JUDICIAL ACTIVISM

Slide 1: What is Judicial Activism

· Coined by Arthur Schlesinger Jr. in a January 1947 Fortune magazine article.

· 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, usually with the suggestion that
adherents of this philosophy tend to find constitutional violations and are willing
to ignore precedent.”
· In Layman’s term, Judicial activism basically means when judges take the role of
an activist and look beyond the traditional confines of law and pass judgment on
matters which are deemed normally to be reserved to the legislature and the
executive.
· If the executive or the legislature pass any law which cramps down on the
fundamental principles laid down in the constitution, the law is subject to Judicial
Review under Article 32/226 .
· Court can take suo moto cognizance or a PIL/SIL can be filed

Slide 2: Evolution of Judicial Activism

· Judicial Activism by way of Judicial Review, started in America in Marbury v.

Madison in 1803, wherein Marshall CJ, declared, “ours is a government law and
not of men”
· In the U.S, the concept of judicial activism has often been used as synonymous
with “judicial absolutism” “judicial supremacy” “judicial anarchy” and “judicial
imperialism”.
· Manusmriti has recorded text which shows a form of judicial activism. “Where
justice wounded by injustice approaches and the judges do not extract the dirt,
there they also are wounded by the dirt of injustice”
· All the Dharmasastras and smritis laid down that dispensation of all forms of
justice was the highest dharma of judges.
Slide 3: Why Judicial Activism is needed?
· Justice H.R. Khanna once said “when the light of law fails, judges are supposed
to have some special vision like the third eye of Shiva…They must solve enigmas
that no other agency of the government has been able to solve”
· Law has to be kept abreast of it’s time. With changing societies, law must keep
pace with life. It has to evolve to meet new challenges.
· In a country like India, where the gap between law and justice is too-wide and
exploitation of the downtrodden is an everyday happening, the judiciary has to be
the watchdog and protector of citizens.
· Judiciary has the authority to intervene in areas normally reserved for the
legislature and government when it fails to perform its legislative and
administrative functions.
· The judiciary is the watchdog of the constitution and it must ameliorate the
worsening conditions of the citizens.
· To fill the legal vacuum, the judiciary can issue certain guidelines.

Slide 4: Judicial Activism: Through the Case Laws

· Post-emergency period (1977-98) is regarded as the “Judicial Activism period”.
· Advent of judges like Krishna Iyer and P.N. Bhagwati J
· Case of Indira Gandhi V. Raj Narayan
· Precedent set up case of A.K.Gopalan v State of Madras was no longer valid

Slide 5: Judicial Activism: Through the Case Laws (Cont)

· Maneka Gandhi v Union of India

· Procedure under Art. 21 must be right, just and fair and not arbitrary; it must pass
the test of reasonableness and the procedure should be in conformity with the
principles of natural justice.
· D.C. Wadwha V. State of Bihar: Ordinance Raj nipped at bud. The power to enact
ordinances must be used only in exceptional circumstances, and it cannot be used
for political purposes.
 · S.P. Gupta Vs. Union of India- Judges Transfer Case

Slide 6: Public Interest Litigation

· Through PIL, the court has the power to entertain petitions even from ordinary
people who otherwise cannot approach it due to financial or other constraints.
· PIL has allowed the matter where there is a matter of oppression of fundamental
right and right to dignity is being trampled. Further, if the principles of social
justice are not followed, PIL can be filed.
· PILS filed in matters concerning under trials, better living conditions for
convicted prisoners, bonded and migrant labourers, agricultural landlessness,
environment and pollution, administrative discretion etc.

Slide 7: PIL v Writ Jurisdiction

· Informality of procedure by entertaining letters written to judges versus strict
compliance to rules
· The rules of locus standi are relaxed in PIL while writs have a strict locus standi
rule.
· Guidelines, monetary relief and remedies developed in PIL, while in a writ the
court is bound by certain notions.

Slide 8: Judicial Overreach

· Separation of powers is a part of the basic structure doctrine. However, with
judicial activism critics have labelled this as an antithesis to Seperation of Power
doctrine
· Article 50 of the Constitution states that the State shall take steps to separate the
judiciary from the executive in the public services of the State.
· Constitution has consciously selected different vehicles to carry out different
items of its agenda and all policy decisions are not in the domain of the courts to
embark upon an inquiry

Slide 9: When does Judicial Overreach Happen?

· Judicial overreach happens when the judiciary starts taking decisions which are
not usually within the areas in which the judiciary can rule on.
 · They are usually orders or directives which ordinarily would come within the
powers of the legislature or executive wing of the government.
· Lord Diplock’s observation:
“Parliament makes the laws, the judiciary interprets them. When Parliament
legislates to remedy what the majority of its members at the time perceive to be a
defect or a lacuna in the existing law (whether it be the written law enacted by
existing statutes or the unwritten common law as it has been expounded by the
judges in decided cases), the role of the judiciary is confined to ascertaining
from the words that Parliament has approved as expressing its intention what
that intention was, and to giving effect to it… It endangers continued public
confidence in the political impartiality of the judiciary, which is essential to the
continuance of the rule of law if judges, under the guise of interpretation, provide
their own preferred amendments to statutes which experience of their operation
has shown to have had consequences that members of the court before whom the
matter comes consider to be injurious to the public interest…”

Slide 10: Cases where judicial overreach has taken place

· State of Tamil Nadu & Ors v. K. Balu & Anr.- The Supreme Court issued an
order forbidding the sale of alcoholic beverages within 500 metres of the outside
edge of national or state highways, or within 500 metres of a service lane along
the highway.
· Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Ltd. & Anr- The court
stated that the executive has significantly more latitude in the fields of economics
and trade than in other areas. The Court cannot pass judgement on the wisdom of
the legislature's or executive's policies.
· Union of India v. M. Selvakumar- It is not for the courts to decide whether or not
a specific public policy is wise and acceptable, or whether a better policy could
be devised. The Court can only intervene if the policy being formulated is
completely capricious and uninformed by reasons, or completely arbitrary, in
violation of Article 14.

Slide 11: Conclusion

· Courts have taken a proactive approach when dealing with social issues.
· Though, they may cross the traditional boundary, however, Indian Constitution
allows such transgression as the courts are the sentinel qui vive and the protector
and enforcer of rights of ordinary citizen