JUDICIAL ACTIVISM IN INDIA: A NECESSARY EVIL

Arpita Saha
National Law University, Jodhpur, India

ABSTRACT

Judicial activism has always been a source of heated debate, especially in the light of recent
developments in this regard. Over the last few years with various controversial decisions, judges of
the Supreme Court as well as various High Courts have once again triggered off the debate that has
always generated a lot of heat. But still, what the term “judicial activism” actually connotes is still a
mystery. From the inception of legal history till date, various critics have given various definitions
of judicial activism, which are not only different but also contradictory. This is an attempt to bring
out the exact connotation of “judicial activism” and to find out its effects on today’s changing
society.

Keywords and phrases: Judicial activism, connotation, public interest litigations, Supreme Court,
controversies.

1. INTRODUCTION

With the framing of the Constitution of India, the three wings of effective governance came into
being, namely the legislature, the executive and the judiciary. The Constitution provides for
separation of powers and hence demarcates 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 only in the text book and the third wing of governance, the judiciary assumes
powers unprecedented for under the name and guise 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 galvanize 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 interest (Rajinder
Sacher, 1999), while according to others, judicial activism and interference is actually preventing
the executive from going astray (A. T. Thiruvengadam, 1999).

2. DEFINING THE UNDEFINED

As the famous saying of Lord Hewart, CJ goes “It … is of fundamental importance that justice
should not only be done, but should manifestly and undoubtedly be seen to be done” (Simon James
and Chantal Stebbings, 1997). It is from this concept that judicial activism emanated and found
expression through judgments of various so-called “activist” judges. They have been responsible
for taking justice to the doorsteps of the citizens, if necessary, through an unwarranted and uncalled
for measure. By stretching the letter of the law a little and acting according to the spirit behind it,
the judiciary has intervened in cases where there is blatant misuse of discretion of executive
authority or a lackadaisical attitude towards booking the corrupt and other anti-social elements in
society. One of the meanings of judicial activism is that the function of the court is not merely to

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interpret the law but to make it by imaginatively sharing the passion of the Constitution for social
justice (Sukh Dass v. Union Territory of Arunachal Pradesh, Sheela Barse v. Union of India).

3. CONCEPT OF JUDICIAL ACTIVISM: THE 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 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 executive (Subhash C. Kashyap, 1997). 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.

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.” (Shailja Chander, 1998)

4. ORIGIN OF THE CONCEPT OF JUDICIAL ACTIVISM

The concept of judicial activism found its roots in the English concepts of ‘equity’ and ‘natural
rights’. On the American soil, these concepts found expression in the concept of ‘judicial review’.
The first landmark case in this regard was the case of Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803). In this case, for the first time the judiciary took an active step and took a step above the
legislative actions. Marbury was appointed 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

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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. 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.

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,
347 U.S. 483 (1954). 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, 163 U.S. 537 (1896) 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.

5. JUDICIAL ACTIVISM IN INDIA: ITS ORIGIN AND DEVELOPMENT

For a very long time, the Indian judiciary had taken an orthodox approach to the very concept of
judicial activism. However, it would be wrong to say that there have been no incidents of judicial
activism in India. Some scattered and stray incidents of judicial activism took place from time to
time. But they did not come to the limelight 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 activism in India.
It was a case of an under-trial who could not afford to engage a lawyer. So the question was
whether the court could decide his case by merely looking at his papers (Justice J. S. Verma, 1996).
Mehmood held that the pre-condition of the case being ‘heard’ (as opposed to merely being read)
would be fulfilled only when somebody speaks. So he gave the widest possible interpretation of the
relevant law and laid the foundation stone of judicial activism in India.

Judicial activism as the modern terminology denotes, originated in India much later. This origin can
be traced to the Theory of Social Want. It was due to executive abuses and excesses that the
judiciary had to intervene during the course of legal proceedings. Let us look into the rationale
behind such intervention. After independence from the Raj, the executive has always looked upon
the judiciary as a hostile branch of the State. This view gained more momentum and popularity
when the bureaucracy degenerated into a system for personal and not public gains. Exploitation and

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corruption became inbuilt in the present political system. The masses were oppressed beyond
imagination by the unbridled actions by Money power, Muscle power, Media power and
Ministerial power (B. Venkatachalapathi, 1998). In this scenario, some emergency situations arose
which could not wait for the Parliament for its looking into. Hence, it became a responsibility of the
judiciary to do something to provide relief to the oppressed masses of the society. In Sunil Batra v.
Delhi Administration, AIR 1978 SC 1548, Justice V. R. Krishna Iyer described the situation in the
following words: “Though legislation was the best solution, but when lawmakers take for far too
long for social patience to suffer. Courts have to make do with interpretation and curve on wood
and sculpt on stone without waiting for the distant marble.” Therefore, in the historic case of
Mumbai Kamghar Sabha v. Abdul Bhai, AIR 1976 SC 1465, the Apex Court introduced the
doctrine of judicial activism, though without the nomenclature. The theory of judicial activism
received impetus in the case of Maneka Gandhi v. Union of India, AIR1978 SC 853, where the
Apex Court substituted the due process clause in Article 21 instead of ‘procedure established by
law’ in order to bypass the absolutism of the Executive and its interference with individual
freedom. In course of time, the PILs carried on with the task of unearthing many scams, providing
justice to the citizens and also to enhance their rights.

