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Judicial Activism: An analysis of Indian jurisprudence, Merits and de-merits

According to Black´┐Żs law dictionary, Judicial activism is whereby any judge decides on a point of law on the basis of the influence of his own personal views on public policy. Thus, they may find constitutional violations and may not be approve sticking to precedents.[1] Thus, Judicial activism is the proactive role played by the judiciary in safeguarding the rights of the people by ordering in a way, both the Legislature and the executive to fulfil their constitutional obligations. Thus, to understand Judicial activism, we need to learn its powers first.

Judicial review:
Judicial review being the power conferred on the judiciary to ascertain the constitutionality of laws or executive actions at the State as well as Central level, it has been categories by Syed Shah Mohammed Quadri J. into three types as follows[2]:
  1. One that examines constitutional amendments
  2. One that examines any laws passed by State or Central legislature
  3. One that examines the acts carried out by Union and State authorities
Judicial review originated by the then American Chief justice of the Supreme Court of America in the evergreen American case of Marbury v. Madison[3], it has been considered a feature of the ´┐Żdue process of law´┐Ż that confers on the Supreme Court the expanded authority for protecting citizen´┐Żs rights if being violated by any law. For the purpose, this authority to examine may also include not only substantial but also procedural grounds to discover whether the law is reasonable or not. [4]

In contrast to this, being narrower in scope (covers only substantive questions of law i.e., whether the law has crossed its limits of authority or no), but rather being embedded and granted by the Constitution itself, also being enshrined through the ´┐Żprocedure established by law´┐Ż in India, this authority of Judicial review is granted to both the SC and HC and also being a part of the basic structure is not able of being destroyed by an amendment.[5] Thus, it remains an essential feature of the Constitution aimed at preserving its supremacy, balancing the equilibrium between State and the Centre and protecting the Fundamental rights.[6]

Provisions in the Indian Constitution authorising judicial review and powers of the SC:
While article 13 lays down that any law inconsistent with the Fundamental rights is void, article 32 confers upon the Supreme Court and article 226 endows the High courts with the power order writs in order to enforce and safeguard the Fundamental rights of the citizens. This power of judicial review endowed upon these Courts, to declare legislations/orders, etc. as violative of the Constitution, is considered to be a part of the basic structure of the Constitution.[7]

In Fertilizer Corporation Kamgar Union v. Union of India[8] this was upheld and the court said that the granting of fundamental rights without granting the citizens a manner in which they could be enforced or any remedies for violation of the same, does not make any sense. Thus, it could also not be done away with during a period of emergency. In People´┐Żs Union for Democratic Rights v. UOI[9], a writ passed against a private person on the grounds of enabling articles 17,23 and 24 was held to be valid.

Special Leave Petition:
As granted by Article 136 of the Constitution, the Supreme Court has been endowed with the power to grant special leave petition from any judgement/sentence/order, etc. if the cases involve substantial issues of law and result in gross injustice. However, this in no way grants a right on citizens but only a discretionary power on the Supreme Court[10] which has to be exercised in a sparing manner and only in exceptional cases[11] and based on justice, equity and good conscience.[12]

Curative petition:
The SC having the power under article 137, to review its own decision, Curative petition was invented in the SC case of Rupa Hurra v. Ashok Hurra.[13] In cases of gross injustice or contradiction to principles of natural justice, whereby after judgement is given and the review petition filed is dismissed, the curative petition may be taken up three senior most judges of the Supreme Court.

Power of Judicial Legislation:
If there is no present law on a subject matter and the presence of which is essential for justice, the SC has the power to legislate under article 142 and the same maybe considered as law of the land until replaced by a consequent act enacted by the Parliament.[14]

An instance of Judicial legislation can be seen in the case of Vishakha v. UOI, where the SC in the absence of any laws with regards to gender equality and prohibition of sexual harassment /abuse, laid down certain guidelines that were to be followed at workplaces unless and until any law was enacted, after which the law would be followed. Thus, the Court enforced Fundamental rights through article 32 and the guidelines issued by it were considered the law of the land as expounded by article 141.[15]

In Vineet Narain v. UOI[16], this duty of the SC to legislate to enforce fundamental rights in cases where there was no law enacted, as understood through a joint reading of articles 32 and 142 was confirmed. In Kalyan Chandra Sarkar v. Rajesh Ranjan´┐Ż this power of the SC to issue guidelines being reconfirmed it was held that it may operate as the law.[17]

However, any guidelines laid by the SC maybe replaced by a law enacted by the Parliament and example of it being that the Vishakha guidelines were replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 enacted by the Parliament.

