DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY, VISAKHAPATNAM, A.P., INDIA

RESEARCH PAPER TITLE

JUDICIAL ACTIVISM IN INDIA

SUBJECT
SOCIOLOGY

NAME OF THE FACULTY-

P. LAKSHMIPATI RAJU

Name of the Student- ANIMESH

Roll No.- 2019LLB062

Semester- II

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 Table of Contents
ACKNOWLEDGEMENT................................................................................................................................3

Abstract.............................................................................................................................................................4

INTRODUCTION............................................................................................................................................5

History of Judicial Activism.............................................................................................................................7

Power of Judicial Review.................................................................................................................................9

The Way Forward….......................................................................................................................................10

Prafullachandra Natwarlal Bhagwati..........................................................................................................11

Activism: Various theories..........................................................................................................................12

Theory of Vacuum Filling...........................................................................................................................12

Theory of Social Want................................................................................................................................13

Judicial Activism in India: Curse or Blessing.............................................................................................13

CONCLUSION...............................................................................................................................................17

CASE REFERENCE......................................................................................................................................18

REFERENCES...............................................................................................................................................18

ONLINE SOURCES...................................................................................................................................19

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 ACKNOWLEDGMENT

I would like to thank my faculty Dr. Lakshmipati Raju whose guidance helped me a lot with
structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present way.

I would like to extend my gratitude to my parents and all those unseen hands that helped me out at
every stage of my project.

Abstract

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Being a democratic republic, India having separation of power between the executive, legislature and
judiciary. But we might witness a possible long term social and political implications stemming from
judicial intervention in policy questions. Now the major question to be answered is whether judicial
activism contemplates judges assuming legislative or executive functions. The Judicial Activism in India
can he witnessed with reference to the review power of the Supreme Court under Article 32 and Article 226
of the Constitution particularly in Public Interest Litigation. The definition of the word “judicial activism”
in itself is not very clear. Judicial activism refers to judicial rulings that are suspected of being based on
personal opinion, rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1] The
definition of judicial activism and the specific decisions that are activist are controversial political issues.
The question of judicial activism is closely related to constitutional interpretation, statutory construction,
and separation of powers. Judicial activism generally describes judicial rulings suspected of being based on
personal or political considerations rather than on existing law. According to the Black's Law Dictionary 
judicial activism is known as a philosophy of judicial decision-making whereby judges allow their personal
views about public policy, among other factors, to guide their decisions. The Supreme Court of India is the
highest judicial forum and the final court of appeal of India, established under Constitution of India,
according to which the Supreme Court is the highest constitutional court and acts as the guardian of
Constitution. India has an integrated and yet independent judiciary.

Since independence, the judiciary has played a very active role in dispensing justice since the A K Gopalan
vs State of Madras case1 followed by the Shankari Prasad case, etc. However, the judiciary remained
submissive until the 1960s but its assertiveness started in 1973 when Allahabad High Court rejected the
candidature of Indira Gandhi. The introduction of public interest litigation by Justice V.R. Krishna
Iyer further expanded its scope.

INTRODUCTION

“Everyone scorns judicial activism, that notoriously slippery term.”

1
AIR 1950 SC 27.

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From time immemorial, humankind has struggled to achieve better standards of living. Accordingly, ‘the
advent of a world in which human beings shall enjoy freedom of speech and belief, and freedom from
fear and want’ has been acknowledged as ‘the highest aspiration’ of humanity. To effectively realise this
aspiration, which I broadly classify as protection of human rights, governmental functions are divided
between the executive, legislature and judiciary, in line with principles enunciated by Montesquieu.

The Black's Law Dictionary defines judicial activism as a:

Judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favour
of progressive and new social policies which are not always consistent with the restraint expected of
appellate judges. It is commonly marked by decisions calling for social engineering and occasionally
these decisions represent intrusions in the legislative and executive matters.

