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Judicial Activism
Judicial Activism
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Political Science
JUDICIAL ACTIVISM
M. M. Semwal
Sunil Khosla
Judges must be sometimes cautious and sometimes bold. Judges must respect both the
traditions of the past and the convenience of the present. Judges must reconcile liberty
and authority; the whole and its parts. Impartial, independent and positive justice is the
foundation of the efficiency of the government. Governance is the prerogative of the legislature
being a popularly elected body of the people. The executive is responsible for the proper
enforcement of the laws made by the legislature. But when the legislature does not bother
about the rights and liberties of the individuals and the executive becomes apathetic in the
matters of implementation of the laws, the judiciary is the only way out to act as the engine
of social welfare to secure justice for every citizen in the various spheres of life whether it
is child labour or environment or human rights. Judicial activism is nothing but an expanded
role of the judiciary as it encompasses an area of the legislative vacuum. It is an effort to
revitalize the system through the provision of simplest, fastest and inexpensive access to
individual. This paper attempts to deal with questions such ß s what is judicial activism?
How does Indian Constitution provide judicial activism? How does the concept of judicial
activism come into existence in the Indian polity? To what extent the judicial activism has
improved the quality of governance in India?
The judicial system in India occupies a significant place as it enquires the validity of laws,
their interpretation and implementation framed by the legislature. Besides, settlement of mutual
disputes and the disputes arising out of the clashes between Centre and the States and amongst
the States also fall under the jurisdiction of the judiciary. It also protects the rights and liberties of
the citizens. Justice, that is fair and just to all without any discrimination is expected from judiciary.
Moreover, efficiency of the government largely depends on the impartial, independent and positive
justice.
When the legislature enacts laws resulting in the infringement of the freedom and security
of the individuals and the executive stops performing its duties like enforcement of law, the only
way out is the judiciary. Judiciary is compelled to take over in some measure the duties of the
executive to ensure justice to the citizens.
In a democratic polity, good government is indispensable for any state and the three organs
of the government constitute three pillars of good and effective governance and lack of harmony
amongst them can lead to administrative chaos. In such a situation, independent and fearless
judiciary forms the core of democracy. In the Constitutional scheme, the judicial system works as
an active catalyst to secure justice for every citizen.
Though the Indian judiciary has been honest and independent in the performance of its
duties as regard to the executive control and influence. However, under the changing socio-economic-
politico situations in India people have higher expectations from the judiciary. In the event of
poverty and illiteracy, its challenging task is to ensure justice to all. The entire system of governance
is based on the principle of equal justice forali. It is now widely accepted that the nature of judiciary
has become social and economic.
When the executive is not taking important decisions in public matters while adopting
indifferent attitude towards the problems of the people then the judiciary exercises the powers
vested in them by the Constitution to remove the public grievances. So, in the present times, the
concept of judicial activism has emerged as a new phenomenon in the Indian polity with a specific
role of judiciary in the social welfare. During the last two decades, the working of Indian judiciary
has been characterized by judicial activism. It has increased the significance of judiciary in the
process of governance. Being an activist, judiciary has delivered historic verdicts relating to various
spheres of life, environment, human rights, child labor etc. As it is a new phenomenon, therefore,
it has generated and initiated a debate in the Indian polity. This concept is being criticized and
appreciated in the Indian society, as there are defenders and opponents of judicial activism. It
constitutes two schools of thought, one in favor of judicial activism and the other against it. Besides,
one thing is certain that judicial activism has improved the working of Indian politics. The social,
economic and political justice can be achieved if every instrumentality under the Constitution
functions as per the mandate of the Constitution.1 The inactivity, incompetence, disregard of law
and constitution, by the legislature and callousness, negligence, corruption, greed for power, and
money, indiscipline in the executive had created the vacuum as a result of which both the organs
of the government failed to fulfill the constitutional obligations and compelled the judiciary to play
an activist role2 in order to fill the vacuum created by the executive and the legislature and to
check the unconstitutional behavior of the executive and the legislators. Now the basic questions
are: what is judicial activism? Does Indian Constitution provide judicial activism? How does judicial
activism come into existence in the Indian polity? Whether failure of executive is responsible for
judicial activism? To what extent and in what way the judicial activism has improved the quality of
governance in India? In this paper, a modest attempt has been made to respond to these and
related questions.
While responding to the meaning of the term judicial activism, it is needed to be clarified
that judicial activism is not the performance of the function of settling the disputes in accordance
with Constitution or law of the land. It is the adoption of pro-active approach by the judiciary.
Judicial activism reflects the situation when the judiciary comes out of its sphere of traditional rote
and becomes active in its working while laying down the policies and programmes to ensure the
protection of rights and liberties of the people which otherwise is within the discretion of the
executive and the legislature. One of the arguments raised in the present paper is that the judiciary
is doing its duty to ensure the accomplishment of the ideals of the welfare state. It is not overstepping
its areas assigned by the constitutional framework rather it is in tune with democratic norms. It is
not judicial anarchy, judicial over activism and judicial despotism.
