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Judicial Activism is “A Symbol of Hope for the People of India”

During the years 1951-75, our country witnessed the open conflict between the legislative and judicial branch of the state. The parliament asserted its supremacy. The Supreme Court asserted its power of Judicial Review. It resulted in a series of constitutional amendments in which the parliament tried to limit the power of judicial review. A series of cases in Courts came up where validity of amendments are challenged.

One of such case was referred to Supreme Court in 1965, where the validity of Punjab Security of Land Tenures Act, 1953 was challenged. Since this Act was included in the 9th Schedule to the Constitution by the Constitution (Seventeenth) Amendment Act, 1964, the validity of the said Amendment Act was also challenged. While deciding the case, the then Chief Justice Subba Rao introduced the doctrine of prospective overruling, formulated by American jurists like George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo. He used this doctrine to preserve the constitutional validity of the Constitution (Seventeenth Amendment) Act, legality of which had been challenged. He held that: We declare that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental right. Golaknath v. State of Punjab, AIR1). The judgment was overruled by Kesavananda Bharati case in 1973 in Kesavananda Bharati v. State of Kerala2). This judgment of Supreme Court was unprecedented and was a deviation from the traditional Blackstonian principle. It was a clear instance of judicial activism and was the first application of the doctrine by the Indian Courts. Judicial activism began with Justice Krishna Iyer. Bar believe his legacy had a great impact on the judges who came later.

Understanding of principles of judicial activism

To better understand the concept of judicial activism, we have to understand function of judiciary under the concept of separation of power. The doctrine of separation of powers among the three organs of the State is accepted in India. Of course this is not accepted with its absolute rigidity. The elected legislature can pass, amend and repeal any laws in India. Judiciary has the power to interpret the laws.

There are two contradictory processes of thoughts governing the function of the judiciary, the judicial activism and judicial restraint. My Endeavour is to focus on the concept of judicial activism. I will begin with defining the concept. Then I am describing its historical development. Then I will state the major criticism of the concept countering them with valid reasons. Finally I will conclude the discussion with my view.


Judicial Activism is always meant different things to different people. On the one hand it is equated with judicial creativity; on the other it is being labeled as judicial terrorism.

Black's Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

Another view is that ‘Judicial Activism’ is a philosophy of judicial decision making by which judges perform the duty enshrined upon them in the Constitution consistent with the needs of the time.

The judicial activism can be described as a concept. In this concept, Judges perform legislative and executive functions due to lack of efficient legislation and administration. It provides reliefs to wronged citizens.

Historical Development

The term ‘Judicial Activism’ was coined by Arthur Schlesinger Jr. in his article “The Supreme Court: 1947”, published in Fortune magazine in January, 1947. The concept of judicial activism was born along with the concept of judicial review in America in the famous case of Mar Bury vs. Madison3) in 1803.

Between 1935 and 1939, the American Supreme Court had struck down several New Deal measures, proposed by U.S. President F.D. Roosevelt to bolster economic recovery during the Great Depression. This led to the charges from New Deal supporters that a narrow majority of the court was obstructionist and political.4)

Over the years the U.S. Supreme Court has oscillated between periods of judicial restraint and judicial activism, depending on the Chief Justice, presiding over the bench. In Britain, the judges had followed the principle of literal interpretation of legislation for a long time, whose proponents were Jeremy Bentham, Sir Francis Bacon and the likes. But this principle led to more absurdity. For instance, in R vs. Harris 374 US 483 (1954), Court did not considered the act of biting off the victim’s nose within the meaning of the offence ‘to stab cut or wound’, by literally interpreting the statute and hence overturned the conviction.

