Judicial Activism

JUDICIAL ACTIVISM
Author(s): M. M. Semwal and Sunil Khosla

Source: The Indian Journal of Political Science , JAN. - MAR., 2008, Vol. 69, No. 1 (JAN.
- MAR., 2008), pp. 113-126
Published by: Indian Political Science Association
Stable URL: https://www.jstor.org/stable/41856396
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The Indian Journal of Political Science
Vol. LXIX, No. 1 ,Jan.-Mar„ 2008
JUDICIAL ACTIVISM
M. M. Semwal
Sunil Khosla
Judges must be sometimes cautious and sometimes bold. Judges must respect both the
traditions of the past and the convenience of the present. Judges must reconcile liberty
and authority; the whole and its parts. Impartial, independent and positive justice is the
foundation of the efficiency of the government. Governance is the prerogative of the legislature
being a popularly elected body of the people. The executive is responsible for the proper
enforcement of the laws made by the legislature. But when the legislature does not bother
about the rights and liberties of the individuals and the executive becomes apathetic in the
matters of implementation of the laws, the judiciary is the only way out to act as the engine
of social welfare to secure justice for every citizen in the various spheres of life whether it
is child labour or environment or human rights. Judicial activism is nothing but an expanded
role of the judiciary as it encompasses an area of the legislative vacuum. It is an effort to
revitalize the system through the provision of simplest, fastest and inexpensive access to
individual. This paper attempts to deal with questions such ß s what is judicial activism?
How does Indian Constitution provide judicial activism? How does the concept of judicial
activism come into existence in the Indian polity? To what extent the judicial activism has
improved the quality of governance in India?
The judicial system in India occupies a significant place as it enquires the validity of laws,
their interpretation and implementation framed by the legislature. Besides, settlement of mutual
disputes and the disputes arising out of the clashes between Centre and the States and amongst
the States also fall under the jurisdiction of the judiciary. It also protects the rights and liberties of
the citizens. Justice, that is fair and just to all without any discrimination is expected from judiciary.
Moreover, efficiency of the government largely depends on the impartial, independent and positive
justice.
When the legislature enacts laws resulting in the infringement of the freedom and security
of the individuals and the executive stops performing its duties like enforcement of law, the only
way out is the judiciary. Judiciary is compelled to take over in some measure the duties of the
executive to ensure justice to the citizens.
In a democratic polity, good government is indispensable for any state and the three organs
of the government constitute three pillars of good and effective governance and lack of harmony
amongst them can lead to administrative chaos. In such a situation, independent and fearless
judiciary forms the core of democracy. In the Constitutional scheme, the judicial system works as
an active catalyst to secure justice for every citizen.
Though the Indian judiciary has been honest and independent in the performance of its
duties as regard to the executive control and influence. However, under the changing socio-economic-
politico situations in India people have higher expectations from the judiciary. In the event of
poverty and illiteracy, its challenging task is to ensure justice to all. The entire system of governance
is based on the principle of equal justice forali. It is now widely accepted that the nature of judiciary
has become social and economic.