Judicial Activism with the emergence of PILs:
The PIL being introduced by the US in 1960s, emerged in India in the 1980s due to judicial activism and was established by Krishna Iyer J. and P.N..Bhagwati J. The PIL acts as an exception to the rule of ´┐Żlocus standi´┐Ż i.e. only one´┐Żs whose rights are injured is liable to file a case. Thus, now any individual or public body can contest before a Court for the rights of any individual or group of people who due to reasons are not able to fight for their rights themselves.[18]

This shift had also been said to be rather more ´┐Żparticipatory and democratic´┐Ż.[19] This also resulted in that initially the decisions were only binding on the parties while under a PIL they are also applicable to similar parties.[20] The various cases wherein welfare was achieved under a PIL are as follows:

In Hussainara Khatoon v. State of Bihar, having highlighted the plight of the people undertrial that were restrained in the jails, most of them being convicted for small offences bearing punishments for a few months, it was found that they had already served quite larger sentences for years as they could not receive a trial. The ground cause behind this delay was that the convict was not capable of hiring an advocate for themselves. It was thus held that if such legal services are not facilitated by the State to indigent persons not capable of hiring lawyers, then it would vitiate the ´┐Żreasonable, fair and just procedure´┐Ż principle as necessitated by article 21.[21]

In Sheela Barse v. State of Maharashtra, a letter sent to the Supreme Court by a journalist showing the plight of women prisoners who were subject to custodial violence in Jails was treated by the Court as a writ petition. Thus, the various authorities responsible were served with guidelines by the Court.[22]

Similarly, another letter written by a prisoner in the case of Sunil Batra v. Delhi Administration, whereby a fellow prisoner was assaulted by the head warden, the Court treating the letter as a writ petition, ventured into the matter and provided justice. It was said by the Court that technicalities should not be a hurdle to realize the liberty of an individual.[23]

Interpreting and safeguarding the Fundamental rights:
In early cases like the Golakhnath case[24], the Court having ruled that the fundamental rights can´┐Żt be abridged by any amendment passed by the Parliament and in the landmark case of Kesavananda Bharti[25], the Court having established the ´┐Żbasic structure´┐Ż doctrine i.e. the basic structure of the constitution cannot be amended, the Court has been able to safeguard the rights of the peoples against the arbitrary attempts of the Parliament and thus maintain the Constitutional philosophy.

Further, the Supreme Court having upheld the right to life in the Maneka Gandhi case as not mere existence but with the grant of all associated freedoms, it laid that if life and liberty were to be denied, it should not only be in accordance with a procedure established by law, but the same must be fair and reasonable. Thus, the concept of substantive due process having emerged, the Courts could also examine whether a particular law was reasonable or not.[26]

Thus, after the broad interpretation of the right to life in Maneka Gandhi case laying the foundation for granting various positive rights not explicitly stated in the Fundamental rights, the Courts in many cases read article 21 together with various DPSPs to further socio-economic rights and goals thus establishing various rights and dealing with various issues as follows:
  1. Right to work:
    In Bandhua Mukti Morcha v. UOI, upholding the right to live with human dignity under article 21, held that the same could be fully realised to its potential only by securing aims mentioned under the DPSPs of article 39(e) and(f), 41 and 42. It ordered to release bonded labourers from exploitation and also their effective rehabilitation as it was the duty of the State to secure just and human conditions. [27]
  2. Right to education:
    It was firstly held in Mohini Jain v. State of Karnataka that this right is a fundamental right that can be enforced.[28] However, the proposition being re-examined in Unnikrishnan v. State of Andhra Pradesh, whereby the State had endeavoured to regulate the ´┐Żcapitation fees´┐Ż levied by private medical and engineering universities and the same being challenged by them as violative of their right to carry on business, the Court held that the passage of 44 years, almost 4 times than that mentioned in the Constitution to grant primary education to children was enough to convert the obligation to provide such education as expounded under article 45 into a right that is enforceable.[29] Further, it laid that article 41 helps realise the right to education part under article 21, thus being an implicit right under it which had been interpreted in such manner by the Court due to its fundamental importance.[30]
  3. Right to health:
    Right to health being considered a fundamental right as under the ambit of right to life under article 21[31], it read along with articles 41 and 42 of the Constitution help realise the right to maternity relief. Similarly, making a joint reading of articles 39(e), 47 and 48A, the Court has elucidated the duty of the State to improve public health and the environment.[32]

As we have seen before, Judicial activism has helped interpret and expand the scope of various rights granted to individuals by the Constitution and expand the scope of some e.g. Right to dignity. Further, helping to correct the constitutionally violative actions of the Legislature and executive, in absence of such actions (legislative vacuum) it helps provide for justice and upholding the rights of the citizens and reinstate their faith in the constitutional process.

