JUDICIAL ACTIVISM IN INDIA

There are three parts of government in India i.e.; legislative, executive and the judiciary. Each
one have been assigned there respective jobs by the system of India and they work accordingly.
The work of legislative is to make the laws the work of executive is to execute the laws made
and the work of judiciary is to punish the law breakers. The makers of Indian constitution
enacted several provisions designed to secure the independence of judiciary by insulating it from
executive or legislative control. Due to an independent judiciary, the area of judicial intervention
steadily expanded through the concept the of JUDICIAL ACTIVISM.

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 suggestions that adherents of this philosophy
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tend to find constitutional violations and are willing to ignore precedent.”

Parliament is the supreme law making body; Judiciary is the final authority for interpreting the
constitution and the law passed by the legislative institution. Need to maintain balance between
judiciary, legislative. In any system, of government, the judiciary plays a major role in the
quality of governance of the country. Courts are important for the working and consolidation of
democratic regimes.

With the idea of constitutionalism based on the principle of limited and responsible government,
an independent judiciary has become the sine qua non of democracy. If the judiciary is given real
independence and full freedom to scan executive’s decisions and policies in the light of the
constitution, it makes for good governance and prevents exploitation of the poor and weaker
sections of the society.

The purpose of giving justice cannot be just solved by simply interpreting the laws in the modern
times particularly in a divergent society like India. Law should be interpreted in such a way so

1
Black’s law dictionary
that it should satisfy the need of the society at large. The judiciary should see that what is in the
best interest of the society.

Constitutional powers of the Supreme Courts and High Courts in India

Judicial activism happens when the courts have power to review the state action. Article 13 read
with article 32 and 226 of the Indian constitution gives the power of judicial review to the higher
judiciary to declare, any legislative, executive or administrative action, void if it is in
contravention with the constitution of India. The power of judicial review is a basic structure of
the Indian constitution​.

Article 32 of the Indian constitution gives right to every individual to move directly to the
supreme court of India for the enforcement of his or her fundamental right. Article 32 confers
power on the Supreme Court to issue any order or writ for the enforcement of any of the
fundamental rights. The Supreme Court in ​Fertilizer Corporation Kamgar Union V. Union of
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India held that the power of the Supreme Court under Article 32 is an integral part basic
structure of the basic structure of the Indian constitution “

“Because it is meaningless confer fundamental right without providing an effective remedy for
their enforcement, if and when they are violated”. It cannot be suspended during the emergency.
An appropriate writ/order under article 32 for the enforcement of Article 17, 23 and 24 can be
passed against a private individual also.

The first signs of judicial activism appeared in the realm of constitutional when the supreme
court ruled that the parliament could amend any part of the constitution i.e., the basic structure
of the constitution the court then moved forward in making this provision paramount in the
Maneka Gandhi case and has since ruled in many cases in a manner that can only be described as
judicial activism.

2
A.I.R. 1981 S.C. 344
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The case of ​A.K. Gopalan V. State of Madras is not an example of judicial activism but the
evolution of judicial activism was from this case the case must be studied as an example of the
traditional functioning of the law. In this case the majority judgment ruled that the words
‘procedure established by law’ would mean the procedure as per any legislature enacted by the
parliament irrespective of whether the law complied with the cannons of natural justice or not?.
This judgment followed the traditional role of judges as interpreters of the law in the strictest of
senses; this however means that the court fails in the functions of ensuring justice to all. One
must also note that this does not mean that there was no checks on the executives and they were
given a free reign to do anything that they wanted. The court still ensured that the law as
established by the legislative was followed. The best example of this being that of ​Ran Narayan
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Singh V. Delhi in which the court held that the detention of a person after an order of
adjournment has been passed is violation of section 344 of the code of criminal procedure.

Thus, Gopalan is an example of how courts protect the rights of general people even without
exceeding the scope of its mandate. However, one had to admit that the judgment in the Gopalan
case was a violation of the principle of natural justice and one violated the rights and dignity of a
human being of the executive has the power to arbitrarily deprive a person of his liberty.

The first act of judicial activism to get widespread recognition was the case of ​Kesavananda
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Bharati V. State of Kerala . Although not often recognizes as an act ​of judicial activism the
majority judges in this case evolved the concept of a ‘basic structure’ to the constitution that was
not explicitly mention or even implied in any part of the constitution. The rationale of the court
behind this may be two fold. The first is that the court interpreted it on the basis of the legislative
intent behind the constitution and the second to protect the rule of the court and the second
would be an extension of the courts authority. Thus this is the first example of the court
extending its power of interpretation ton such an extent that it crosses the line between traditional
functions and judicial activism.