The courts have gradually abandoned their proper role of policing the structural limits on government and
neutrally interpreting the laws and constitutional provisions without personal bias. Judicial activism occurs
when judges decline to apply the Constitution or laws according to their original public meaning or ignore
binding precedent and instead decide cases based on personal preference. Labeling as “activist” a
decision that fails to meet this standard does not express policy disagreement with the outcome; it
expresses disagreement with the judge’s conception of his or her role in our constitutional system.

The actual experience of a courtroom clearly bears witness to the tendency on part of some judges to pose
incisive questions before the practitioners. This may have the consequence of proceedings being
judiciallydirected to a certain degree. While this literal understanding of activism from the bench may
have its supporters as well as detractors, the focus of my paper will be on another understanding of
‘judicial activism’.In the Indian context, there has been a raging debate on the proper scope and limits of
the judicial role –especially of that played by the higher judiciary which consists of the Supreme Court of
India at the Centre and the High Courts in the various States that form the Union of India. The terms of
that debate have been broadly framed with respect to the considerations of ensuring an effective
‘separation of powers’ between the executive, legislature and the judiciary as well as concerns about the
efficacy and legitimacy of judicial interventions in the long-run.

With the framing of the Constitution of India, the three wings of efficient governance came into
exsistence, namely the legislature, the executive and the judiciary. The Constitution has provision for
separation of powers and hence divides the powers and areas of all these three machineries. However
sometimes with the failure of the legislature and the executive, the separation of power remains a theory

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only in the text book and the third wing of governance, the judiciary assumes powers unparalleled under
the pretext of judicial review, which is a very basic feature of the Constitution of India. The Indian
judiciary has taken upon itself the task of ensuring maximum freedom to the masses and in the process, to
spur the executive and the legislature to work for public good. However, this changing stance of the
judiciary from moderate to active role has invited wrath from some sections of the society, criticism from
some others and support and cheers from still other sections. Some political scholars feel that the
judiciary is usurping powers in the name of public interest2, while according to others, judicial activism
and interference is actually preventing the executive from going astray3.

The Chief Justice of India Adarsh Sen Anand (as he then was) has realized that the real source of strength
of the judiciary lies in the public confidence in it 4 and the judges have to make certain that this
confidence is not nowhere to be found.

The notion of judicial activism found its roots in the English concepts of ‘equity’ and ‘natural rights’. On
the American soil, these concepts found appearance in the concept of ‘judicial review’.

The place of ‘judicial review’ In post-independence India, the inclusion of explicit provisions for ‘judicial
review’ were necessary in order to give effect to the individual and group rights guaranteed in the text of
the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly,
had described the provision related to the same as the ‘heart of the Constitution’. Article 13(2) of the
Constitution of India prescribes that the Union or the States shall not make any law that takes away or
abridges any of the fundamental rights, and any law made in contravention of the aforementioned
mandate shall, to the extent of the contravention, be void.

History of Judicial Activism

“Judicial activism is a sharp-edged tool which has to be used as a scalpel by a

skilful surgeon to cure the malady. Not as a Rampuri knife which can kill.”

2
Rajinder Sacher, “Judges as Governors”, The Indian Express, August 4, 1999, p. 8.
3
A.T. Thiruvengadam, “A Case of Institutional Conflict”, The Hindu, April 27, 1999, p. 21
4
Justice A.S. Anand in “CJI defends Judicial Activism”, The Hindustan Times, October 30, 1998, p.10.

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The first landmark case in this view was the case of Marbury v. Madison10. In this case, for the first time
the judiciary took an active step and took a step above the legislative actions. Marbury was chosen Judge
under the Judiciary Act of 1789 by the U.S. Federal Government. Though the warrant of appointment
was signed it could not be delivered. Marbury brought an action for issue of a writ of mandamus. By
then, Marshall became the Chief Justice of the Supreme Court having been appointed by the outgoing
President, who lost the election. Justice Marshall faced the imminent prospect of the Government not
obeying the judicial fiat if the claim of Marbury was to be upheld.

