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Judicial Activism: Tool to Protect Human Rights or Tool for Overreach?

The judiciary acts as a watchdog for our democracy. It is the guardian of the Fundamental Rights. It is important for such an institution to be active in securing the rights of the citizens with the changing society. It transforms to a more active role by taking up cases involving fundamental right violation in a suo moto action.

The main aim of judicial activism is to ensure justice and equality to all. However, the judiciary must not take such decisions whimsically or interfere with the functions of executive and legislature. This encroachment is termed as "judicial overreach". There are various instances where judicial activism took the shape of judicial overreach and the judiciary overstepped its boundaries which proved to be detrimental for the country. It is high time for courts to regulate such activities and follow "judicial restraint".

An impartial, impartial, and independent judiciary is a body that functions independently. It operates within the parameters of the constitution, which are established by the idea of the separation of powers. It upholds the rule of law and the norms outlined in the constitution, interprets the supreme and occasionally necessary constitution.

The Indian Supreme Court is regarded as the sentinel who lives and defends the people's basic and constitutional rights.Judicial activism refers to the judiciary's proactive involvement in defending citizens' rights. Judicial activism was first practiced and developed in the USA.

The Supreme Court and the High Courts of India have the authority to review the constitutionality of any statute, and if they find it to be in conflict with the constitution's provisions, they have the authority to declare it unconstitutional. It must be highlighted that the inferior courts lack the authority to examine the legality of laws. Judicial activism refers to court decisions that are informed by the judges sitting over the case's political, personal, and prudent judgement.

It is a phrase used in law to describe court decisions that are partially or entirely influenced by the political or personal views of the judge rather than existing or legislation Meaning Judicial activism is the term for the judiciary's proactive role in defending the rights of citizens. Judicial philosophy drives judges to reject established precedents in favour of innovative and progressive social policies.

Judicial activism, according to Black's Law Dictionary, is a philosophy of judicial decision-making in which judges permit their individual ideas on public policy, among other things, to influence their judgements. Through the procedure of judicial review, which can be applied to the unwritten constitution of Britain during the Stuart era, judicial activism was developed (1603-1688).

Through the action of Justice Coke, the authority of Judicial Review was accepted for the first time in Britain in 1610. According to the then-Chief Justice Coke, if a statute passed by Parliament violated common law or "reason," the judiciary might evaluate it and declare it invalid.In India, judicial activism means that the Supreme Court and the high courts, but not the lower courts, have the power to declare laws invalid and unconstitutional if they violate or are inconsistent with one or more constitutional provisions.

According to SP Sathe, a court is considered active if it interprets a provision differently to reflect shifting social or economic circumstances or broadens the scope of an individual's rights.In its early years, the Supreme Court of India was more of a technical court, but it gradually started to become more active through constitutional interpretation. Through its involvement and interpretation of the law and legislation, the court evolved into an activist, although the process took time and was gradual.

The court's early and rash claim regarding the purpose and character of judicial review can be considered as the beginning of judicial activism.Origin:The judicial review procedure in the United Kingdom gave rise to the doctrine of judicial activism. An unwritten constitution that permits judicial activism is the British Constitution. The unwritten constitution gave rise to the prospect of judicial review under Stuart's rule (1603�1688), which gave rise to judicial activism.

Justice Edward Coke introduced the judicial review paradigm in 1610. He decided that any statute issued by parliament that is against common law or reason can be reviewed and ruled illegal by the courts in the Thomas Bonham v. College of Physicians case (1610). Sir Edward Coke's successor as Chief Justice of the Court of Common Pleas in 1615, Sir Henry Hobart, accepted this doctrine of judicial review and, consequently, judicial activism.

In Madbury v. Madison (1803), the US Supreme Court explicitly declared that some provisions of the Judiciary Act of 1801 were unconstitutional. This was the first significant case involving the concept of judicial review. A court invalidated a piece of legislation for the first time ever in American history. Judicial review has become more common in the US ever since the Supreme Court decided that federal courts have the power to strike down unconstitutional laws.

However, Arthur Schlesinger Jr. used the precise word "judicial activism" in his article titled "The Supreme Court: 1947," which was published in the January 1947 issue of Fortune Magazine. He coined the phrase to group the American Supreme Court justices at the time into three categories: judicial activists, self-control advocates, and judges who fell somewhere in the middle.