3
A.I.R. 1950 S.C. 27
4
A.I.R. 1953 S.C. 272
5
A.I.R. 1973 S.C. 1461
Most of the essential feature of the constitution are basic human rights, sometimes described as
“natural rights”, which correspond to the rights enumerated in the “universal declaration of
human rights”, to which India is a signatory. The ultimate sovereignty resides in the people and
the power to alter or destroy the essentials features of a constitution is an attribute of that
sovereignty. The power given by the constitution cannot be conducted as authorizing the
destruction of other powers conferred by the same instrument. If there are no inherent limitations
on the amending power of the parliament, that power could be used to destroy the judicial power,
the executive power and even the ordinary legislative power of the parliament and the state
legislature. The preamble to our constitution which is most meaningful and evocative is beyond
the reach of the amending power and therefore no amendments can be introduced into the
constitutions which are inconsistent with the preamble.
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In ​Vishaka V. State of Rajasthan , the supreme court held that in the “absence of enacted law to
provide for the effective enforcement of the basic human right of gender equality and guarantee
against sexual harassment and abuse, more particularly against sexual harassment at work places,
we lay down the guidelines and norms specified hereinafter or due observance at all workplaces
or other institutions, until a legislations is enacted for the purpose. This is done in exercise of the
power available under Article 32 of the constitution for enforcement of the fundamental rights
and it is further emphasized that this would be treated as the law declared by this court under
Article 141 of the constitution. Considering the importance of Article 32 read with Article 142, it
becomes necessary for the judiciary that it should perform its constitutional obligation where
there is no legislation on the certain field and implement the rule of law. Again, the Supreme
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Court in ​Kalyan Chandra sarkar V. Rajesh Rajan​, acknowledge the importance of Article 142
of the Indian constitution and said that the court has power under Article 142 to issue directions
and guidelines for implementing and protecting the ​fundamental rights in the absence of any
enactment. The court reiterated that any such direction, filling up the vacuum of legislation, is
the law of the land. However, the parliament has power to replace such directions e.g. the sexual

6
A.I.R. 1997 S.C. 3011

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A.I.R. 2005 S.C. 972
harassment of women at workplace (prevention, ​prohibition, and redressal) Act, 2013 ​replaced
the Vishaka guidelines for prevention of sexual harassment issued by the Hon’ble Supreme
Court of India in the year of 1997.

Access to justice is a fundamental aspect of rule of law. If the justice is not accessible to all,
establishment of the rule of law is not possible. The individuals fail to reach justice system due to
various reasons including lack of basic necessities, illiteracy, poverty, discrimination, privacy,
poor infrastructure of the justice system, etc.

The Supreme Court of India has recognized in many landmark judgments that access to justice is
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a fundamental right. Indian judiciary has played an active role in ensuring access to justice.
Since independence, the Indian courts have been adopting innovative ways for redressing the
grievances of the disadvantaged persons.PIL plays a very important role in the public interest it
is basically the need and urge of public to our judiciary to look into the lives of the public of the
country.

One of the landmark cases relating to the public interest litigation was ​Hussainara Khatoon (I) V.
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State of Bihar . A series of article exposing the plight of under trial prisoners in the state of Bihar
was published in a prominent newspaper. Many of the under trials prisoners had already served
the maximum sentence without even being charged for the offence. A writ petition drawing the
courts attention to the issue was filed by an advocate. While accepting it as public interest
involved, the Supreme Court held that right to speedy trial is a fundamental right under Article
21 of the Indian Constitution. The court directed the state to provide free legal facilities to the
under trials so that they could get bail or final release.

The need and significance of judicial restraint in a welfare state.

Several attempts have been made by the government to reverse the basic structure doctrine. The
constitution (forty second amendment) Act 1976 was one of these attempts, which inserted

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Imtiyaz Ali Ahmad v. state of Uttar Pradesh, A.I.R. S.C. 2012 642.
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(1980) 1 S.C.C. 81.
clause (4) and (5) to Article 368 of the constitution. In Minerva Mills v. Union of India, the court
unanimously held that clause (4) and (5), inserted by 42​nd amendment, voilative of the voilative
of the basic structure of the Constitution. In this case, the Supreme Court has exercised
maximum restraint in using the basic structure doctrine against constitutional amendments. Since
then, no effort was made on behalf of the government to overturn the basic structure doctrine.
The Court has also been most reticent in using the basic structure doctrine to strike down a
constitutional amendment. Although the Court asserted that it ​would review constitutional
amendments that added new Acts to the Ninth Schedule, it has not held any of the additions
invalid. J​ udicial restraint is a theory of ​judicial interpretation​ that encourages ​judges​ to limit the
exercise of their own power. It asserts that judges should hesitate to strike down laws unless they
are obviously unconstitutional, ​though what counts as obviously unconstitutional is itself a matter
of some debate. ​Judicial restraint is sometimes regarded as the opposite of ​judicial activism​. In
deciding questions of ​constitutional law​, judicially restrained jurists go to great lengths to defer
to the legislature. Judicially restrained judges respect ​stare decisis,​ the principle of upholding
established precedent handed down by past judges.

In ​Almitra H. Patel v. Union of India, where the issue was whether directions should be issued to
the municipal corporation regarding how to make Delhi clean, the court held that it was not for
the supreme court to direct them to how to carry out their most basic functions and resolve their
difficulties, and that the court could only direct the authorities to carry out their duties in
accordance with what has been assigned to them by law.

CONCLUSION

When judges start thinking they can solve all the problems in society and start performing
legislative and executive functions (because the legislature and executive have in their duties), all
the kinds of problem are bound to arise. Judges can no doubt intervene in some extreme cases,
but otherwise they neither have the expertise nor resources to solve major problems in society.
Also, such encroachment by the judiciary into the domain of the legislature or executive will
almost invariably have a strong reaction from politicians and others.