In a rare display of judicial statesmanship asserting the power of the Court to review the actions of the
Congress and the Executive, Chief Justice Marshall declined the relief on the ground that Section 13 of
the Judiciary Act of 1789, which was the foundation for the claim made by Marbury, was
unconstitutional since it conferred in violation of the American Constitution, original jurisdiction on the
Supreme Court to issue writs of mandamus. He observed that the Constitution was the fundamental and
paramount law of the nation and "it is for the court to say what the law is”

He concluded that the particular phraseology of the Constitution of the United States confirms and
strengthens the principle supposed to be essential to all written Constitutions. That a law repugnant to the
Constitution is void and that the courts as well as other departments are bound by that instrument. 11 If
there was conflict between a law made by the Congress and the provisions in the Constitution, it was the
duty of the court to enforce the Constitution and ignore the law. This judgment received lots of criticisms
from different quarters, but judicial review was here, and it was here to stay. In the initial stages, only in
respect of substantive laws, the doctrine of due process was applied but later the procedural laws also
were brought within its purview. Between 1898 and 1937, the American Supreme Court declared 50
Congressional enactments and 400 State laws as unconstitutional.12 With the power of judicial review up
in its sleeves, the American judiciary started the modern concept of judicial activism in 1954 with the
landmark judgment in Brown v. Board of Education,. Starting from this judgment and by a series of
judgments after this, the Supreme Court of America ruled out all the laws which segregated the Negroes
from all the fields of day to day life. The earlier position taken in Plessy v. Ferguson, that blacks could be
treated as a separate class but must be provided with equal facilities - separate but equal - founded on
racial discrimination was rejected by the Supreme Court at the risk of disturbing the institutional comity
and delicate balance between the three organs of the State. Not only did the Court abolish the laws which
did not ascribe to the prescribed Constitutional norms, but also encompassed more rights which were not
clearly provided for in the Constitution.

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 Power of Judicial Review

The Indian judiciary has been constitutionally vested with the power of review to keep the Executive and
Legislature within constitutional boundaries. The Judiciary can strike down any law that is beyond
Parliament’s legislative competence or is violative of the Constitution. Similarly, it can strike down any
Executive action, if there is any patent illegality or arbitrariness to it. A Supreme Court judgement becomes
the law of the land.

While Articles 13, 21, 32, 226 and 227 encompass this power, Article 142 hands a unique, extraordinary
power to our Supreme Court to do ‘complete justice’ in any matter before it. This power has often been
wielded unpredictably. It granted a divorce to a Hindu couple on the ground of irretrievable breakdown of
marriage, even though no such ground exists under the Hindu Marriage Act.

In the Bhopal gas tragedy case, when a review petition sought to re-open the settlement, the Supreme Court
leaned on Article 142 to justify ignoring statutory provisions of the Civil and Criminal Procedure Code
while transferring matters pending before the trial court to itself and quashing the civil and criminal
proceedings to do ‘complete justice’. However, the subsequent trend of judicial decisions seems to suggest
that the Supreme Court recognised the grave danger of ignoring the statutory provisions, which in a
democracy reflects the will of the people. However, the Indian judiciary’s ‘activist’ image is largely
dominated by the actions under the writ jurisdiction.

The Mainstream System of Justice

An efficient mainstream system of civil and criminal justice provides remedies for the enforcement of
rights and duties and is a condition precedent to the existence of the rule of law. Unfortunately, justice is
prohibitively expensive, inordinately delayed and over-technical. A look at the numbers (see graphic)
indicates the pathology of our judicial system, largely due to accumulated neglect. Here lies the paradox:
When it comes to the mainstream system of justice, the Judiciary gets into a very ‘passive mode’. But the
higher Judiciary, functioning under the writ jurisdiction, performs a very ‘activist’ role that could be seen as
‘judicial overreach’.

