OVERVIEW:

INTRODUCTION, EVOUTION AND

GROWTH OF JUDICIAL ACTIVISM.
LANDMARKS, METHODS, SITUATIONS
AND CONSTITUTIONAL PROVISIONS.
PUBLIC INTEREST LITIGATION.
CONCLUSION.
PANEL ASSIGNMENT
:Bharat Bhushan Shukla
JUDICIAL ACTIVISM: AN
INTERVENTION OF JUDICIARY

SUBMITTED BY: BHARAT BHUSHAN SHUKLA

BA.LLB , SEM 10
11110100194

PANEL MEMBERS: DR. SUNITA ARYA

PROF. GOPAL KAG
PROF RITUPRIYA GURTOO
JUDICIAL ACTIVISM : THE INTERVENTION OF JUDICIARY

INTRODUCTION

Judicial activism is an approach to the exercise of judicial review, or a description of a

particular judicial decision, in which a judge is generally considered more willing to
decide constitutional issues and to invalidate legislative or executive actions. Judicial
activism has always been a source of heated debate, particularly in the light of recent
developments in this regard. In the last few years, with several controversial decisions, the
Supreme Court judges, as well as the numerous High Courts, have again triggered a debate
that has always been very strong. However, what the word “judicial activism” actually
connotes is still a mystery. Under the Indian Constitution, the State is under the prime
obligation to ensure justice, liberty, equality, and fraternity in the country. In this sense, the
Indian judiciary has been seen as the guardian and defender of the Indian Constitution.
Considering its constitutional duty, the Indian judiciary has played an active role, whenever
necessary, in protecting the individual’s fundamental rights against the State’s unjust,
excessive, and unequal actions/inactions. 

JUDICIAL ACTIVISM IN INDIA

The concept of judicial activism found its roots in the English concepts of ‘equity’ and
‘natural rights’. The root of judicial activism in India is very difficult to find. For a very long
time, the Indian judiciary had adopted an orthodox approach to the very concept of judicial
activism. It would be wrong, however, to say that there have been no incidents of judicial
activism in India. Some scattered and stray incidents of judicial activism have taken place
from time to time. But, they did not come to the fore as the very concept was unknown to
India. However, the history of judicial activism can be traced back to 1893, when Justice
Mehmood of the Allahabad High Court delivered a dissenting judgment which sowed the
seed of judicial activism in India.

Since the judiciary has come to be recognized as an autonomous and separate government
body under the Government of India Act, 1935, and subsequently under the Constitution of
India, it would be wise to look at the time following 1935 for the tracing of origin. A new
rule is put in place not only to fix and resolve the present problem, but also to extend
generally to all potential problems which are not presently before the Court, but are likely to
occur in the future. According to Black’s Law Dictionary judicial activism is described as: “a
theory of judicial decision-making by which judges allow their personal opinions on public
policy, among other factors, to direct their decisions, usually with the implication that
adherents to this theory appear to find constitutional violations and are willing to disregard
precedents.” 

Judicial Activism in India Judicial activism is gaining prominence in the present days. In the
form of Public Interest Litigation (PIL) also, citizens are getting access to justice. Judiciary
has become the centre of controversy, in the recent past, on account of the sudden (Me in the
level of judicial intervention. The area of judicial intervention has been steadily expanding
through the device of public interest litigation. The judiciary has shed its pro-status-quo
approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable
sections of society, by progressive interpretation and positive action. The Supreme Court has
developed new methods of dispensing justice to the masses through the public interest
litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest
litigation attained a new dimension comments that "the supreme court has developed several
new commitments. It has carried forward participative justice. It has laid just standards of
procedure. It has made justice more accessible to citizens". The term 'judicial activism' is
intended to refer to, and cover, the action of the court in excess of, and beyond the power of
judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction.
The Constitution does not confer any authority or jurisdiction for 'activism' as such on the
Court. Judicial activism refers to the interference of the judiciary in the legislative and
executive fields. It mainly occurs due to the non-activity of the other organs of the
government. Judicial activism has arisen mainly due to the failure of the executive and
legislatures to act. Secondly, it has arisen also due to the fact that there is a doubt that the
legislature and executive have failed to deliver the goods. Thirdly, it occurs because the entire
system has been plagued by ineffectiveness and inactiveness. The violation of basic human
rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the
provisions of the Constitution, judicial activism has gained significance.
 EVOLUTION AND GROWTH OF JUDICIAL ACTIVISM

Law comes primarily from two sources- legislative enactments and precedents or Judicial
decisions.