Towards beneficial effects

Prior to 1970, the view that existed among the common mass was that the Parliament is the
sovereign body and it can override not only the executive vis-à-vis the judiciary but also the
Constitution. This was the prevalent view in the days of the landmark case of Golaknath v. Union
of India, AIR 1967 SC 1643. However it was in the twin cases of Maneka Gandhi v. Union of
India, AIR1978 SC 853 and Keshvanand Bharati v. State of Kerala, AIR 1973 SC 1641, that the
judiciary changed its stance and formulated new interpretations of laws based on the principles of
humanity, morality, reason, liberty, justice and restraint along with the wholesome spirit of the
Constitution. It was in the case of Keshvanand Bharati v. State of Kerala that the Court outright
rejected the stance that Parliament is sovereign. Not only that, the Apex Court also formulated the
‘doctrine of basic structure’ which formed an impenetrable structure against all the despotic and
whimsical actions of the executive or for that matter, the legislature. This indeed is a far-reaching
development in the annals of Indian jurisprudence for meeting the challenges of troubling times and
issues confronting our democratic and secular Republic (S.R. Bommai v. Union of India, AIR 1994
SC 1918 and M. Ismail v. Union of India, AIR 1995 SC 605). Hence, in troubling times, the poor
and the helpless sections of the society always have had the firm stance of the pro-active judiciary
on their side. Not only that, the NGOs, the advocates and other people have come forward pro bono
publico and the judiciary has always been very co-operative in devising newer rights as part of
basic human rights (Sonia Hurra, 1993).

In the case of Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, 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 (Charles Sobhraj v. Superintendent of Tihar Jail, AIR 1978 SC 1514;
Shriniwas v. Delhi Administration, AIR 1982 SC 1391; D.S. Nakara v. Union of India, (1983) 1
SCC 304). In M.C. Mehta v. State of Tamil Nadu, AIR 1991 SC 417, 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 (Lakshami Kant Pandey v. Union of India, (1984) 2 SCC 244;
Lakshami Kant Pandey v. Union of India, (1987) 1 SCC 667; Sheela Barse v. Union of India,

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(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).

Pro-environmental stance of the judiciary: The Indian judiciary has taken a very active stance in
protecting the environment for the welfare of the people. Many environmentalists have thanked the
judiciary for the pro-environment standing it has taken in some of the recent cases (K. Sukumaran,
1998). The initial stage of apathy and indifference of the Indian judiciary towards environmental
issues has now been replaced by the sympathetic and active approach of the judiciary towards
environmental policies, environmental hazards etc. as an aftermath of the Bhopal Gas Tragedy by
the infusion of pro-environmental steps in the Constitution and by declaring right to healthy
environment as a fundamental right guaranteed under Article 21 of the Constitution (Municipal
Council Ratlam v. Vardhichand, AIR 1980 SC 1622; M.C. Mehta v. Union of India, AIR 1987 SC
1086; Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715). The Court has also
directed several companies to take necessary measures to protect the environment and reduce the
pollution (Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431; M.C. Mehta
v. Union of India, (1986) 2 SCC 176; and M.C. Mehta v. Union of India, (1996) 4 SCC 750). In
some recent cases, the Supreme Court has shown its concerns over the pollution-ridden
monuments, heritage buildings, rivers etc. (M.C. Mehta v. Union of India, AIR 1997 SC 735;
Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295; M.C. Mehta v. Union of India, (1987) 4
SCC 463).

Gender jurisprudence: Gender jurisprudence has emerged in India due to pro-active steps taken
by the judiciary in this regard. There have been various provisions in the Constitution as well as
other enactments to prevent atrocities against the women and gender inequality. However, these
legislations remained confined to text books and nothing could be done till the time the judiciary
became active and decided to remove all atrocities against women by implementation of the
prevailing legislations. The Court has laid down elaborate guidelines to prevent sexual harassment
of women at workplaces (Delhi Democratic Working Women’s Forum v. Union of India, (1995) 1
SCC 14; Vishaka v. State of Rajasthan, AIR 1997 SC 3014). The Apex Court has also laid down
exhaustive guidelines for the protection of women prostitutes and for the rehabilitation of their
children (Gaurav Jain v. Union of India, AIR 1997 SC 3021).