Judicial Activism turning into overreach may intervene and disrupt the proper functioning of the legislature/executive and thus disturbs the equilibrium between the three organs of the State or the concept of separation of powers. Further, the executive being answerable to the public at large and the judiciary being self-regulated in itself without any external control, it posses a verry huge risk of exploitation by the people who are not elected, thus also undermining parliamentary democracy.

In many cases mentioned below, the Court is not of that competence or intellect of deciding over a matter, yet doing it makes the work of the government difficult. Further, it can be done in a very self-profiting, selfish or personal way. It also leads to inactivity among the legislature and executive that consequentially results in lack of trust among the public in the Parliament and representative form of democracy.[33]

Some of the cases where these factors have undermined Parliamentary Democracy are as follows:
  1. Directions to make policy:
    In the case of Swaraj Abhiyan-(I) v. UOI before the Supreme Court, the Court ordered the Agriculture ministry to update the Drought management manual. Thus, the running management system was to be removed and a more transparent policy to be introduced with deadlines and systemic methodology. The State of Maharashtra had witnessed large scale drought and increase in number of suicides being committed by farmers. However, the central issue is that whether the SC has the power to order the government to frame policies.

    In fact, it was also ordered by the Court to set up a National disaster mitigation fund within the period of three months. This was to be separate from the already existing National Disaster Respond Fund (NDRF) and State Disaster Respond Fund (SDRF). The concern being explicated by the then finance minister Arun Jaitley, that with the appropriation bill being passed, it was too difficult for the government to create this third fund. The apprehension that whether the budget making became open to judicial review was also expressed.[34
  2. Transparency in the CBI:
    In Vineet Narain v. UOI, the power of judicial legislation was used when the Supreme Court gave directions to the Government to make the Central Bureau of Investigation more transparent and accountable.[35]
  3. BCCI Reformation:
    Amidst various corruption and betting allegations, the Supreme Court set the Lodha Committee which issued certain recommendations. Accordingly, the body was to covered under the RTI act, betting in cricket was to be made legal, Voting rights were to be conferred only upon the State representatives and not upon the other representatives like Railways and Services who were to be treated as associated members. However, this clearly was a case of overreach as BCCI being a private body, not under the control of the State, the Lodha Committee recommendations were not liable to be applied on it.[36]
  4. Introduction of NEET:
    In Christian Medical College, Vellore v. UOI, the Supreme Court abolished state entrance exams for medical admissions and held that admissions will be provided only on the basis of the NEET scores.[37]
  5. Bad Loans Panel:
    Again, acting in a matter where probably, the Court lacked that competence and authority, it examined and then the manner in which public sector banks were to realize their dues. The SC appointed a committee that looked into the matter of bad loans and write-offs even though the RBI had signalled that most of the things were working properly.[38]
  6. Appointment of Judges:
    Having said that the National Judicial Appointments Commission (NJAC) Act and constitutional amendment deprive the judiciary of its independence, in Supreme Court Advocates-on-Record Association v. Union of India struck down the same as being unconstitutional and reinstated the collegium system that would function for transferring and appointing judges. The Court empasissed that this independence remained necessary in order to protect the rights of the citizens.[39]

Farm laws:
The Supreme Court in the latest issue of the Farm bills having ordered a stay on the same without examining its constitutionality, falls under the ambit of Judicial overreach and in a way undermines the Parliamentary power thus affecting the doctrine of separation of powers.[40]

The SC having held in Divisional Manager, Aravali Golf Course vs Chander Haas[41], that with the increasing number cases in which judges have been trying to perform executive and legislative functions, it has to be understood that the same is unconstitutional. Judicial activism does not mean exercising the functions of the other organs and the same may remain unjustified. Further, in Indian Drugs and Pharmaceuticals Ltd. vs. The Workman of Indian Drugs and Pharmaceuticals Ltd.[42] & S.C. Chandra v. State of Jharkhand[43], judges have been advised to observe judicial restraint and not interfere in the executive and legislative issues.