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The Indian Journal of Political Science 114
SOCIAL WELFARE AND ROLE OF JUDICIARY
When the executive is not taking important decisions in public matters while adopting
indifferent attitude towards the problems of the people then the judiciary exercises the powers
vested in them by the Constitution to remove the public grievances. So, in the present times, the
concept of judicial activism has emerged as a new phenomenon in the Indian polity with a specific
role of judiciary in the social welfare. During the last two decades, the working of Indian judiciary
has been characterized by judicial activism. It has increased the significance of judiciary in the
process of governance. Being an activist, judiciary has delivered historic verdicts relating to various
spheres of life, environment, human rights, child labor etc. As it is a new phenomenon, therefore,
it has generated and initiated a debate in the Indian polity. This concept is being criticized and
appreciated in the Indian society, as there are defenders and opponents of judicial activism. It
constitutes two schools of thought, one in favor of judicial activism and the other against it. Besides,
one thing is certain that judicial activism has improved the working of Indian politics. The social,
economic and political justice can be achieved if every instrumentality under the Constitution
functions as per the mandate of the Constitution.1 The inactivity, incompetence, disregard of law
and constitution, by the legislature and callousness, negligence, corruption, greed for power, and
money, indiscipline in the executive had created the vacuum as a result of which both the organs
of the government failed to fulfill the constitutional obligations and compelled the judiciary to play
an activist role2 in order to fill the vacuum created by the executive and the legislature and to
check the unconstitutional behavior of the executive and the legislators. Now the basic questions
are: what is judicial activism? Does Indian Constitution provide judicial activism? How does judicial
activism come into existence in the Indian polity? Whether failure of executive is responsible for
judicial activism? To what extent and in what way the judicial activism has improved the quality of
governance in India? In this paper, a modest attempt has been made to respond to these and
related questions.
JUDICIAL ACTIVISM: THE CONCEPT
While responding to the meaning of the term judicial activism, it is needed to be clarified
that judicial activism is not the performance of the function of settling the disputes in accordance
with Constitution or law of the land. It is the adoption of pro-active approach by the judiciary.
Judicial activism reflects the situation when the judiciary comes out of its sphere of traditional rote
and becomes active in its working while laying down the policies and programmes to ensure the
protection of rights and liberties of the people which otherwise is within the discretion of the
executive and the legislature. One of the arguments raised in the present paper is that the judiciary
is doing its duty to ensure the accomplishment of the ideals of the welfare state. It is not overstepping
its areas assigned by the constitutional framework rather it is in tune with democratic norms. It is
not judicial anarchy, judicial over activism and judicial despotism.
Judicial activism is a state of mind. It has its genesis in the inactivity and apathy of the
legislature and the executive. It is nothing but the performance of the judicial activities. It is creativity

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Judicial Activism 115
to fill the gulf between
Indian Constitution doe

part of the present day
function of judiciary, w
the jurist intends to exp
court in general and aga
action is generally unde
In order to examine th
provisions of the Indian
Directive Principles of S
the different spheres o
movement from the pers
groups and organization
of constraints of money
In Kesavananda Bharti
Constitution of India suc
of judiciary cannot be am
unconstitutional. Such e
Constitution, is nothing
features of the Constitu
Judicial activism is th
expected to adjudicate o
wing of the governmen
Constitutionalism, judici
judiciary are not restric
safeguard individual libe
According to the Cham

action of a philosophy o
been stated to mean the
Judicial activism mean

judicial pronouncement o
The task of the judiciary
the Constitution for the
Marshall in Marbury v
Justice Bhagwati, the f

activism is a central feat

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independent judiciary. The term judicial activism is

signifying an important source of judicial power, w
result.14 At the same time, the judges have to b
and political compulsions and recognize the chan
The activist role of the judiciary is not only con

and legal rights but also tries to implement the
(Directive Principles of State Policy) of the Constitu
The exposure of the magnitude of corruption

political leaders are not immune to judicial scrutin
becomes a principal legislator in the governmenta
assume this role, then other will call it judicial ac
So the judicial activism is the expanded role of

vacuum in the field of human rights. Justice A.S
strength of democracy and reaffirms the faith in th
democratic society, if the judiciary shuts its door
responding and the executive is indifferent. It m
slumber and perform their due role."16 It is a b
provision of simplest, fastest and cost free acces
judiciary has made it possible to realize the Pream
Constitutional courts, the Supreme Court and
extent in the eighties and onwards.
Judicial activism has a dimension of public in

involved. Judicial activism seeks to restore to th
colonial practices of power, which seek to convert
enforcement of the Constitutional norms at the
activism has provided for the expansion of the Fun
interpretation for the purpose of providing acces
rights. It has made the executive to be careful an
in a rational manner because they are aware that
liable to face the consequences.
It can be inferred from the foregoing discussio

while deciding. In other words, it means the act
followed an activist goal-oriented approach in th
dimensions of new social movement. Since seven
incredible transformation and is being identified by
the oppressed and the bewildered."17