Social upliftment of lower castes: Though the emancipation of the Shudras and the lower castes
from the different forms of oppression and social discrimination had been thought of long ago by
the legislature and necessary legislations had been framed to achieve the same, yet the goal could
not be achieved due to poor implementation and laid-back attitude of the executive. It was at this
situation that the judiciary took an active step and came ahead with Dalit jurisprudence to end the
pitiable conditions of the Dalits (the Harijans, the Girijans and the Adivasis labeled together).
Several judgments have been delivered by the Supreme Court for the betterment of Dalits and their
ranking on equal footing in the society with the other castes (State of Kerela v. N.M.Thomas, AIR
1976 SC 490; A.B.S.K. Sangh (Rly.) v. Union of India, AIR 1981 SC 298; State of Karnataka v.
Appa Balu Ingale, AIR 1993 SC 1126; State of M.P. v. Ram Krishna Balothia, AIR 1995 SC 1198).

Human Rights: 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 mentioning e.g. right to information (L.I.C. v. Manubhai
Shah, AIR 1993 SC 171; Secretary, Information and Broadcasting v. Cricket Assn. of W. B., AIR

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1995 SC 1236), right to work (Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC
1988), right to get minimum wages (People’s Union for Democratic Rights v. Union of India, AIR
1982 SC 1473), right to speedy trial (A.R.Antulay v. R.S.Nayak, AIR 1992 SC 1701), right to
secrecy (R. Rajagopal v. State of T.N., (1994) 6 SCC 632), right against inhuman treatment
(Kishore Singh v. State of Rajasthan, AIR 1981 SC 625) 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.” (Gumanmal Lodha, 1984). Judicial activism has removed the iron
curtain of rigid procedure that stood between public justice and the court.

6. BLESSING OR CURSE

The moot question now arises is whether judicial activism is right or wrong. Here are some
probings 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 country (S.N. Chary, 1997). (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 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” (P.B. Sawant, 1987).
(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 (T. R. Andhyarujina, 1992).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.). (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 India, AIR 1983 SC 339; Bandhua Mukti Morcha v.
Union of India, AIR 1984 SC 803; M.C. Mehta v. Union of India, AIR 1987 SC 1087).
.
7. CONCLUSION

Recently 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 a

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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 seven 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 (J.N. Pandey, 1998) as well as by individuals. The common people
are very often denied the protection of law due to delayed functioning of the courts, also called
judicial inertia or judicial tardiness (Nikhil Chakrawartty, 1997). 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 even-handed
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 (A. S. Anand, 1998) and the judges have to ensure that this confidence is not lost.
As Justice J.S. Verma (as he then was) 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.” (J. S. Verma, 1996)

8. REFERENCES

A.T. Thiruvengadam, “A Case of Institutional Conflict”, The Hindu, April 27, 1999, p. 21
B. Venkatachalapathi, “Politics of Violence in India”, The Third Concept, Vol. 12, No. 141, Nov.
98, pp. 17-19, at p. 17.
Gumanmal Lodha, Judiciary: Fumes, Flames & Fire, Unique Traders, Jaipur, 1984, p. 355.
J.N. Pandey, Constitutional Law of India, Central law Agency, Allahabad, 1998, p. 319.
Justice A.S. Anand in “CJI defends Judicial Activism”, The Hindustan Times, October 30, 1998,
p.10.
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.
K. Sukumaran, “Asia’s Next Crisis”, The Indian Express, September 17, 1998, p.8.
Nikhil Chakrawartty, “Judicial Activism, Right or Wrong”, Mainstream, March 29, 1997, pp. 3-4,
at p. 4.
P.B. Sawant, Judicial Independence- Myth & Reality, Board of Extra-Mural Studies, Pune, 1987, p.
70.
Rajinder Sacher, “Judges as Governors”, The Indian Express, August 4, 1999, p. 8.
S. C. Kashyap, “Judiciary-Legislature Interface”, Subhash C. Kashyap (ed.), Judicial Activism and
Lokpal, UppalPublishing House, New Delhi, 1997, pp. 60-76, at p.71.
S. N. Chary, Mera Bharat Mahan (My India is Great), Wheeler Publishing, New Delhi, 1997, p. 56.
Shailja Chander, Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles, Deep
and Deep Publications, New Delhi, 1998, p. 223.
Simon James and Chantal Stebbings (eds.), A Dictionary of Legal Quotations, Universal Law
Publishing Co. Pvt. Ltd., Delhi, 1997, p. 80.

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Sonia Hurra, Public Interest Litigation: In Quest of Justice, Mishra & Co., Ahmedabad, 1993, p.
158.
T. R. Andhyarujina, Judicial Activism and Constitutional Democracy in India, N. M. Tripathi Pvt.
Ltd., Bombay, 1992, p. 8.

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