, the
Constitution's core framework could not be changed. This is the best example of judicial
activism, as it established the non-elected judiciary's authority over the elected legislature.
Indira Gandhi announced a state of emergency on June 26, 1975. Though the Supreme Court
of India has grown into an all-powerful supreme court, its institutional fragility was
demonstrated in the case of ADM Jabalpur v. Shivakant Shukla (1976)20. The decision
revealed the darkest episode in the Supreme Court's history when the Court ruled by a 4:1
margin that the presidential proclamation suspending fundamental rights granted by Article
19 lacked malafides. The Court upheld the fundamental principle of law. Still, it could not
declare the Presidential order made under Article unconstitutional because it removed one of
the Constitution's most basic features.
Daniel Latifi's case (2001) is the best example of judicial activism, in which a five-judge
Supreme Court bench interpreted only section 3(1)(a) of the Muslim Women's (Right to
Divorce) Act, which required the husband to pay maintenance and future provisions during
the period of iddat, thus avoiding the Act's deviation from Articles 14, 15, and 21. The recent
Singur case (2016) is an excellent example of judicial activism. The Supreme Court
invalidated a land acquisition and ordered it be returned to the farmers because it was not for
public use.

Merits of Judicial Activism:

In India, judicial activism has made a significant contribution by providing a democratic
safety valve and hoping that justice is not far gone. By the alchemy of judico-photosynthesis,
judicial activism has provided much-needed oxygen to a massive democratic experiment in
India.
Following are the positive impacts of Judicial Activism:
-The extension of public access, for instance: The Judges Transfer Case
(S.P Gupta V Union Of India-1981)
-Redresser of public wrongs and injuries.
-The subject of Public Interest Litigation (PIL): Curial Democracy
-Our Constitution's signature tune: Social and Economic Justice
-The Court can now recognize a general interest in any litigant on an issue as adequate locus
standi because of the liberalization of the locus standi principle.
-Breaks the democratic deadlock with a shadow government.
-Judicial Dynamism
The judiciary occupies a unique position in the legal system. Judges are not elected, but they
have the right and responsibility to check the exercise of powers and actions of elected
representatives and appointed officials within the system of governance. Despite considerable
challenges in ensuring access to justice, judicial process, and issues of transparency and
accountability, the judiciary as an institution is highly respected. It is responsible for ensuring
that the people's rights and freedoms are protected and that the government's powers in
formulating policies are in accordance with the Constitution and other laws. If India's
democracy is meaningful, it must be built on two fundamental pillars: the rule of law
enforcement and political system reform, each of which builds on the other. Both of these
measures will benefit from the assistance of the courts. Anything extreme is terrible. For a
healthy democracy, the doctrines of separation of powers and checks and balances are
unavoidable. It is thought that judicial activism violates the theory of separation of powers,
resulting in an arbitrary, uncontrollable, and despotic judiciary. Although the executive and
legislative branches claim that the judiciary is intruding unduly in their tasks, it is essential to
remember that judicial activism has benefited this country greatly. As a result, a balance
between judicial activism and judicial restraint is required. Judicial activism is something that
could be termed as 'the Aristotle effect' Aristotle abhors a vacuum. If any agency in any
society becomes dysfunctional, the nature, which abhors this vacuum, would make other
agencies rush to fill it up.

Conclusion:
In recent years, the country has significantly benefited from judicial activism in public rights
and interests. The common people are frequently victimized by judicial tardiness and
inefficiency, but judicial activism is a step to eliminate such sporadic aberrations. Judicial
Activism must not devolve into Judicial Adventurism. The supreme law of the land is the
Constitution. No organ should be allowed to go beyond the duty that the Constitution has
allocated to it. Between judicial activism and judicial overreach, a narrow line must be
drawn. If activism takes on a life of its own, the institutional equilibrium will be thrown off.
The job of the other branches of government, not the courts, is to run the country. Every
government decision must be sympathetic to the people, according to the courts. Rather than
emerging as a single savior of the entire community, the Supreme Court should call the
attention of the other wings to tackle the problems. Judicial activism is not an aberration. It's
an integral part of a constitutional court's dynamics. It's a counter-majoritarian democratic
check. Judicial activism, on the other hand, does not imply that the judiciary is in charge.
Judicial activism must also work within the confines of the legal system. Judicial activism
has given the oppressed a glimpse of hope in their fight against corrupt authorities,
politicians, bureaucrats, and others.
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