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The end of the seventies

Supreme Court started con
Article 21 has received le
privacy, the right to lega
conditions and medical aid
clothing and shelter, rig
landmark decisions of th
rights, which didn't find a
of directive principles of
law have been made enfo
Article21 -afeatofjudicial
for this have been provid
Court and the High Court
fundamental rights but a
interest of the poor and
social, in the form of equ
of the masses in the fast
enacting. It needs to be
implanted the sapling of
the activist role of court i
RIGHT TO LEGAL AID
The activist role the judiciary in late seventies gave an expansive meaning to social and
economic justice. So far as the development of fundamental right to free legal aid is concerned, the
judiciary did not hesitate to offset the legislative apathy. It is worth mentioning that Justice Krishna
Iyer and Bhagwati have contributed to a greater extent in the achievement of the said objective.
Contribution of Justice Krishna Iyer
In Hoskot v State of Maharashtra,21 the court carved out a right to free legal aid from the
provision of 'procedure established by law' under Article 21 . Justice Iyer opined that this right is
available under following circumstances: first "a person is disabled incommunicado situation";
second, if the circumstances of the case and the gravity of the situation so demands; and third, the
end of justice call for such service. Once the court is satisfied on these counts, then it may order
for providing the legal service to such person.
In Hussainara Khatoon case, the miseries of the helpless, hopeless, unfortunate, forgotten
specimens of humanity languishing in jails for years awaiting trial in court 0f |aw to commence, has
been exposed. According to Court, one of the causes for such situation was lack of legal service
to these destitute and homeless, a cry that has yet to receive any response 22

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Contribution of Justice Bhagwati
The court took a serious note of the governm

fair and just procedure' in Haissainara Khatoon
provided with the legal services. The apex court
'the fundamental contributional directive', but thi
as judicial activism clinched on the Indian du
In Khatri's case, the court showed its regret f

to legal aid. The court opined that the financial
such right. The legal aid case law reveals tha
criminal offence, which will offend any peace lo
case that there may be cases involving offence
law prohibiting prostitution or child abuse and
legal services need not be provided by the Stat
So far as the Constitution of India is conc

composition, working and role of judiciary. As suc
in the Constitution. The Constitution of India
founding fathers of the Constitution were well
free from the legislative and the executive con
provisions regarding the independence of judicia
Constitution has always assigned a very active role
roles assigned to the judiciary like: as guardian
Constitution, as an arbitrator to settle the disp
hand and amongst the States on the other. More
to the Constitutionality of laws framed falls with
Constitution, the judiciary has to interpret its
conditions of the society. It appears that the Co
as it has widened the frontiers of its jurisdiction
confining it to the interpretive role. Somehow
role, inspired by the value-laden vision of the C
to impart new directions and dimensions of ju
the judiciary is not only interpretative but also la
socio-economic scenario to realize the ideals e
demands active judicial role. Judiciary has wide
there is inaction by the executive. From 1952 t
and perform its active role due to variety of re
Judicial activism is recent in its origin in the I

form of power of judicial review had its operat

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in 1 803 where Justice M

department to say what
judicial decisions.
Adjudication is the soci

the champion of socio-e
always attended with a se
Instead of confining itself
of the policy making, the

have assumed an active ro
in our democracy. The ac
the recent years.
JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION
In Indian polity, the origin of judicial activism can be traced back to emergency when
Justice V.R. Krishna Iyer and Justice P.N . Bhagwati were the initiators of new phenomenon in the
working of judiciary in the form of Public Interest Litigation (PIL) which has introduced a new
dimension regarding the involvement of judiciary in public administration. Justice Krishna Iyer
described law as a social auditor and only some one with the public interest can ignite this. Justice
P.N. Bhagwati propounded in S.P. Gupta case that the Court has to innovate new methods and
devise new strategies to provide access to justice to majority of masses that are denied basic
human rights. The exposure of the brutality of bonded labor, pollution through industrial effluents in
Jamuna, environmental degradation, education capitation racket etc.
Since seventies, the Supreme Court started accepting genuine case even from the person
who is not affected. The Public Interest Litigation covers in its jurisdiction the cases of infringement
and injury to common public interest due to official apathy and the judgments pronounced in such
cases belong to the arena of judicial activism. It guarantees justice to a larger section of society,
which is deprived of access to justice. In India, social activists and public interest litigants have
actively helped the higher judiciary in the promotion of steps to establish the welfare of the under
privileged, exploited and oppressed class. The Supreme Court as social activist took into account
the problem and the plight of children and women, oppressed and weaker sections of the society,
bonded labor, casual labor, mentally and physically handicapped, under trial prisoners, detenues,
convicted persons held under custody. The judiciary has come to be a reformer whose role can
affect socio-economic scenario.
Public interest litigation is a significant contribution of judicial activism in a Welfare State

