Impact of judicial activism in India

Editor.

Author: Nyasa Tahim, a student of Vivekananda Institute of professional studies

Abstract

“The role of judiciary in interpreting the existing laws according to the needs of the times and filling the gaps appears to be the true meaning of judicial activism” – Justice J.S. Verma. Administrative law deals with the actions of government organs which impacts individuals; ensuring that their actions are legal and justified. Judicial Activism ensures active role by the Indian judiciary in ongoing matters insuring rights of the Indian citizens. It traces its evolution from early judicial interpretations to landmark decisions such as Kesavananda Bharati v. State of Kerala, Vishaka v. State of Rajasthan, to the ongoing matters in the hon’ble Supreme Court; The State of Tamil Nadu vs. the Governor of Tamil Nadu & Anr. a recent judgment, which gives a broader understanding of evolving contours of judicial activism in contemporary India. This research paper explores the idea of Judicial Activism as a part of judicial review, where courts take an active role in interpreting laws, filling constitutional gaps, and ensuring justice to all through tools like Public Interest Litigation. 

Keywords: judicial activism, judicial review, administrative law

What is Judicial Activism?

The term ‘judicial activism’ refers to the “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”, according to the Black’s law dictionary. The term” judicial activism” was coined for the first time by Arthur Schlesinger Jr. in his article “The Supreme Court: 1947” published in Fortune magazine in 1947.
Judicial activism is when the court takes power to review the actions taken by state. Judiciary’s power is a part of basic structure of Indian Constitution. Judicial activism means the judge’s personal understanding over a decision constructing an active role in the ongoing legal dispute. When the judges rely on their own values and beliefs, it leads to a better evaluation of the circumstance and they are able to pave a better way towards a reasoned judgment. In broader sense, the term judicial activism refers to the interpretation of law in a creative manner by judges. As stated by Justice V.R. Krishna Iyer, a former judge of the Supreme Court of India, ‘Judicial Activism is the essence of democracy’. The judiciary plays an integral role in upholding and protecting the rights of citizens in a country. Thus, active role and participation of the judiciary in upholding the rights of citizens and preserving legal system of the country is referred as judicial activism.

Origin of Judicial Activism in India

Judicial activism, though rooted in the United States, has developed a distinct character in India. Tracing its origin is challenging, but some scholars point to as early as 1893, when Judge S. Mahmud emphasized that a case could be heard only if someone spoke in its favor, marking early evidence of judicial initiative. Over time, the concept evolved through landmark decisions of the Supreme Court.

The roots of judicial activism in India lie in English concepts of equity and natural rights, expressed through judicial review. Internationally, Marbury v. Madison is considered the foundational case. In India, judicial review has been strengthened since 1973, particularly through the recognition that Parliament cannot amend the Constitution in a way that alters its “basic structure,” as established in Kesavananda Bharati v. State of Kerala (1973). Other landmark cases reflecting judicial activism include Vishaka v. State of Rajasthan (1997), Sakal Newspapers Pvt. Ltd. v. Union of India, Golak Nath v. State of Punjab (1967), Maneka Gandhi v. Union of India, Justice K.S. Puttaswamy (Retd.) v. Union of India, Minerva Mills v. Union of India, and Hussainara Khatoon v. Home Secretary, State of Bihar.

Article 13 of the Constitution empowers courts to strike down laws that violate fundamental rights, giving the judiciary the role of guardian of the Constitution. Judicial activism is exercised when courts actively intervene to protect citizens’ rights, promote constitutionalism, and uphold the rule of law. The 1973 Kesavananda Bharati case was pivotal, introducing the “basic structure” doctrine, limiting Parliament’s amendment powers under Article 368, and reinforcing judicial oversight.

Judicial Activism as Part of Judicial Review

Judicial review allows courts to examine the legality and constitutionality of legislative and executive actions, ensuring a system of checks and balances among the three branches of government. While judicial review relies on legal precedents to ensure justice, judicial activism extends this role by interpreting laws expansively, sometimes incorporating broader societal values.