Judicial activism is a state of mind. It has its genesis in the inactivity and apathy of the
legislature and the executive. It is nothing but the performance of the judicial activities. It is creativity
In order to examine th
provisions of the Indian
Directive Principles of S
the different spheres o
movement from the pers
groups and organization
of constraints of money
In Kesavananda Bharti
Constitution of India suc
of judiciary cannot be am
unconstitutional. Such e
Constitution, is nothing
features of the Constitu
Judicial activism is th
expected to adjudicate o
wing of the governmen
Constitutionalism, judici
judiciary are not restric
safeguard individual libe
The activist role the judiciary in late seventies gave an expansive meaning to social and
economic justice. So far as the development of fundamental right to free legal aid is concerned, the
judiciary did not hesitate to offset the legislative apathy. It is worth mentioning that Justice Krishna
Iyer and Bhagwati have contributed to a greater extent in the achievement of the said objective.
In Hoskot v State of Maharashtra,21 the court carved out a right to free legal aid from the
provision of 'procedure established by law' under Article 21 . Justice Iyer opined that this right is
available under following circumstances: first "a person is disabled incommunicado situation";
second, if the circumstances of the case and the gravity of the situation so demands; and third, the
end of justice call for such service. Once the court is satisfied on these counts, then it may order
for providing the legal service to such person.
In Hussainara Khatoon case, the miseries of the helpless, hopeless, unfortunate, forgotten
specimens of humanity languishing in jails for years awaiting trial in court 0f |aw to commence, has
been exposed. According to Court, one of the causes for such situation was lack of legal service
to these destitute and homeless, a cry that has yet to receive any response 22
In Indian polity, the origin of judicial activism can be traced back to emergency when
Justice V.R. Krishna Iyer and Justice P.N . Bhagwati were the initiators of new phenomenon in the
working of judiciary in the form of Public Interest Litigation (PIL) which has introduced a new
dimension regarding the involvement of judiciary in public administration. Justice Krishna Iyer
described law as a social auditor and only some one with the public interest can ignite this. Justice
P.N. Bhagwati propounded in S.P. Gupta case that the Court has to innovate new methods and
devise new strategies to provide access to justice to majority of masses that are denied basic
human rights. The exposure of the brutality of bonded labor, pollution through industrial effluents in
Jamuna, environmental degradation, education capitation racket etc.
Since seventies, the Supreme Court started accepting genuine case even from the person
who is not affected. The Public Interest Litigation covers in its jurisdiction the cases of infringement
and injury to common public interest due to official apathy and the judgments pronounced in such
cases belong to the arena of judicial activism. It guarantees justice to a larger section of society,
which is deprived of access to justice. In India, social activists and public interest litigants have
actively helped the higher judiciary in the promotion of steps to establish the welfare of the under
privileged, exploited and oppressed class. The Supreme Court as social activist took into account
the problem and the plight of children and women, oppressed and weaker sections of the society,
bonded labor, casual labor, mentally and physically handicapped, under trial prisoners, detenues,
convicted persons held under custody. The judiciary has come to be a reformer whose role can
affect socio-economic scenario.
In Sheela Barse v State of Maharashtra case,24 the Supreme Court treated a letter written
by a journalist as a writ petition containing a complaint regarding custodial violence on women
prisoners. There are several instances where the court allowed the public-spirited person and
welfare organizations to move the court for those persons who were not in a position to move the
court themselves for the redressai of injustice done to them due to the financial constraints and
underprivileged position.
Not only this, the court even went one step further and granted permission to the public
minded persons to maintain action against state where the inaction of state machinery causes or
is likely to cause public injury.25 In'S.P. Gupta case,26 the Supreme Court of India in its decision
held that any member of the public having sufficient interest might move the court for judicial
redress for public injury arising from the violation of provisions of the Constitution. So the judiciary
of today is performing as protective and inductive role for ensuring the social justice. In an interesting
instance, the right to live has been animated to life by judicial activism while including in its
meaning the right to live with human dignity, right to livelihood, the right to have access to road in
certain circumstances, enjoyment of pollution free water and air etc. Environmental protection
while ensuring green belts, open space for maintenance of ecological balance, forbidding stone-
crushing activities near the residential places, instructing the industrial units to setup the effluent
treatment plants, installation of the air pollution controlling devices for the prevention of air pollution,
closure of recalcitrant factories in order to save the communities from the hazards of environmental
pollution etc. are seeking shelter under the umbrella of judicial activism. In M.C. Mehta v State of
Tamil Nadu case,27 the Supreme Court, in public interest litigation, formulated the concrete policy
for the eradication of the evil of child labor, which is a protective as well as inductive instance. It is
due to the inaction of administration to tackle the burning problem. In this case, the judicial
activism aimed at the protection of child from being engaged in prohibited work and at the introduction
of the facility of education to the children. The cases in public interest litigation have turned to be a
fertile preserve of judicial activism.
