ASSIGNMENT

JUDICIAL ACTIVISM
SUBMITTED BY-
NAME: AAYUSHMAAN AGNIHOTRI
ROLL NO: 2101126

SUBMITTED TO- DR SHUBHANGINEE MAM

ASSISSTANT PROFESSOR IN POLITICAL SCIENCE

DR. B. R. AMBEDKAR NATIONAL LAW UNIVERSITY, RAI,

SONEPAT

1|Page
 INDEX
Page no.

INTRODUCTION 5

Legal constitutional impact 6

CURRENT STATUS: 7

OBJECTIVES 9

RESEARCH METHODOLOGY 10

DATA ANALYSIS 10

CONCLUSION 11

2|Page
 Acknowledgement

I express thanks to everybody who helped me by their direct or indirect contribution due to
which I have successfully completed my assignment on time. I take this opportunity to express
my gratitude towards my teacher Dr Shubhanginee mam for his encouragement and guidance
to prepare an assignment on ‘Judicial activism for the second year of “Bachelor of law BALLB
” . And last but not the least I would like to express my humble thanks to my friends and family
members for their support and boosting which they gave me.

3|Page
 INTRODUCTION
The term Judicial Activism was first coined by Arthur Schlesinger in his article “The
Supreme Court 1947”. Judicial Activism has always been in discussion ever after the
constitution came into force. However, what the word “Judicial Activism” connotes is still
a mystery. The concept of judicial activism has its origin in USA. It is the exercise of the
power of judicial review to set aside the government acts. Judicial activism is seen as a
success in liberalizing access to justice and giving relief to disadvantaged groups. Acc. to
Black’s law dictionary, Judicial activism as “Judicial philosophy which motivates judges
to depart from the traditional precedents in favour of progressive and new social policies.
The concept of Public Interest Litigation (PIL) and Judicial Activism are inter-related and
inter linked and are most often discussed together. In fact, to be clearer, PIL is considered
as a subset of Judicial activism.
It can also be referred as “a philosophy of judicial decision making whereby judges allow
their personal views about public policy to guide their decisions”.2 Specifically article 13,
32, 226 of the constitution provides the power of judicial review to higher judiciary to
declare any legislative and executive action void, if in contravention with the constitution.
This same power has allowed Supreme Court of India to declare some parts of the
constitution as the basic structure which cannot be amended by the parliament through
various judgments hence, taking them out of the sphere of the law making body. Article 32
empowers every citizen to approach the supreme court of India in case of violation of his
or her fundament rights even during the time of emergency as declared in the case of
Fertilizers corporation Kamgar union v. Union of India. As we can see the power of judicial
review/activism is of great importance in ensuring proper functioning of the state and acts
as a tool for the protection of the constitution. Although, when used unnecessarily this very
tool could interfere with the just actions of the state and would act as a hurdle in the way
of development. Self-restraint is to be exercised by the courts as judiciary is not bound
towards the other two organs of the government, a decision by a bench can only be
overturned by a larger bench therefore, it is a power to be exercised cautiously and
responsibly. The main thing lies in clearly defining the separation of powers among the 3
branches and sphere in which they should function. Independence of the organs is also
important to help them dispose off their respective works without any influence from the
other. It has shaped the Indian jurisprudence in a great way serving the needs of a dynamic
society and keeping up with the changing technological, economical and social conditions

4|Page
 within the country. It enables the constitution’s fundamental spirit to be persevered
irrespective of the political atmosphere in the nation. It ensures stability in the state
alongside providing the citizens a method through which their rights can be enforced.

Legal constitutional impact

From inventing the ‘basic structure’ doctrine to bringing constitutional amendments under the
scanner of judicial review to widening the scope of the right to life and liberty by reading into
it the non-justiciable directive principles of state policy such as the duty to promote education
and the duty to preserve the environment, Indian judiciary in 1970s and 1980s have played a
highly proactive role in delivering justice to common masses, ensuring that India develops into
a thriving democracy . In its activist move, the Supreme Court has imparted new vigour to the
process of constitutional interpretation. For example, the Supreme Court in plethora of cases
has identified Article 32 as the constitutional provision that provides for the enforcement of
fundamental rights in areas with legislative vacuum. Not only has it held that fundamental
rights are limitations upon the State power, but the right to constitutional remedies is itself a
fundamental right enshrined in Article 32 of the Constitution, and in the case of an infringement
of a fundamental right by the State, an aggrieved party can approach the Supreme Court for a
remedy. In Vishaka & Ors. v. State of Rajasthan, the Supreme Court held: In 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 for due observance at
all workplaces or other institutions, until a legislation 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. Similarly, Supreme Court has laid down in
Vineet Narain v. Union of India, by noting that the issuance of guidelines and directions, in the
exercise of the powers under Articles 32 and 142, has become an integral part of our
constitutional jurisprudence. It also pointed out that such an exercise of powers was absolutely
necessary to fill the void in areas with legislative vacuum. In addition, the Court noted: As
pointed out in Vishaka, it is the duty of the executive to fill the vacuum by executive orders
because its field is co-terminus with that the legislature, and where there is inaction even by
the executive for whatever reason, the judiciary must step in, in exercise of its constitutional
obligations under the aforesaid provisions to provide absolution till such time as the legislature
acts to perform its role by enacting proper legislation to cover the field. On this basis, we now