Judicial review has led to a situation where there is an over-dependence on the higher Judiciary to address
governance deficits of the Executive; the courts ordering even road repair and cleaning of drains.
Consequently, the Executive has taken cover behind judicial orders for discharging its role. While judicial
review has led to several positive developments, it is imperative that the Judiciary does not cross the
Lakshman-rekha as governance by the Judiciary can have serious long-term negative consequences for the
economy.

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In the Supreme Court’s decision in the CVC appointment case, the Chief Justice rightly observed that the
government need not justify its policy decisions in court, but it is accountable for their legality.

A look at major High Court and Supreme Court decisions in recent years shows that they have clearly
transcended the limits and undertaken functions that fall within the domain of either the Legislature or the
Executive. A court is not equipped with the skills and competence to discharge the functions that
essentially belong to the other organs of the State. Judges are neither trained to deal with macroeconomic
policy issues nor do they have the required skills or administrative infrastructure to handle them.

In the long run, the Judiciary will be able to retain its pre-eminent position only if it exercises restraint in
encroaching upon the turf of the Executive and the mainstream judicial system is reformed. The paradox of
‘hyper-active higher Judiciary’ in its writ jurisdiction, but chaotic mainstream system of justice at the
grassroots level is unsustainable in the long term.

The Way Forward…

The quality and speed of the mainstream judicial system can be improved by a comprehensive and
integrative approach, focussed on improving judicial infrastructure and reducing indiscipline.
Improving judicial infrastructure: While the Judiciary enjoys supreme authority, it neither has a
sword nor a purse of its own. While the fear of ‘contempt’ ensures enforcement of judicial decisions,
the Judiciary remains dependent on the government for finances. The total allocation to the
administration of justice in the Eleventh Five Year Plan was only Rs. 1,470 crores. What is required
is a quantum jump in the investment in judicial infrastructure. The increasing scale of trade and
commerce will invariably give rise to commercial disputes and their quick, predictable settlement
and resolution would be crucial. It certainly does not befit a country, which aspires to become an
economic super power, to be ranked 182 in ‘enforcement of contracts’, among the 183 countries the
World Bank examined in its recent ‘2010 Doing Business’ report.

1. Develop discipline in the judicial system: The delays and inefficiency in the mainstream judicial
system could be attributed to the indiscipline that has crept in the way litigations and the adjudicatory
process is managed. Cases linger on for years leading to an unhealthy practice of interim orders with
parties and their lawyers looking for ways and means to obtain interim ‘stays’ so that the matter almost
never reaches a final conclusion.
2. Improve strength of judges: The Law Commission’s 120th Report on ‘Manpower Planning in
Judiciary — A Blue Print’, inter-alia, observed that the strength of judicial officers in India was far less

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compared to their strength in other countries. It recommended that this number be raised to 107 judges
per million.

3. Develop judicial competence, effective case management and use of information technology:
Setting up of a judicial service, reviewing compensation levels, setting up effective management of
time and events in law suits from initiation to resolution and implementing information technology
solutions to creating an accessible database and speeding up judicial work would result in greater
efficiency in the judicial process.

4. Review media role: The ‘activist role’ of the judiciary has given the Fourth Estate a role, which the
framers of our Constitution would have never imagined. The proliferation of 24x7 news channels and
their insatiable hunger for ‘breaking news’, has sometimes resulted in a ‘trial by the media’ without
understanding the seriousness of the issues involved.

Could the media reflect on its functioning, particularly in the context of enabling the functioning of an
effective judicial system? A new privacy legislation scheduled to be introduced in the monsoon
session of Parliament may address some of these concerns.

India cannot afford to let the Judiciary to fail as it is the only ray of hope and protection to the common
man against arbitrary actions of the Executive. It is time for national introspection and a serious debate
on this paradox facing our Judiciary.