But in early sixties, Lord Reid, Lord Denning and Lord Wilberforce, established the doctrine of purposive interpretation.5) Purposive interpretation was accepted by the House of Lords in the case of Pepper vs. Hart6)

The Indian Constitution expressly provides the scope for judicial review in the Article 13. It gives the Supreme Court and High Courts power to decide the constitutionality of the executive and legislative acts. If the laws made by the State are inconsistent with the provisions of the constitution, it can be declared void by the Courts. The Constitution paves way for judicial activism through Articles 13, 19, 21, 32, 226, 141 and 142. Article 19 guarantees to a citizen several rights and freedoms and provides for reasonable restriction on those rights. It vested the power to decide reasonableness of a restriction on the courts. Article 21, protecting the life and personal liberty of a person, is expanded over the years by the Indian courts through several landmark decisions and is interpreted as the situation demands for the welfare of the society.

Article 32 provides that any Indian citizen has right to move to the Supreme Court for the enforcement of the rights conferred by the Part III of the constitution. Article 32 is limited to fundamental rights stated in the Part III of the constitution. Article 226, the power of High Courts to issue writs is much wider in scope. The High Courts can give reliefs in case of quasi-Judicial Tribunals and authorities or other acts by such authorities, even though the acts do not infringe the fundamental rights. The Supreme Court and the High Courts can issue writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari, while exercising their power under Article 32 and 226, respectively.

Article 141 provides that the order declared by the Supreme Court shall be binding on all courts within the territory of India and thus, giving the Supreme Court judgments an appearance of the law. Article 142 of the Constitution vested enormous power on the Supreme Court to pass any order as necessary for doing complete justice in a case in exercise of its jurisdiction and such order would be enforceable throughout the India. Thus our Constitution makers had envisioned an active judiciary for India. But the Supreme Court formally recognized and explained the term in Golaknath vs. Punjab, where the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution. In Kesavanand Bharati vs. Kerala, the apex court established the basic structure doctrine.

The Supreme Court engaged in active judicial activism through a series of rulings in between 1977 and 1998. Most of the critics called this phase as the apex court’s efforts to overcome the negative images it has created due to the decision in the Habeas Corpus case A.D.M. Jabalpur v. Shiv Kant Shukla7). It was expanded in Menaka Gandhi case8), Sunil Batra v/s Delhi Administration9), Shriram food and fertilizer case M.C Mehta v/s Union of India10), Visakha vs. State of Rajasthan11), M.C Mehta vs. State of Tamil Nadu12), are some of the examples.

The requirement of ‘locus standi’ for initiating proceedings is not accepted in S.P Gupta vs. Union of India13). The advent of public interest litigation increased the scope of judicial activism. In many instances, Court took suo motto cognizance of matters involving the public interests through letters addressed to sitting judges. As a result of Judicial Activism, presumption of Marriage is held as more significant. The bar on maintenance had been removed. The judiciary has time and again exercised judicial control of interferences by the police or other law enforcing agencies with the individual’s right to liberty. This is an essential feature and one of the fundamental principles of a democratic society.

It is important here to look into the decisions that are rendered by the Courts in order to understand the implication of the law, the guidelines and the role that the Judiciary plays in improving the mechanism of the law relating to arrest. D K Basu v. State of West Bengal.

In Rudul Sah v. State of Bihar judicial activism added a new dimension. It raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty. Judicial activism can be witnessed regarding the framing and implementation of various food schemes. 2G spectrum and commonwealth scams are recent examples where the apex court engaged in judicial activism to check corruption.


The concept judicial activism has been criticized from its very inception. Thomas Jefferson referred it as the “despotic behaviour” of Federalist federal judges, in particular, John Marshall. Some labels it “judicial terrorism”, while it is called by others, the unchallenged authority acquired by the higher judiciary.

The criticism of Judicial Activism is that it is unconstitutional as the authority of legislative and executive is usurped by the judiciary which is not elected by the people. It is criticized that allowing the judiciary to rule on the validity of the enactments passed by a popularly elected legislature amounts to a violation of the idea of ‘separation of powers’.

My Support in favour of Judicial activism

The founding fathers of our Constitution placed enormous powers in the hands of the Judiciary–Justice R.C. Lahoti14)

Supreme Court is the guardian of Fundamental Rights of Indian citizens. According to Dr. B.R. Ambedkar, the provision for judicial review constituted the heart and soul of the constitution.15)

There are many articles in the constitution, Article 32, 141, 142 and the likes, which show the vision of constitution makers about judiciary playing a predominant role in upholding the rule of law.