governed by rule of law where it protects and enforces the individual and collective rights. In
Upendra Baxi v State of U.P. case, the Supreme Court treated a letter as writ petition which was
written by two law Professors complaining that the inmates of protective home were living in
inhuman and degrading conditions in violation of Article 21 and due to socially and economically

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disadvantaged position, such inmates were not in

Here the court not only treated the letter as wr
Professors to maintain the action.
In Sheela Barse v State of Maharashtra case,24 the Supreme Court treated a letter written
by a journalist as a writ petition containing a complaint regarding custodial violence on women
prisoners. There are several instances where the court allowed the public-spirited person and
welfare organizations to move the court for those persons who were not in a position to move the
court themselves for the redressai of injustice done to them due to the financial constraints and
underprivileged position.
Not only this, the court even went one step further and granted permission to the public
minded persons to maintain action against state where the inaction of state machinery causes or
is likely to cause public injury.25 In'S.P. Gupta case,26 the Supreme Court of India in its decision
held that any member of the public having sufficient interest might move the court for judicial
redress for public injury arising from the violation of provisions of the Constitution. So the judiciary
of today is performing as protective and inductive role for ensuring the social justice. In an interesting
instance, the right to live has been animated to life by judicial activism while including in its
meaning the right to live with human dignity, right to livelihood, the right to have access to road in
certain circumstances, enjoyment of pollution free water and air etc. Environmental protection
while ensuring green belts, open space for maintenance of ecological balance, forbidding stone-
crushing activities near the residential places, instructing the industrial units to setup the effluent
treatment plants, installation of the air pollution controlling devices for the prevention of air pollution,
closure of recalcitrant factories in order to save the communities from the hazards of environmental
pollution etc. are seeking shelter under the umbrella of judicial activism. In M.C. Mehta v State of
Tamil Nadu case,27 the Supreme Court, in public interest litigation, formulated the concrete policy
for the eradication of the evil of child labor, which is a protective as well as inductive instance. It is
due to the inaction of administration to tackle the burning problem. In this case, the judicial
activism aimed at the protection of child from being engaged in prohibited work and at the introduction
of the facility of education to the children. The cases in public interest litigation have turned to be a
fertile preserve of judicial activism.
Now the question arises, what are the logical bases of the Public Interest Litigation? Poverty,
illiteracy, caste-ridden society, backwardness, expensive judicial process and delayed justice
constitute the logical bases of public interest litigation. It is too much to expect from poor and
illiterate people that they would come out openly against the infringement of their individual or
group-rights while fighting with those who are powerful . This argument gives rise to further question
as to what is the way out to get rid of this situation. This situation can be tackled if some public-
spirited men think for them and lend support in case of infringement affecting the public adversely.
H. M. Seervai cites an example of public spirited individuals being granted locus to move the courts
- with beneficial results to public administration - in Piloo Mody vs State of Maharashtra in 1 975

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the petitioner, a public sp

leases of valuable plots
result of the litigation w
substantial sum in thos
public interest litigation,
requires correction.28
Such cases are taken up e

strangers. This further l
court in the cases of infr
The Supreme Court hel

treated as a petition in t
undergone an incredible
brought into focus the Su
a means to achieve justic
regard for the peculiar soc
various socio-economic rig
of rights like right to liv
education in Unnikrishna
treated with human digni
into Article 21 to face th
In the Constitutional ev
interests in the field of h
to consult lawyer during i
dignity free from exploi
handcuffing, the right a
sexually harassed at the p
late seventies, which is a
registering significant g
Constitution, common
beneficiaries turned out t
(Forty-second Amendment
Article 39-A, which direc
to ensure that no citizen
So the objective behin