Prafullachandra Natwarlal Bhagwati

He is remembered as a pioneer of the Public Interest Litigation and concept of absolute liability was
born on December 21, 1921, in Gujarat. The 17th Chief Justice of India decorated with Padma
Vibhushan and well known for judicial activism in contemporary Indian jurisprudence received his
education in Mumbai from the Elphinstone College, Mumbai. Former Chief Justice of India started his
career from the Bombay High Court and then in July 1960, was appointed as the Judge of the Gujarat
High Court in the year 1960. He even went on to serve as the Governor of Gujarat briefly on two
occasions. In July 1973, P N Bhagwati was appointed, a Judge of the Supreme Court of India. The
family background of Justice Bhagwati is decorated with the father who was himself judge of Gujarat

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 High Court and a brother who was reputed economist, Jagdish Bhagwati and another brother a famous
neurosurgeon. In
Poornima’s Advani publication, Indian Judiciary: A Tribute, it was mentioned, “It was chance
encountered with Mahatma Gandhi, Father of the Nation, that changed his destiny to be a lawyer and
judge. ” Legal luminaries is a section where Team Indian Law Watch covers such legal professionals
who are inspirations for million of our readers.

Contemporary Indian jurisprudence owe a lot to Justice Bhagwati for judicial activism- Habeas
Corpus case, Public Interest Litigation, environmental law, legal aid to the poor accused criminal in a
trial, Christian women’s right to intestate succession and the famous Menaka Gandhi judgment to
name a few have an important positive bearing on both the law of the land and the people of India.
Furthermore, it was with the vision of Justice PN Bhagwati who, along with Justice V.R.
Krishna Iyer who had introduced the concept of judicial activism in India.

• Every person has a right to be heard

• If the person is not able to afford a lawyer for any reason then the state has the duty to provide
the legal assistance free of cost as per article 39A of the Constitution.
• Justice must prevail and the law should take its own course even in these conditions where the
innocent is being deprived of his rights due to incapacity of his to meet the demands of justice
• Justice must not be demanding and it should be served free for those who are unable to
afford it so that to maintain the sanctity of the Article 14 of the Constitution of India.

Activism: Various theories

As far as the origin and evolution of judicial activism go, there are two theories behind the whole
concept. They are:

(i) Theory of Vacuum Filling and

(ii) Theory of Social Want.

Theory of Vacuum Filling

The Theory of Vacuum Filling states that a power vacuum is created in the governance system due to the
inaction and laziness of any one organ. When such a vacuum is formed, it is against the good being of the
nation and may cause disaster to the democratic set up of the country. Hence, nature does not permit this

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vacuum to continue and other organs of governance expand their horizons and take up this vacuum. In this
case, the vacuum is created by the inactivity, incompetence, disregard of law, negligence, corruption, utter
indiscipline and lack of character among the two organs of governance viz. the legislature and the
executive5. Hence the remaining organ of the governance system i.e. the judiciary is left with no other
alternative but to expand its horizons and fill up the vacuums created by the executive and the legislature.
Thus according to this theory, the so-called hyper-activism of the judiciary is a result of filling up of the
vacuum or the void created by the non-activism of the legislature and the executive.6

Theory of Social Want

The Theory of Social Want states that judicial activism emerged due to the failure of the existing
legislations to cope up with the existing situations and problems in the country.

When the existing legislations failed to provide any pathway, it became incumbent upon the judiciary to
take on itself the problems of the oppressed and to find a way to solve them. The only way left to them
within the framework of governance to achieve this end was to provide non-conventional interpretations to
the existing legislations, so as to apply them for greater good. Hence emerged judicial activism. The
supporters of this theory opine that judicial activism plays a vital role in bringing in the societal
transformation. It is the judicial wing of the state that injects life into law and supplies the missing links in
the legislation… Having been armed with the power of review, the judiciary comes to acquire the status of
a catalyst on change.7

Judicial Activism in India: Curse or Blessing

The first few instances in the late 1970’s, the category of Public Interest Litigation (PIL) has come to be
associated with its own ‘people-friendly’ procedures. The foremost change came in the form of the
dilution of the requirement of ‘locus standi’ for initiating proceedings. Since the intent was to improve
access to justice for those who were otherwise too poor to move the courts or were unaware of their legal

5
S. C. Kashyap, “Judiciary-Legislature Interface”, Subhash C. Kashyap (ed.), Judicial Activism and Lokpal, Uppal
Publishing House, New Delhi, 1997, pp. 60-76, at p.71.
6
Nikhil Chakrawartty, “Judicial Activism, Right or Wrong”, Mainstream, March 29, 1997, pp. 3-4, at p. 4.
7
Shailja Chander, Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles, Deep and Deep
Publications, New Delhi, 1998, p. 223.