5|Page
proceed to give the directions enumerated hereafter for rigid compliance till such time as the
legislature steps in to substitute them by proper legislation. These directions made under Article
read with Article 142 to implement the rule of law wherein the concept of equality enshrined
in Article 14 is embedded, have the force of law under Article 141 and by virtue of Article 144
it is the duty of all authorities, civil and judicial, in the territory of India to act in aid of this
Court.25 Supreme Court held the same view in plethora of other cases like Supreme Court Bar
Associations case, L. K. Pandey case, Kalyan Chandra Sarkar case, just to name the few.
However, Supreme Court’s power of filling the legislative vacuum has received criticisms from
all spheres. It is contended that in filling gaps Supreme Court has crossed the constitutional
restraints. By doing so it has entered into the shoes of legislature and has thus destroyed the
basic structure of constitution

CURRENT STATUS:
Currently, the status of judicial activism in the nation is very valued and widely used when
necessary although judges themselves acknowledge that it should not result in judicial
overreach with could have dire consequences for the state and the citizens. Judges should also
not impose their personal views while deciding the cases as it could lead into ambiguity and
improper administration of justice. Almost always a decision of a larger bench is upheld rather
than a smaller bench and that is because of various reasons: firstly, it ensure a more democratic
process and secondly, the involvement of more number of minds leads to better decisions and
removes bias which may or may not be there. In the present day, it is method with the power
to both protect and destroy the constitution by using the powers granted by the constitution
itself. This lack of accountability requires the judiciary to watch its step and exercise
selfrestraint. Not long ago, a judicial statesman (the late Chief Justice Ismail Mohamed of South
Africa) said: “The independence of judiciary and the legitimacy of its claim to credibility and
esteem must in the last instance rest on the integrity and the judicial temper of the judges, the
intellectual and emotional equipment they bring to bear upon the process of adjudication, the
personal qualities of character they project, and the parameters they seek to identify on the
exercise of judicial power. Judicial power is potentially no more immune from vulnerability to
abuse than legislative or executive power but the difference is this: the abuse of legislative or
executive power can be policed by an independent Judiciary but there is no effective
constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all

6|Page
judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial
POWER is matched by the real depth of judicial RESPONSIBILITY. Judicial responsibility
becomes all the more onerous upon judges constitutionally protected in a state of
jurisprudential solitude where there is no constitutional referee to review their own wrongs.”
These words by late South African chief justice highlight the weight of responsibility that has
been put up by the judiciary on itself by taking self restraint in its actions and maintaining a
healthy cooperation with the other two branches of the government. The supreme court also
recognizes the misuse of the authority of judicial activism, In the case of P Ramachandran Rao
v State of Karnataka, reported in (2002) 4 SCC 578, has observed that “The Supreme Court
does not consider itself to be an imperium in imperior would function as a despotic branch of
the State.” But a cautious use of judicial review is of great importance when it comes to
protection of the rights of the people when the other branches cross the limit or the authority
within which they ought to work and function. Nor the complete removal of judicial activism
is good nor its excessive use by the courts although courts are becoming liberal in the
interpretation of the constitution and the statue but it is necessary to keep pace with time, since
society is not static but dynamic in nature and law exist for the society, society does not exist
for law so, the laws need to be altered for the smooth governance of the society. The end goal
for courts is to approach towards justice, how they reach there is a question of a huge set of
variables which are to be adjusted in a very fine way.

The judicial activism in India is matured enough to be exercised in a very precise and upto the
point manner without further damaging the spirit of the constitution and more importantly the
will of the people, since judicial review is closely connected with the sociological changes that
take place in the society. The liberal interpretation to the ‘right to life and personal liberty’ is
indicative of the level of experience our judiciary has gained over the years. The judicial review
have derived certain rights from already existing rights as those rights covers a greater set of
rights which were not explicitly mentioned. The Hon’ble Supreme Court of India in Mohini
Jain v. State of Karnataka said that the cumulative effect of Articles 21, 38, Articles 39 (a) and
(b), 41 and 45 bind the State to provide education to all of its citizens.41 The Supreme Court
declared that the right to education flows directly from right to life. The right to life under
Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the
right to education. Finally, the Court announced that the State Government is under an
obligation to make endeavor to provide educational facilities at all levels to its citizens. Later
the intentions of this judgment was incorporated into the constitution itself making right to