sections of the society w
weaker sections but also
delivered various verdict

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like human rights, environment, governance et
The Indian Republic has trichotomised structu

formulates the laws which control the Council of
within the Constitutional limits and the jud

excesses committed by the other two branches
people. Human Rights and Fundamental Rights
violates.31 Whenever the parameters set by the
the Articles 32, 141, 142, 144 and 226, which e
causing injury.
JUDICIAL ACTIVISM: SOME ARGUEMENTS
The Court must step in whenever the basic human rights are violated and the executive
deviates in doing justice and interferes with process leading to the miscarriage of justice. Out of t
various factors of judicial activism, two factors deserve more attention: one arguement is that th
judicial activism is the product of failure or inaction of the executive. It is believed that the inacti
of the executive forced the judiciary to step even in those areas, which are not conventionally
assigned to the judiciary. The executive is there to implement the laws in order to ensure the goo
governance in the society. But in the recent past, the performance of the executive has be
hopeless as far as the law implementation is concerned. At this stage the pertinent questio
which strikes the mind, is, if the Constitution has conferred vast powers and jurisdiction on t
judiciary then what is the need of judicial activism? When any of the three organs of the government
becomes inactive, the whole system of administration collapses and the objective of gener
welfare loses its relevance. It is worth mentioning that the judiciary had to step in those areas
which do not fall under its jurisdiction when the cases of corruption came into seen, the executiv
has neither vision nor commitment to perform its role. In the process, the governance has becom
a bit casual. These circumstances compelled judiciary to intervene and assert its role as an
activist and as the guardian of the law when those who ought to enforce it do not respect the law
It appears that the objective is to compensate the failure or inaction of the executive.
The second arguement is that the judicial activism is the result of the inactivity of the
executive or in other words, it is the urge for judicial populism. It is argued that the judiciary h
acquired the power of judicial activism to become important vis-à-vis the other organs of the
government. The judiciary has encroached the areas assigned to other organs of the governmen
It is believed that judicial activism is the brainchild of a few judges who are in search of popularit
The argument is that while exercising the power of judicial activism, keeping the judges busy
public interest litigation, the traditional litigation becomes major casualty.
Another arguement is that judicial activism is the product of socio-economic change, which
has taken place in the Indian society since independence. Social activism is the most complex an
challenging task facing the modern judiciary today. It cannot attain legitimacy in social and politi

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spheres without making

the judiciary in view of
exploitation, which are t
organs of the governme
changing requirements o
while keeping in view th
has been called a "corner
change. It has to addr
context because the wea
illiteracy and ignorance.
benefits of socio-econom
Besides, the Supreme C

of judicial pronounceme
to life under Article 21
Tellis v Bombay Munic
Bombay and observed th
1 993, the right to educat
to pollution free environ
Khatoon case,35 it was
implicit in the guarante
provision of safeguardin
human rights jurisprud
right to education to Fu
exaggeration in saying t
Fundamental Right Indi
Bommai v Union of Ind
within the enlarged juris
The Constitution of Ind

The powers and functio
"whenever the political p
the other to maintain t
more onerous duties. Th
State in the exercise of
The courts have begun

role. The problem comes
judicial activism. Judicia
court.

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It should be an integral part of the judicial pro

activism and judicial restraint should go side by
continue harmoniously.
The foregoing discussion leads to the conclusio

to operate in their respective clearly marked field
for the welfare of the citizens of this country. It e
three wings should function in complete harmony
the basic human rights of the underprivileged whi
In human rights jurisprudence, the judiciary has
the egalitarian democratic and free society in tun
rights. Right to information, right to work, right
right against inhuman treatment are some of the
human right and judicial activism is the savior of
dynamism. This has been given the title of judicia
arises when the citizen complains about unfair tr
the executive or the legislature. When the execu
courts step in and ensure the compliance with
spectator when the basic human rights are infrin
and the down trodden for justice. In the words of
the strength of democracy and reaffirms faith of
to shut its door to the citizens who find the legis
the citizen would take to the streets and that would
functioning of the State."
Notes and References :
1 . R.K. Bag, Judicial Activism vis-à-vis Public administration, The Administrator, Vol. X
April-June 1997, p. 167.
2. Ibid.
3. Judicial activism: Its impact on Public administration, The Adm

April-June 1997, p. 179.
4. P.M. Bakshi, Judicial activism. Some reflections, The Administ

June 1997, p.5.
5. K. L. Bhatia, Judicial review and judicial activism: Acompar

Germany from an Indian perspective, Deep and Deep Publish
p.116.
6. AIR 1973 SC 1461.