Now the question arises, what are the logical bases of the Public Interest Litigation? Poverty,
illiteracy, caste-ridden society, backwardness, expensive judicial process and delayed justice
constitute the logical bases of public interest litigation. It is too much to expect from poor and
illiterate people that they would come out openly against the infringement of their individual or
group-rights while fighting with those who are powerful . This argument gives rise to further question
as to what is the way out to get rid of this situation. This situation can be tackled if some public-
spirited men think for them and lend support in case of infringement affecting the public adversely.
H. M. Seervai cites an example of public spirited individuals being granted locus to move the courts
- with beneficial results to public administration - in Piloo Mody vs State of Maharashtra in 1 975
In the Constitutional ev
interests in the field of h
to consult lawyer during i
dignity free from exploi
handcuffing, the right a
sexually harassed at the p
late seventies, which is a
registering significant g
Constitution, common
beneficiaries turned out t
(Forty-second Amendment
Article 39-A, which direc
to ensure that no citizen
The Court must step in whenever the basic human rights are violated and the executive
deviates in doing justice and interferes with process leading to the miscarriage of justice. Out of t
various factors of judicial activism, two factors deserve more attention: one arguement is that th
judicial activism is the product of failure or inaction of the executive. It is believed that the inacti
of the executive forced the judiciary to step even in those areas, which are not conventionally
assigned to the judiciary. The executive is there to implement the laws in order to ensure the goo
governance in the society. But in the recent past, the performance of the executive has be
hopeless as far as the law implementation is concerned. At this stage the pertinent questio
which strikes the mind, is, if the Constitution has conferred vast powers and jurisdiction on t
judiciary then what is the need of judicial activism? When any of the three organs of the government
becomes inactive, the whole system of administration collapses and the objective of gener
welfare loses its relevance. It is worth mentioning that the judiciary had to step in those areas
which do not fall under its jurisdiction when the cases of corruption came into seen, the executiv
has neither vision nor commitment to perform its role. In the process, the governance has becom
a bit casual. These circumstances compelled judiciary to intervene and assert its role as an
activist and as the guardian of the law when those who ought to enforce it do not respect the law
It appears that the objective is to compensate the failure or inaction of the executive.
The second arguement is that the judicial activism is the result of the inactivity of the
executive or in other words, it is the urge for judicial populism. It is argued that the judiciary h
acquired the power of judicial activism to become important vis-à-vis the other organs of the
government. The judiciary has encroached the areas assigned to other organs of the governmen
It is believed that judicial activism is the brainchild of a few judges who are in search of popularit
The argument is that while exercising the power of judicial activism, keeping the judges busy
public interest litigation, the traditional litigation becomes major casualty.
Another arguement is that judicial activism is the product of socio-economic change, which
has taken place in the Indian society since independence. Social activism is the most complex an
challenging task facing the modern judiciary today. It cannot attain legitimacy in social and politi
1 . R.K. Bag, Judicial Activism vis-à-vis Public administration, The Administrator, Vol. X
April-June 1997, p. 167.
2. Ibid.
9. Ibid.
12. Marbury was appointed to the post of Judge under the Judi
United States Federal Government. Though the warrant of appoint
could not be delivered. Marbury brought an action for the issue of
By then, Marshal had become the Chief Justice f the Supreme
been appointed by the outgoing President, who lost the election. J
the imminent prospect of the Governmentnot obeying the jud
Marbury was to be upheld. In a rare display of the judicial stat
power of the Court to review the actions of the Congress and t
Justice Marshall declined the relief on the ground that Section 1 3
1789, which was the foundation for the claim made by Marbur
since it conferred in the violation of the American Constitution,
the Supreme Court to issue the writ of mandamus. He observe
was the fundamental and paramount law of the nation and it is fo
the law is. He concluded in the particular phraseology of the Cons
States confirms and strengthens the principle supposed to be
Constitutions. That a law repugnant to the Constitution is void
well as other departments are bound by that instrument. If there
law made by the Congress and the provisions in the Constitution,
court to enforce the Constitution and ignore the law. The twin co
review and judicial activism were thus born. (The excerpts from t
N. Rao, "Judicial Activism" appeared in Ebclndia.)
19. Ibid.
20. Ibid.
25. G.R. Bhatacharjee, Judicial Activism. Its Message for Administrators, The Ad
Vol.42 (2), April-June 1997, p.39.
31 . V.R. Krishna Iyer, Judicial Activism and Administrative Autonomy, The Admin
Vol. 42(2), April-June, 1997, p. 1.
32. Granville Austin, The Indian Constitution: Cornerstone of a Nation, New Delhi,
1999.
37. N. Sanjaoba, Judicial Activism: Politics of Power and Judicial Supremacy, The
Administrator, Vol. XLII (2), April-June 1997, p.162.