Article 142 of the Constitution grants the Supreme Court wide powers to provide complete justice in any matter pending before it. However, in Bar Association v. Union of India, the Court clarified that these powers are curative and cannot override substantive law or constitutional provisions. Judicial activism, even under Article 142, cannot create new legal rights by ignoring existing statutes.

Courts must exercise judicial activism with restraint, grounding decisions in legal principles and reasoned judgment. Judicial activism and judicial restraint are complementary; excessive activism without restraint can lead to judicial overreach, creating uncertainty about the roles of the state’s organs. Properly exercised, judicial activism strengthens constitutional governance and protects citizens’ rights, working hand-in-hand with judicial review.

Rise of Judicial Activism in India 

  • Public interest litigation (PIL) Has been one of the most important tools of judicial activism in India. It allows individuals or organization irrespective of the caste, class or any unprivileged group to approach the judiciary seeking legal remedy in cases where there is a violation of rights that affect a large section of society. PIL, has been a manifestation of judicial activism which has introduced a new dimension regarding judiciary’s involvement in public administration and implementation. The emergence of PIL has been important in many ways. For instance, the principle of ‘absolute liability’ was formulated in Oleum Gas Leak case. The ‘Public Trust Doctrine’ emerged from Kamalnath Case. Furthermore, the Supreme Court has given variety of guidelines with respect to filing of PIL in various cases like Ratlam Municipality Case, Oleum Gas and Ganga Pollution Case etc.
  • Judicial activism in India has played a significant role in advancing social justice and protecting the rights of vulnerable groups. One of the notable areas is women’s empowerment. The judiciary has intervened to enhance awareness and improve living and working conditions for women. In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court ensured justice by extending maintenance rights beyond traditional interpretations of Muslim law. Similarly, in Vishakha v. State of Rajasthan, the Court issued landmark guidelines to prevent sexual harassment at the workplace, establishing standards still followed today.
  • Beyond gender justice, judicial activism has impacted other social issues. The judiciary has intervened in environmental protection (M.C. Mehta v. Union of India), bonded labour (Democratic Rights v. Union of India), inhuman treatment in prisons (Sunil Batra v. Delhi Administration), and child welfare (Lakshmi Kant Pandey v. Union of India). In Rudal v. State of Bihar, the Supreme Court recognized the public’s right to information as an essential component of participatory democracy and the right to life under Article 21. Through such interventions, courts have often acted as a voice for marginalized groups, including undertrial prisoners, bonded labourers, and sex workers, seeking redress against arbitrary government actions or policies that disadvantage the poor.
  • A key reason for the rise of judicial activism in India has been the inefficiency or inaction of the legislature and executive in addressing social issues. When these branches fail to protect fundamental rights, citizens turn to the judiciary for remedies. This reinforces the system of checks and balances, giving courts the authority to act as guardians of the Constitution.

Limitations of Judicial Activism

While judicial activism can drive social reform and enhance the responsiveness of the judiciary, it is not without limits. Courts must operate within constitutional and legal boundaries, ensuring that their decisions are grounded in jurisprudential principles. Overstepping these limits can lead to judicial overreach and undermine public trust.

Another concern is the potential inconsistency in judgments. Different judges may interpret laws differently, which could create uncertainty. Therefore, judges must prioritize statutory provisions and established legal frameworks, exercising caution to avoid letting populist pressures influence their decisions.

Conclusion

Judicial activism and judicial review are closely related but not identical. Judicial review focuses on assessing whether legislative and executive actions comply with the Constitution, while judicial activism involves a proactive approach to interpreting laws and addressing societal issues. Effective judicial activism requires creativity, skill, and caution to maintain the integrity of the judiciary. Courts must innovate within constitutional limits, ensuring that public admiration does not compromise impartiality. Properly exercised, judicial activism strengthens democracy by protecting rights, promoting justice, and reinforcing the rule of law.

References 

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