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entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers. In
numerous instances, the Court took suo moto cognizance of matters involving the abuse of prisoners,
bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This
practice of initiating proceedings on the basis of letters has now been streamlined and has come to be
described as ‘epistolary jurisdiction’. In Public Interest Litigation (PIL), the nature of proceedings itself
does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom
dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial
environment may prevail in cases where actions are brought to highlight administrative apathy or the
government’s condonation of abusive practices, in most public interest-related litigation, the judges take on
a far more active role in the literal sense as well by posing questions to the parties as well as exploring
solutions.

Especially in actions seeking directions for ensuring governmental accountability or environmental

protection, the orientation of the proceedings is usually more akin to collective problem-solving rather
than an acrimonious contest between the counsels.8 Since these matters are filed straightaway at the level
of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present
evidence on record before the start of the court proceeding. To overcome this problem, our Courts have
developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis which are deputed
to inquire into the subject-matter of the case and report back to the Court. 9 These commissions usually
consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal
considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on
a case-by-case basis.

In the field of basic human rights too, the judiciary has been consistently building new linkages of a new
egalitarian democratic and free society in consonance with new universal socio-political and economic
order by evolving some rights as Fundamental Rights under Part III of the Constitution. Some of them are
worth

8
Robert P. George, Judicial and threat to Constitution, President, Family law resarch
9
Shailja Chander, Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles, Deep and Deep
Publications, New Delhi, 1998

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mentioning e.g. right to information10, right to work11, right to get minimum wages22, right to speedy trial12,
right to secrecy13, right against inhuman treatment14 etc. Above all judicial activism itself is the saviour of
one basic human right. As Justice Krishna Iyer states that “The access to justice is the first among human
rights.” . Judicial activism has removed the iron curtain of rigid procedure that stood between public justice
and the court.15

In the case of Sunil Batra v. Delhi Administration20, the Court held that the writ of habeas corpus can be
issued not only for releasing a person from illegal detention but also for protecting prisoners from
barbarous and inhuman treatment. Similarly, the Court in several cases has affirmed prisoners’ rights 16. In
M.C. Mehta v. State of Tamil Nadu,17 the Court ruled out the employment of children in match factories as
it is hazardous and declared various measures aiming at child welfare in some other cases such as
Lakshami Kant Pandey v. Union of India, (1987) 1 SCC 667; Sheela Barse v. Union of India, (1986) 3 SCC
596; Gaurav Jain v. Union of India, AIR 1990 SC 292; Unni Krishanan v. State of Andhra Pradesh, AIR
1993 SC 2178.

The main question now arises is whether judicial activism is right or wrong. Here are some probing into the
views of that segment of the society, which postulates judicial activism as a wrong practice:

(i) The first notion they have is that, judicial activism will have a detrimental effect on our democratic
order. They opine that the people are losing their faith in their political leadership,
bureaucracy and governmental mechanism. No one is spared of a serious suspicion, not even the Prime
Minister of the country18.