Many provisions of the Constitution enable the judiciary to play an active role by asserting
itself. Article 13 empowers the Court to declare any law unconstitutional if it violates any
fundamental right of citizens guaranteed by the Constitution. An aggrieved person can
approach the Supreme Court under Article 32 or any High Court under Article 226. Article
19 enables the Supreme Court to determine whether restrictions imposed on the fundamental
right are reasonable or not. Article 131 upheld the federal principle.

The Supreme Court is the highest Court of appeal in all criminal, civil, and constitutional
matters, it enjoys advisory jurisdiction and has rulemaking power. It has the authority to
make a final declaration as to the validity of the law and all its judgments are binding on all
other Courts in India except itself.

From the above stated constitutional provisions, it is clear that the constitutional framework
has given enough scope for Judicial activism as the judiciary, and especially the Supreme
Court enjoys a unique position. The emergence of Judicial was because of trends like the
expansion of the power of Judicial review over the administration, extending the scope of its
interpretation to achieve economic, social, and educational objectives and excessive
delegation without limitation, etc.

BASIC LANDMARKS OF JUDICIAL ACTIVISM

The first major case of judicial intervention by social action litigation was the case of the
Bihar court which was Hussainara Khatoon Vs State of Bihar. In 1980, in the form of a
written petition under Article 21, some law professors exposed the barbarous conditions of
detention at the Agra Protective Home, followed by a lawsuit against Delhi Women’s Home
filed by a Delhi Law School student and a social worker. In 1967 In Golak Nath v. the State
of Punjab, the Supreme Court held that the constitutional rights of Part III of the Indian
Constitution could not be modified, even though there was no such limitation in Article 368,
which only included a resolution of a two-thirds majority in both Houses of Parliament. 
Subsequently, In the well-known case of Kesavananda Bharati, two years before the
declaration of emergency, the Apex Court ruled that the government had no right to interfere
with the constitution and to change its fundamental characteristics. In Kesavananda Bharati v.
The State of Kerala, 13 Judge Bench of the Supreme Court overruled the Golakh Nath
decision but held that the fundamental framework of the Constitution could not be changed.
As to what is meant by ‘simple structure,’ it is still not clear, although some later verdicts
have sought to clarify it. The point to be remembered, however, is that there is no reference
in Article 368 that the basic structure could not be modified. Accordingly, the decision has
amended Article 368. A significant number of decisions of the Supreme Court of India, in
which it has played an activist position, refer to Article 21 of the Indian Constitution, and we
are therefore dealing with it separately.

METHODS OF JUDICIAL ACTIVISM

There are various methods of judicial activism that are followed in India. They are:

1. Judicial review (power of the judiciary to interpret the constitution and to declare any
such law Or order of the legislature and executive void, if it finds them in conflict
with the Constitution)

2. PIL (The person filing the petition must not have any personal interest in the
litigation, this petition is accepted by the court only if there is an interest of large
public involved; the aggrieved party does not file the petition). 

3. Constitutional interpretation

4. Access of international statute for ensuring constitutional rights

5. Supervisory power of the higher courts on the lower courts

SITUATIONS LEADING TO JUDICIAL ACTIVISM

There are some other situations that lead to judicial activism. These are:

(i) When the legislature fails to discharge its responsibilities.