The Constitution of India determines the powers of all the organs of the State and prescribes the doctrine of separation of powers which needs to be followed, failing which the disturb in equilibrium may affect the constitutionality. Judicial Activism has been very essential in safeguarding the rights of the citizens and enlarging its scope as well as help the Legislature and Executive work more efficiently. However, on it turning into Judicial overreach it has in many cases undermined and created problems for the other two organs. Thus, judicial restraint needs to be observed and any such intervention needs to be avoided.

  1. Judicial Activism, Black´┐Żs Law dictionary,
  2. Justice Syed Shah Mohammed Quadri, Judicial Review of Administrative Action, 2001, 6 SCC(J), p.3, Also see 5th Edition, M Laxmikanth, Indian Polity, Mc Graw Hill Education pg, 27.1.
  3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
  4. 5th Edition, M Laxmikanth, Indian Polity, Mc Graw Hill Education, pg 27.1.
  5. Id.
  6. Id.
  7. L. Chandra Kumar v. UOI,(1997)3 S.C.C. 261 (India
  8. In Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 S.C. 344 (India).
  9. People´┐Żs Union for Democratic Rights v. UOI, (1982) 3 S.C.C. 707 (India).
  10. Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351(India).
  11. Pritam Singh v. The State, AIR 1950 SC 169(India).
  12. UOI v. C Damani and Co., 1980 Supp SCC 707(India).
  13. Rupa Ashok Hurra vs. Ashok Hurra, Writ Petition (civil) 509 of 1997 (SC:2002)(India).
  14. India Const. article142.
  15. Vishakha v. State of Rajasthan, AIR1997SC 3011 (India).
  16. Vineet Narain v. UOI , AIR 1998 SC 889(India).
  17. Kalyan Chandra Sarkar v. Rajesh Ranjan, Appeal (crl.) 1129 of 2004 (India0.
  18. 5th Edition, M Laxmikanth, Indian Polity, Mc Graw Hill Education, pg. 29.1
  19. S.P.Sathe, Judicial Activism in India, Sixth Indian Impression, OUP2010.
  20. Id.
  21. Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 SCR (3) 532(India).
  22. Sheela Barse v. State of Maharashtra, JT 1988 (3) 15(India).
  23. Sunil Batra v. Delhi Administration, 1980 SCR (2) 557(India
  24. Golakhnath v. State of Punjab, 1967 SCR (2) 762(India).
  25. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461(India).
  26. Maneka Gandhi v. UOI, 1978 SCR (2) 621(India).
  27. Bandhua Mukti Morcha v. UOI, (1984) 3 SCC 161.
  28. Mohini Jain v. State of Karnataka, 1992 AIR 1858(India).
  29. Unnikrishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645. ´┐Ż´┐Ż 172-181(India
  30. Unnikrishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645. ´┐Ż183(India).
  31. CERC v. UOI , 1995 AIR 922, also see CESC Ltd. v. Subash Chandra Bose, 1992 AIR 573(India).
  32. M.C. Mehta v. UOI, 1987 SCR (1) 819(India).
  33. Whether the judicial activism has undermined or strengthened Parliamentary Democracy in India?, Formulas,,keeping%20society%20healthy%20and%20progressing
  34. Swaraj Abhiyan(I) v. UOI, Writ Petition´┐Ż No. 857 of 2015(India).
  35. Vineet Narain v. UOI, (1998) 1 SCC 226 (India).
  36. G. Viswanath, Lodha Committee reforms, Welcome news for BCCI members, The Hindu, September 21, 2019,
  37. Christian medical college vellore v. UOI, Transferred case(Civil) no. 98 of 2012(India)>
  38. Sundaresha Subramanian, SC tells govt to set up bad loans panel, business standard,
  39. Supreme Court Advocates-on-Record Association v. Union of India, WRIT PETITION (CIVIL) NO. 13 OF 2015(India).
  40. Markandey Katju, Can Supreme Court stay implementation of a law, theweek,
  41. Aravali Golf Course vs Chander Haas, Appeal (civil) 5732 of 2007(India).
  42. Indian Drugs & Pharmaceuticals v. The Workman of Indian Drugs & Pharmaceuticals, (2007) 1 SCC 408(India).
  43. S.C Chandra v. State of Jharkhand, 2007 (10) 4 SC 272 (India).

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