(ii) They signal the loopholes in our judicial system. They say that judicial activism is the outcome of the
judiciary’s zeal to be in the limelight. Moreover, there are similar flaws and shortcomings in judicial
administration as in other administrative systems. These remarks by Justice P.B. Sawant are apt in this

10
L.I.C. v. Manubhai Shah, AIR 1993 SC 171; Secretary, Information and Broadcasting v. Cricket Assn. of W. B., AIR
1995 SC 1236
11
Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988 22
People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473
12
A.R.Antulay v. R.S.Nayak, AIR 1992 SC 1701
13
R. Rajagopal v. State of T.N., (1994) 6 SCC 632
14
Kishore Singh v. State of Rajasthan, AIR 1981 SC 625
15
Dixit Ashish Kumar, Judicial Activism and Public Interest Litigation in India, ICSSR 20
AIR 1978 SC 1675
16
Charles Sobhraj v. Superintendent of Tihar Jail, AIR 1978 SC 1514
17
AIR 1991 SC 417
18
S. N. Chary, Mera Bharat Mahan (My India is Great), Wheeler Publishing, New Delhi, 1997, p. 56

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 direction that “Autocracy of the judges - the judiciary - is to be more dreaded than that of the
politicians, for there is no recourse against it. The healer becomes the killer, the saviour the captor”
(iii) The critics point out the abuse of PIL. Even the Chief Justice of the Supreme Court has cautioned the
legal community against misuse of P.I.L. and emphasized the need for its proper regulation 19.The cases
of Janta Dal v. H.S. Chowdhari, (1992) 4 SCC 653; Krishna Swami v. Union of India, (1992) 4 SCC
605 and Simranjit Singh Mann v. Union of India, (1992) 4 SCC 653 are fine examples where the
petitioners tried to abuse PIL to achieve political ends.

However, these three arguments can be countered as follows:

(i) Firstly, it has become crystal clear that not only has judicial activism activated the judiciary but has
activated the executive and the legislature too. Several new legislations have appeared on the scene after
judiciary’s efforts and directions (The Consumer Protection Act, 1986, The Environmental (Protection)
Act, 1986, Protection of Human Rights Act, 1993 etc.). Judicial activism has unearthed several scams and
scandals (e.g. Hawala Scam, Fodder Scam, St. Kits Scam, Illegal Allotment of Government Houses and
Petrol Pumps, Fertilizer Scam etc.). 20

(ii) The judiciary, like the legislature, is also manned by,human beings who come from the same social
milieu and are subject to same human frailties and social constraints. No institution has monopoly rights to
weaknesses or to making mistakes.

(iii) The apex Court itself has given cautious guidelines on the abuse of P.I.L. in several cases People’s
Union for Democratic Rights v. Union of India33, Bandhua Mukti Morcha v. Union of India21.

19
A.T. Thiruvengadam, “A Case of Institutional Conflict”, The Hindu, April 27, 1999, p. 21

20
Dixit Ashish Kumar, Judicial Activism and Public Interest Litigation in India, ICSSR 33 AIR
1983 SC 339
21
AIR 1984 SC 803

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 CONCLUSION

“The dividing line between judicial activism and judicial overreach is a thin one.” – Prime Minister
Manmohan Singh.

The country has seen instances of beneficial judicial activism to a great extent. High profile politician
Shibu Soren has been convicted for a murder committed in 1994. Tinsel world celebrity Sanjay Dutt of
Gandhigiri fame has been convicted of offences under the Arms Act committed in 1993. Navjyot Sidhu, an
ex-cricketer with a gift of the gab has been convicted for road rage killing committed 18 years ago. Finally
and most reassuringly for the public, the Delhi High Court has reversed a perverse decision of a lower
court in the notorious case of murder of Jessica Lall some years ago. Manu Sharma’s acquittal was a patent
miscarriage of justice and there was a shrill public outcry. On appeal, The High Court has convicted
Sharma, despite Ram Jethmalani’s last minute pyrotechniques on behalf of Sharma. No doubt the mills of
God (or justice) grind slowly “but they do so exceedingly small”. Whatever be the criticisms against
judicial activism, it cannot be disputed that judicial activism has done a lot to ameliorate the conditions of
the masses in the country. It has set right a number of wrongs committed by the states as well as by
individuals22. The common people are very often denied the protection of law due to delayed functioning of
the courts, also called judicial inertia or judicial tardiness23 .Judicial activism has started the process to
remove these occasional aberrations too. This can be furthered only by honest and forthright judicial
activism and not by running down the judiciary in the eyes of the public. The greatest asset and the
strongest weapon in the armoury of the judiciary is the confidence it commands and the faith it inspires in
the minds of the people in its capacity to do evenhanded justice and keep the scales in balance in any
dispute. The Chief Justice of India Adarsh Sen Anand (as he then was) has realized that the real source of
strength of the judiciary lies in the public confidence in it and the judges have to ensure that this confidence
is not lost. As Justice J.S. Verma (as he thenwas) has referred: “Judicial activism is a sharp-edged tool
which has to be used as a scalpel by a skilful surgeon to cure the malady. Not as a Rampuri knife which can
kill.”24