The question of judiciary usurping the authority of legislative and executive is aptly answered by C.N Irani, “When the executive refused to apply law and willfully constantly and conspicuously refused to do their duty, it falls to the judiciary to act in defense of the constitution and the mandate of the rule of law and equality before law16).

Countering the arguments in regards of ‘separation of power’, as Alladi Krishnaswami Ayyer’s had remarked, while Supreme Court’s function may be one of interpreting the Constitution, it cannot in the discharge of its duties afford to ignore the social, economic and work tendencies of the time, which furnish the necessary background.17)

As said by Justice P.N. Bhagwati: this theory has been evolved in order to insulate judges against vulnerability to public criticism. It also helps judges to escape accountability for what they decide. They can plead helplessness by saying that it is a law made by the legislature and they have no choice but to give effect to it.

It cannot be denied that every doctrine of common law is developed by a judge at some point of time. Lord Reid, English judge put it We do not believe in fairy tales anymore, so we must accept the fact that for better or worse judges do make law.18)


Judiciary is known as the temple of justice. The cost of litigation is quite high. An Indian litigant, moves to court when all other options fail. If the court would deny him relief, exercising restraint, then it would be a grave miscarriage of justice. In India the parliament is adjourned most of the time due to political reasons. The executive branch fails to implement the laws. The police and other authorities often misuse their power. The pro-active action by the judiciary is very much needed.

I agree with the view that Supreme Court should regulate the proceedings regarding the PILs. Justice Venkataramayya of Supreme Court on retirement observed “Judges should resist temptations. They should not be seen with gamblers, punters and economic offenders; what will be a judge’s image if he is found with such person”.

He further said, “A single dishonest judge not only dishonours himself and disgrace his office but jeopardizes the integrity of the entire judicial system”.

Likewise, former chief justice of the Supreme Court E.S. Venkataramaiah bemoaned “judiciary in India has deteriorated in standards because some of the Judges are willing to be influenced by lavish parties and whisky bottles”.

Thus he condemned the habitual “dine and wine judges.”

The Dinesh Goswami committee on Judicial reform and other bodies have stressed the need for effective measures to deal with misbehaviour of judge. They have suggested various way and means to check the growing evil. There is an urgent need for punitive corrective in the superior judiciary. It is necessary to stop the indiscriminate use of the system by private interested persons for their selfish motive. The court should entertain only those PILs which posed a valid concern of public welfare. It is not be fair to disrepute the whole system. Judicial activism has opened the door of justice for all sections of society. Judicial Activism is very essential for upholding spirit of democracy. It provides a mechanism to counterbalance the majoritarianism. Law making may be a function of the legislature, but judiciary also plays a very important role in upholding the rule of law. In the words of Justice P.N. Bhagwati, “The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.”

About the Author

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1967 SC 1643
AIR 1973 SC 1461
5 U.S. 1371803
Judicial Procedures Reform Bill of 1937’ - Wikipedia
Justice R.C. Lahoti, ‘Judicial Activism’- Constitutional Obligation of the Court’(B.M. Patnaik Memorial lecture, Cuttack, 22 January 2005) cited at 2005(1) CJD 1, p.4.
1993 AC 593
AIR 1976 SC 1207
AIR 1978 SC 597
AIR 1980 SC 1759
1986, vol 2 SCC 176
AIR 1997 SC 417
AIR 1991 SC
1981 Supp SCC 87
‘Judicial Activism’- Constitutional Obligation of the Court’ (B.M. Patnaik Memorial lecture, Cuttack, 22 January 2005) cited at 2005(1) CJD 1, p.5.
15) , 17)
Constituent Assembly Debates, Vol.7.
‘Cry the beloved Country’, The Statesman (New Delhi, 9 August, 1997)
Justice P.N. Bhagwati, ‘Judicial Activism in India’ (1986) Volume 17, Issue 1 Gargoyle Alumni Magazine, University of Wisconsin Law School, Wisconsin, USA.