With the landmark case of Brown v. Board of Education (1954), in which the US Supreme Court ruled unanimously (9-0) that racial segregation in public schools violated the Fourteenth Amendment to the Constitution, which forbids states from depriving anyone within their jurisdictions of equal protection under the law, the American judiciary also used the power of judicial review to usher in the era of judicial activism.

In addition, the Supreme Court secured such rights that were expressly stated in the Constitution in the Plessy v. Fergusson (1896) case, which saw it repeal legislation that considered Black people as a separate class. The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.The foundation of Judicial Activism in India was laid down by Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.

Judicial Outreach vs. Judicial Activism:

Judicial activism is defined as "a judicial philosophy which motivates judges to stray from the customary precedents in favour of progressive and new social policies" by Black's Law Dictionary. Judicial activism refers to court decisions that are made based on the judges' political, personal, and prudent judgement, as opposed to the law that is in effect at the time.

The distinction between judicial activism and overreach is quite fine. Simply put, judicial overreach is the word used to describe when judicial activism goes too far and turns into judicial adventurism.

Constitutional Rules:

  1. In India, judicial activism means that the Supreme Court and the high courts, but not the lower courts, have the power to declare laws invalid and unconstitutional if they violate or are inconsistent with one or more constitutional provisions.
  2. The four main Constitutional clauses, Articles 13, 32, 226 and 142, are the ones that the Indian courts use to support their right to judicial review.
  3. The higher judiciary in India has the authority to declare any legislative, executive, or administrative action void if it is in violation of the Constitution under the provisions of Article 13 read with Articles 32 and 226 of the Indian Constitution.
  4. The Supreme Court derives broad authority from Article 142 to carry out legislative and executive duties in order to achieve full justice. The judicial system in India is governed by this provision.
  5. According to Article 13, all laws that violate or interfere with one or more fundamental rights are unconstitutional. In other words, it expressly makes room for the judicial review doctrine.
  6. According to Article 32 of the Indian Constitution, people have the right to petition the Supreme Court for justice if they believe their rights have been "unduly deprived." The Supreme Court's writ power is discussed in this article.
  7. Every High Court is authorised by Article 226 to issue writs, orders, and instructions to any individual or authority including the Government for the enforcement of fundamental rights as well as other legal rights under its own local jurisdiction.
  8. According to Article 142, "the Supreme Court may pass such decree or make such order in the exercise of its jurisdiction as is required for doing complete justice in any cause or matter standing before it.

How Did Judicial Activism Form?

  1. Other aspects of government are ineffective, such as through delays, non-responsiveness, red tape, and corruption.
  2. Due to causes like absenteeism, coalition politics, legislative apathy, etc., the legislative branch has failed to pass laws on a number of current topics.
  3. Increasing legal complexity against a backdrop of globalisation.
  4. Public interest litigations (PILs) are increasing as a result of public awareness raising efforts, as well as the media's and civil society organization's active participation.

Cases Of Judicial Activities:

  1. In the Maneka Gandhi v. Union of India case, the court determined that a person's right to life and personal liberty can be violated by a law as long as the process followed is reasonable, fair, and just. It has thus introduced the American idiom "due process of law."
  2. Union Carbide Corporation vs Union of India: Supreme Court awarded the compensation of $470 million to the victims. Post Union Carbide-Bhopal gas case, government created legislations such as environmental Acts, air Act, water Act, rules, regulations, etc.
  3. Vishakha vs State of Rajasthan: The court laid down guidelines for protection of women from sexual harassment at workplace, popularly known as the Vishakha guidelines.
  4. Cleansing of the Taj Mahal: The marbles of the iconic place were yellowing on account of Sulphur fumes from the surrounding industries. On account of the court's efforts over a period of years, the heritage has been restored to its original beauty.
  5. Hussainara Khatoon v. State of Bihar: Undertrials were suffering in jails for greater periods than the maximum punishment which could have been inflicted on them, as their very existence was forgotten by the criminal justice system. The court directed the State to provide free legal facilities to the under trials so that they could get bail or final release.
  6. Olga Tellis Vs Union of India case: The court said that the outlines of Article 21 which provides right to life also include the Right to livelihood as well as shelter. The Supreme Court ruled that it is the state's responsibility to rehabilitate people instead of displacing them.
  7. Vineet Narain vs Union of India: The Su Type equation here.i preme Court issued directions to the government in order to bring transparency and accountability in the Central Bureau of Investigation (CBI).