22
J.N. Pandey, Constitutional Law of India, Central law Agency, Allahabad, 1998, p. 319
23
Nikhil Chakrawartty, “Judicial Activism, Right or Wrong”, Mainstream, March 29, 1997, pp. 3-4, at p. 4.
24
Justice J.S. Verma, former Supreme Court Judge regarding the origin of judicial activism in India in India Today dated
15.3.96 at p. 122.

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 CASE REFERENCE

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)12

2. Brown v. Board of Education, 347 U.S. 483 (1954)15
3. Plessy v. Ferguson, 163 U.S. 537 (1896)16
4. L.I.C. v. Manubhai Shah, AIR 1993 SC 171;22
5. Secretary, Information and Broadcasting v. Cricket Assn. of W. B., AIR 1995 SC 123622
6. Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC 198823

7. People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 147324
8. A.R.Antulay v. R.S.Nayak, AIR 1992 SC 170125
9. R. Rajagopal v. State of T.N., (1994) 6 SCC 63226
10. Kishore Singh v. State of Rajasthan, AIR 1981 SC 62527
11. Sunil Batra v. Delhi Administration, AIR 1978 SC 167529
12. Charles Sobhraj v. Superintendent of Tihar Jail, AIR 1978 SC 151430
13. M.C. Mehta v. State of Tamil Nadu, AIR 1991 SC 41731

14. People’s Union for Democratic Rights v. Union of India35

15. Bandhua Mukti Morcha v. Union of India36

REFERENCES

1. Dixit Ashish Kumar, Judicial Activism and Public Interest Litigation in India, ICSSR
2. S. N. Chary, Mera Bharat Mahan (My India is Great), Wheeler Publishing, New Delhi, 1997, p. 56

3. A.T. Thiruvengadam, “A Case of Institutional Conflict”, The Hindu, April 27, 1999, p. 21
4. J.N. Pandey, Constitutional Law of India, Central law Agency, Allahabad, 1998, p. 319

5. Nikhil Chakrawartty, “Judicial Activism, Right or Wrong”, Mainstream, March 29, 1997, pp. 3-4, at p.

6. Justice J.S. Verma, former Supreme Court Judge regarding the origin of judicial activism in India in
India Today dated 15.3.96 at p. 122.
7. Robert P. George, Judicial and threat to Constitution, President, Family Law Resarch

8. Shailja Chander, Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles, Deep and
Deep Publications, New Delhi, 1998

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9. S. C. Kashyap, “Judiciary-Legislature Interface”, Subhash C. Kashyap (ed.), Judicial Activism and
Lokpal, Uppal Publishing House, New Delhi, 1997, pp. 60-76, at p.71.
10. Gautam Jayasurya, SSRN, Indian Judiciary from Activism to Restraint
11. Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0-8476-8531-4
12. S Shantakumar, Introduction to Environmental Law, (Wadhwa & Company Nagpur), Page No.- 93

ONLINE SOURCES
1. Ghosh, Pritam Kumar, JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA,
Galgotias Journal of Legal Studies, ISSN. 2321-1997
http://law.galgotiasuniversity.edu.in/pdf/issue6.pdf

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