Judicial Activism

• Proactive role played by Judiciary- protection- rights of citizens &

promotion of justice in society.
• Assertive role played by judiciary to force- two organs (legislative &
executive)- discharge constitutional duties.
• Known as Judicial Dynamism.
• Modern era- primary source- origin of Law- legislature. Secondary
source- Judge made law through judicial interpretation of Existing
legislature.
• Judicial activism emerges- judge made laws.
• Roots of Judicial Activism- traced back- 1893. in case under trial not
represented by any lawyer or could not afford lawyer- Allahabad
H.C Judge S. Muhmud held- that pre-condition for hearing a case
would be accomplished only when someone speaks.
 Methods of Judicial Activism
1. Judicial Review- power of judiciary to review & decide
validity of acts passed by legislature/ executive branch of
Govt. Court- stuck down the decision- exe./admin
agencies- if not in conformity with law/ Constitution.
2. Public Interest Litigation- Traditional Rule- petition filed
by person U/A. 32- if FRs infringed but now courts permits
PIL/SIL- instance of public spirited persons- enforcement
of Legal/ Const. rights.
3. Constitutional Interpretation- powers to S.C- U/A. 32 &
136 & H.C- U/A. 227 & 226- Judicial review- keep check on
state actions. Court- power- figure out particular meaning
of provision of Const.- various methods/ modes- interpret
ting provisions- realize goal of equitable justice.
 Advantages of Judicial Activism
• Creates Balance
• Interpretation by Judges
• Empowers judiciary
• Upholds the rights & reforms the society.
• Acts in Larger Public Interest.
• Precedent
 Examples of Judicial Activism
Case Laws
 Kesavananda Bharati v. State of Kerala
• Held- amendments involving basic features of Const.- democracy/
rule of Law/ federal system/ secularism/ independence of Judiciary-
unconstitutional

• rise to doctrine of Basic Structure.

• Doctrine not mentioned in const. but established by court.

• Best example of Judicial Activism- Indian scenario as court

evaluated misuse of policies promulgated by organs of Govt.
 Examples of Judicial Activism
Case Law
 Vishaka v. State of Rajasthan
• S.C.- due to absence of enactment- enforcement of gender
equality Laws against sexual harassment- become
imperative for court to lay guidelines- followed at all
workplaces to observe proper treatment to women.
• Court- guidelines- treated as a law U/A. 141 of Const. until
legislation enacted by Parliament.

Justice Bhagwati- stated Judicial Activism- central feature of

every political system- empowers free & independent
judiciary with adjudicatory powers.
 Judicial Over reach
• Judicial Activism crosses its limit.
• When judiciary starts interfering- with proper functioning of legis/
exe organs of Govt.
• Thin line difference b/w Judicial Activism/ Judicial Over reach.
• While Judicial activism- use of judicial power to enforce What is
beneficial for society in general, Judicial Over reach- when Judicial
activism crosses its limit.

• Matter of perspective.
• Judicial Over reach- when judiciary- interferes- functioning of
Legis./exe organs of Govt. means crosses line & enters exe/leg
functions.
• Undesirable in democracy.
• Against the principle of separation of powers.
 Examples of Judicial Over Reach
• S.C passed judgement on Dec, 2016 in case of-
 Shyam Narayan Chouksey v. UOI
• That it is mandatory- all Cinema Halls- play National
Anthem before films starts.
• National Flag- displayed on screen- while National
Anthem played in hall.
 Ban of Firecrackers
• Vice- President- event- 80th All India Presiding Officers
Conference- Nov 2020- termed- S.C- banning of fire
crackers during Diwali as Judicial Over Reach