(ii) In case of a hung parliament where the government is very weak and instable.
(iii) When the governments fail to protect the basic rights of the citizens or provide an
honest, efficient and just system of law and administration,
(iv) When the party in power misuses the courts of law for ulterior motives as was done
during the Emergency period, and
(v) Finally, the court may on its own try to expand its jurisdiction and confer on
themselves more functions and powers. Areas of Judicial Activism During the past
decade, many instances of judicial activism have gained prominence. The areas in
which judiciary has become active are health, child labour, political corruption,
environment, education, etc. Through various cases relating to Bandhua Mukti
Morcha, Bihar Under trials, Punjab Police, Bombay Pavement Dwellers, Bihar Care
Home cases, the judiciary has shown its firm commitment to participatory justice,
just standards of procedures, immediate access to justice, and preventing arbitrary
state action.

PUBLIC INTEREST LITIGATION

Public Interest Litigation: An Innovative Step towards Judicial Activism Public interest
litigation means a suit filed in a court of law for the protection of public interest such as
pollution, terrorism, road safety etc. Judicial activism in India acquired importance due to
public interest litigation. It is not defined in any statute or act. It has been interpreted by
judges to consider the intent of public at large. The court has to be satisfied that the person
who has resorted to PIL has sufficient interest in the matter. In India, PIL initially was
resorted to towards improving the lot of the disadvantaged sections of the society who due to
poverty and ignorance were not in a position to seek justice from the courts. After the
Constitution (Twenty Fifth Amendment Act, 1971), primacy was given to Directive
Principles of State Policy by making them enforceable. The courts to improve administration
by taking up PIL cases, for ensuring compliance constitutional provisions has also increased.
PIL is filed for a variety of cases such as maintenance of ecological balance, making
municipal authorities comply with statutory obligations of provision of civic amenities,
violation of fundamental rights etc. It has provided an opportunity to citizens, social groups,
consumer rights activists etc., easier access to law and introduced a public interest
perspective. Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in
promoting this avenue of approaching the apex court of the country, seeking legal remedies
in areas where public interests are at stake. PIL has been considered a boon, as it is an
inexpensive legal remedy due to nominal costs involved in filing the litigation. But there are
some problems also in the PIL cases. There has been an increase in the number of frivolous
cases being filed due to low court fees. Genuine cases got receded to the background and
privately motivated interests started gaining predominance in PIL cases. In view of this, the
Supreme Court has framed certain guidelines governing the PIL. Presently the court
entertains only writ petitions filled by an aggrieved person or public spirited individual or a
social action group for enforcement of the constitutional or the legal rights of a person in
custody or of a class of persons who due to reasons of poverty, disability, socially or
economically disadvantaged position are finding it difficult to approach the court for redress.
PIL is an extraordinary remedy available at a cheaper cost. As Justice Bhagwati observed in
the case of Asiad workers case, 'now for the first time the portals of the court are being
thrown open to the poor and the downtrodden. The courts must shed their character as
upholders of the established order and the status quo. The time has come now when the
courts must become the courts for the poor and the struggling masses of this country.

CONCLUSION

Recently, the nation has seen instances of beneficial judicial activism to a large degree.
Shibu Soren, a high-profile politician, has been convicted of a 1994 murder. Tinsel’s world-
famous Sanjay Dutt of Gandhigiri fame was convicted under the Arms Act of 1993. Navjyot
Sidhu, an ex-cracker with a gift from the gab, was convicted of road rage killing committed
18 years ago. Whatever criticism of judicial activism, it can not be disputed that judicial
activism has done a great deal to improve the conditions of the masses in the country.

It corrects a variety of wrongs committed by both states and individuals. Common people are
the most deprived of the protection of the law because of the sluggish functioning of the
judiciary, also referred to as judicial inertia or legal tardiness. Judicial activism has also
begun the process of eliminating these occasional aberrations. This can only be furthered by
sincere and vocal judicial advocacy, and not by dragging the judiciary down in the eyes of
the public. The greatest asset and strongest weapon in the armour of the judiciary is the trust
that it commands and the faith that it inspires in people’s minds in its capacity to do even-
handed justice and keep the scales in balance in any dispute.