7|Page
education a constitution right with strict enforcement, By the Constitution (Eighty-sixth
Amendment) Act of 2002, three new provisions i.e., Article 21A, new Article 45 and 51-A(k)
were inserted into the Indian Constitution. Currently, Right of Children to Free and
Compulsory Education Act, 2009 enforces fundamental right to education in India. Hence, it
is an instrument of social, political and legal change along with providing the citizens a sense
of trust in the constitution that their rights will be protected even in a state of emergency.
Therefore, it is fair to say currently the need of judicial activism is the need of the hour. In
times where corruption is on the rise, political parties are neglecting the minorities and the
under privileged, human rights are been crushed in the name of national security, media
misleading the people, it is inevitable that judiciary has to step up to maintain equilibrium in
the state of affairs between institutions government or private and the individuals or society.
Change is the law of the nature, therefore continuous change is desirable as change brings
refinement and enables us to learn from mistakes.

OBJECTIVES

• To understand the Constitution

• To analyse the power of the judiciary

• To understand the difference of power between the executive, legislative and judiciary

• To understand the role of judicial activism in current scenario

• To understand why judicial activism came into play

RESEARCH METHODOLOGY

The exploratory study is based on the premise "JUDICIAL ACTIVISM" and that "the Indian
urban youth's thinking about the role and need for judicial activism " Surveys with open- ended
and closed-ended questions, both structured and unstructured, are used as the method of data
collection. To reach a big number of respondents in a short amount of time, a survey method
was obtained. A minimal cost budget is another advantage. Males and females as well as
individuals between the ages of 18 and 60, including professionals and students, make up the
sample population for this study. 20 people made up the sample for this study. The survey was
carried out online, and the replies of the participants were gathered. A thorough analysis,
including both quantitative and qualitative analysis, was carried out after the data collection
8|Page
Legal consent from respondents was also obtained before using any of their research-related
opinions. I combined primary data with secondary data and created a questionnaire with TEN
distinct questions and gathered responses from various people to use as my primary data. After
analysis, conclusions were taken from the responses that had been gathered. In order to gather
secondary data, I consulted a variety of books, journals, articles, Supreme Court decisions, and
observations made by various judges and academicians. This study makes use of primary data
sources and qualitative analysis as it avoids repurposing work that has already been published

9|Page
.

CONCLUSION
I would like to say that concept of judicial activism has both positive and negative affects .if
the judiciary intervenes too much in the working of the other organs of the democracy and tries
to overreach the constitutional power than this concept of judicial activism looses its
importance and essense .Sometimes in the name of activism judiciary overreach and the power
separation theory becomes useless .The role of Judicial Activism cannot be negated or
overlooked as it played a significant role in providing justice to the underprivileged sections of
the society, indigent individuals, socially and educationally backward classes, victims of
trafficking and under trial prisoners. Proper implementation of fundamental rights could only
become possible due to the advancement of Judicial Activism. There is a narrow demarcation
between activism and overreach. Sometimes in the process of judicial activism, the judiciary
intervenes too much and reflects its personal beliefs in the course of providing justice. The
interpretation of law which is the primary function of judiciary but the courts rather than
interpreting the law start making the law, issue guidelines and directions which is to be done
by the legislature. An activist court is certainly far more efficient than a legal positivist
conservative court to safeguard humanity from legislative and executive tyranny. When the
elected representatives fail to create a welfare state then the role of judiciary becomes
indispensable but the judiciary cannot intervene in the state affairs just to show its supremacy

10 | P a g e
Bibliography
STATUTES:

1. The Constitution of India, 1950

REPORTS:

Law Commission of India, 14th Report on Reform of Judicial Administration, 195

ARTICLES:

1. Aman Kumar Burnwal & Shilpa Rani “Judicial Activism In India: Assertion Of Judicial
Power To Fill The Legislative Vaccum” 2 IJLDAI (2016).

2. A.M. Ahmadi "Judicial Process: Social Legitimacy and Institutional Viability” 1 S.C.C. J.
(1996)

3. Editorial ‘

Where Should Judiciary Draw The Line’ The Hindu, Nov. 11 2017.

4. Dr. Justice B.S.Chauhan “The Legislative Aspect of the Judiciary: Judicial Activism and
Judicial Restraint” Tamil Nadu State Judicial Academy.

5. Harshvardhan Singh Jugtawat “Judicial Activism in India: A Little Done And Vast Undone”
1 IJLI. (2016)

WEB SOURCES:

1. www.scconline.com

2. www.thehindu.com

3. www.indianexpress.com

11 | P a g e
12 | P a g e