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7. AIR 1980 SC 1789.
8. Susanta Chatterji, For Public Administration: Is Judicial Activism Really

Legislative Anarchy and Executive Tyranny, The Administrator, Vol.42 (2
1997, p.9.
9. Ibid.
10. Satyabrata Sinha, Judicial Activism. Its Evolution and Growth

42(2), April-June 1997, p.51.
11'. , Sukh Das v Union Territory of Arunachal Pradesh (1986) 2 S
12. Marbury was appointed to the post of Judge under the Judi
United States Federal Government. Though the warrant of appoint
could not be delivered. Marbury brought an action for the issue of
By then, Marshal had become the Chief Justice f the Supreme
been appointed by the outgoing President, who lost the election. J
the imminent prospect of the Governmentnot obeying the jud
Marbury was to be upheld. In a rare display of the judicial stat
power of the Court to review the actions of the Congress and t
Justice Marshall declined the relief on the ground that Section 1 3
1789, which was the foundation for the claim made by Marbur
since it conferred in the violation of the American Constitution,
the Supreme Court to issue the writ of mandamus. He observe
was the fundamental and paramount law of the nation and it is fo
the law is. He concluded in the particular phraseology of the Cons
States confirms and strengthens the principle supposed to be
Constitutions. That a law repugnant to the Constitution is void
well as other departments are bound by that instrument. If there
law made by the Congress and the provisions in the Constitution,
court to enforce the Constitution and ignore the law. The twin co
review and judicial activism were thus born. (The excerpts from t
N. Rao, "Judicial Activism" appeared in Ebclndia.)
13. K. N. Bhat, Judges vs Judges, The Tribune, December 15, 20
14. A. Lakshminath, Jurisprudence of Judicial Activism, The Adminis

June 1997, p. 109.
15. J bid . , p. 106
1 6. C.M. Jariwala, Poorman's Access to Judicial Justice: A Reality

of Public Administration, Vol. XLV, No. 3, July-September 199

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1 7. State of Rajasthan v Union of India (1 97
1 8. Fali S. Nariman, Judges vs Judges, The T
19. Ibid.
20. Ibid.
21 AIR 1978 SC 1548.
22. Quoted in C.M. Jariwala, Poorman's Access to Judicial Justice: A Reality o

Indian Journal of Public Administration, Vol. XLV, No. 3, July-September 199
23. Quoted in Ibid., p.341 .
24. AIR 1983 SC 381.
25. G.R. Bhatacharjee, Judicial Activism. Its Message for Administrators, The Ad
Vol.42 (2), April-June 1997, p.39.
26. AIR 1982 SC 149.
27. AIR 1997 SC 699.
28. Fali S. Nariman, n. 18.
29. AIR 1987 SC 1086.
30. AIR 1993 SC 2178.
31 . V.R. Krishna Iyer, Judicial Activism and Administrative Autonomy, The Admin
Vol. 42(2), April-June, 1997, p. 1.
32. Granville Austin, The Indian Constitution: Cornerstone of a Nation, New Delhi,
1999.
33. AIR 1981 SC 746.
34. AIR 1986 SC 186.
35. AIR 1979 SC 1360.
36. Mohini Jain v State of Karnataka AIR 1 992 SC 1 858.
37. N. Sanjaoba, Judicial Activism: Politics of Power and Judicial Supremacy, The
Administrator, Vol. XLII (2), April-June 1997, p.162.
38. Ibid., p. 165.

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JUDICIAL ACTIVISM

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SOCIAL WELFARE AND ROLE OF JUDICIARY