Cases Of Judicial Outreach

  1. Case involving the allocation of coal blocks: In 2014, the SC revoked the allocation of coal blocks that had been granted from 1993 onward and assessed a fine of �295 per tonne of coal that had already been extracted over the years. For the coal mining industry in India, this was a serious setback.
  2. The Supreme Court issued an absolute ban on the sale of alcohol within 500 metres of all national and state highways across the nation in response to petitions filed against allowing alcohol vendors to operate along national highways.
  3. Drought management fund establishment: In the case of Swaraj Abhiyan v. Union of India, the Supreme Court of India ordered the Union government to establish a National Disaster Mitigation Fund within three months. Given that the year's appropriations bill had already been passed and that the federal and state disaster response funds already existed, this course of action created concerns.
  4. The court has virtually removed the constitutional prerogative of the President of India to nominate judges based on its own rulings, known collectively as the Three Judges Cases. Additionally, it ruled that the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act were unconstitutional because they violated judicial independence.
  5. Board for the Control of Cricket in India (BCCI) reform: The Supreme Court established the Mudgal Committee and the Lodha Panel to look into the betting allegations and make recommendations for BCCI reform (BCCI). Since the BCCI is a private organisation, this is unexpected.
  6.  Police reforms: In Prakash Singh v. Union of India, 2006, the Supreme Court compelled States all over India to pass new legislation to regulate police forces. The Court ordered the Central and State Governments to abide by a series of seven directions outlining realistic steps to begin police reform.

Considerableness Of Judicial Review:

  1. Complements legislative action: In some crucial areas, judicial legislation can step in where there is a gap in the law. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which was created as a result of the Vishaka guidelines
  2. maintains the constitution By offering a broader definition to certain important constitutional provisions, such article 21, it also aids in the protection of the constitution's spirit
  3. Judicial review empowers courts to stop any measures that would compromise the constitution, serving as a check and balance.
  4. People's trust in the justice system is improved through judicial activism, which revitalises and modernises the judiciary through effective interventions.V. Ensures sound governance: The judiciary is working to increase openness and accountability in government through judicial activism

Judicial Review Comments:

  1. Undermines the people's will: Democracy's fundamental concept of majority rule. The judiciary, in contrast, is an institution that is not elected. When using its judicial review authority to find a piece of law illegal, the court invalidates the popular will that was expressed in the election of the legislature.iolates the balance of power The fundamental design of the constitution includes the separation of powers. None of the republic's three distinct organs may assume the duties delegated to the other. However, this premise is broken when judges make laws.
  2.  Judges are answerable to the Parliament, which is answerable to the people, according to the executive. However, unlike MPs, judges are not chosen by the general public, which lessens their feeling of accountability.
  3. Decision-making competence: Judges who issue laws may not have the necessary knowledge. Instead of using factual information or studies to support their conclusions, they frequently rely on their own personal viewpoints and beliefs.
  4. Has an impact on how the executive functions: The executive functions on the basis of the 4F, i.e. Framework, function, fund, and functionary. The executive could be negatively impacted by judicial overreach. For instance, the court disregarded substantial concerns about the states' excise tax income and possibility for widespread unemployment when it ordered the prohibition of alcohol along highways.
  5. Promotes bad governance: Court activism encourages legislative inefficiency since the legislature may leave uncomfortable decisions for the courts to decide. Additionally, frequent court interventions might erode public confidence in the elected administration.


The Indian judiciary has been actively involved in society through PILs and other forms of activism. Due to this, the rights of underprivileged groups in society have been restored. TheSupreme Court and the High Courts have supported progressive social programmes, and the public has high regard for the judicial system as a whole. However, it is crucial to sustain the separation of powers principle and the authority of the three branches of government in a democracy.

Onlywhen the executive and legislature are alert and effective is it conceivable. The Judiciary should exercise caution when entering areas of responsibility that are outside of its purview. Through PILs and other types of activism, the Indian court has taken an active role in society. The rights of socially marginalised people have been reinstated as a result.

The people has high regard for the legal system as a whole and the Supreme Court and High Courts have backed progressive social programmer. IN a democracy, it is essential to uphold the idea of the separation of powers and the legitimacy of the three branches of government. It is only conceivable when the government and legislature are vigilant and effective. When assuming responsibilities outside of its scope, the judiciary should proceed with caution.

Written By:
  1. Rahul - (BB.A.LL.B) 7th SEM, Geeta Institute of Law
  2. Ritik - (BB.A.LL.B) 7th SEM, Geeta Institute of Law

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