Introduction

“Judicial activism is a sharp-edged tool which has to be used as a scalpel by a skillful surgeon
to cure the malady. Not as a Rampuri knife which can kill.”(Justice J. S. Verma, 1996)2 . The
three pillars of Indian democracy are the Executive, the Legislature and the Judiciary. The
Legislature frames the law which is interpreted by the Judiciary and the Executive executes it.
When there are lapses on the part of the Executive and/or the Legislature, when the Legislature
becomes adventurous and the Executive becomes autocratic, careless and insensible, judicial
activism becomes imperative to deliver justice. In this context, the former Chief Justice of India,
A. M. Ahmadi, has rightly said, “In recent years, as the incumbents of Parliament have become
less representative of the will of the people, there has been a growing sense of public frustration
with the democratic process. ... This is the reason why the (Supreme) Court had to expand its
jurisdiction by, at times, issuing novel directions to the executive; something it would never have
resorted to had the other two democratic institutions functioned in an effective manner”.
(Ahmadi, 1996)3 . In India judicial activism has become a subject of debate. To the critics it is
the encroachment into the functions of the other organs of democracy, it is judicial terrorism. It is
argued that judicial activism is “legislating from the bench” (Tannebaum, 2005)4 in the name of
interpreting the law. Sometimes it is accused that the judges are giving rulings on the basis of
their political affinity and personal emotion. Some are decrying that the judiciary is destroying
the legislature “step by step, brick by brick” (Jaitley, May, 2016)5 . To the defenders it is judicial
dynamism and creativity. To them the constitution is not static, it is a dynamic, living document
and it is the judiciary which gives constitutional documents “a continuity of life and expression”
(Cardozo, 1927)6 and tunes them with the social, cultural and technological developments. In
judicial activism a judge's ruling comes from his heart and mind. It is influenced by his emotion
to provide “distributive justice”, rather than to act as a neutral referee never stepping into the
debate area. However, in India judicial activism has presently twisted every sphere of life and
sometimes has moved beyond what is written in the legal principle to provide proper justice.
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 Reasons For Judicial Activism
It is an uphill task to identify clear-cut reasons for judicial activism. Moreover, universal
acceptance of all these reasons may not be guaranteed. But the following reasons are well
accepted under Indian conditions which force the judiciary to become hyper active during
execution of judicial functions.
(i) Judicial enthusiasm
(ii) Legislative vacuum
(iii) Moral pressure on judiciary
(iv) Near collapse of responsible government
(v) The Constitutional provisions
(vi) Guardian of Fundamental Rights
(vii) Public confidence
(viii) Enthusiasm of the individual players.
The above reasons are indicative and not exhaustive. There may be so many other reasons
based on the prevailing situation which alert the judiciary to become catalysts of change.
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 Concept of Judicial Activism
The Supreme Court with its present activist approach has now instilled the concept of
rationalism to overcome the shortcomings of the traditional approach. With the development of
new conceptions many neglected aspects of the judicial process are now properly addressed.
Judicial activism is guided by the following two theories:
(i) Theory of vacuum filling
(ii) Theory of Social Want.

(i) Theory Of Vacuum Filling

According to this theory, inactivity, laziness, incompetence, indifference, indiscipline, lack of
integrity, corruption, greed and disrespect of law by the legislature and/or the executive create a
power vacuum. Nature never allows vacuum to continue and it becomes necessary for the
remaining organ i.e. the judiciary to widen its purview and to fill in the vacuum.

(ii) Theory Of Social Want

This theory affirms that when the current legislation fails to address the problems of the society
and cannot provide alleviation, the judiciary has to undertake the task of societal transformation
to administer justice to the aggrieved. “Thus where legislature falters, the judiciary corrects.”
(Chander, 2003)
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 Origin And Development Of Judicial
Activism In India
Law originated from two sources. The primary source is through legislature and the secondary
source is the judge-made law through judicial interpretation of the existing legislature. Judicial
activism emerges out of these judge-made laws. The evidence of judicial activism in India can
be traced back in 1893. Allahabad High Court judge S. Mahmud held that the pre-condition for
hearing a case would be accomplished only when someone speaks. In the case, the under trial
was not in a position to afford a lawyer (Justice Mahmud, 1893).
The power of judicial review has been expressly provided in the Article 13 of the Indian
Constitution. Article 13 of the Indian Constitution prevents legislatures from making any law
which “may take away or abridge the fundamental rights”. Any law is declared as void if it is
“inconsistent with or in derogation of the fundamental rights”.
Constitutional basis of the judicial review has been provided by Article 13 as it entrusts the
Supreme Court and the High Courts the power to interpret the pre-constitutional laws and to
settle whether they match with the values and principles of our present constitution. If there is
any conflict they become deemed ineffective until their adoption through amendments. But they
must be constitutionally compatible, otherwise any deviation makes them void (Article 13)10 .
Indian Constitution has conferred extensive powers to the Supreme Court under Articles 32,
141, 142 and 144 to pass necessary orders to fill up the vacuum.
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 Early Cases Of Judicial Activism In India
In the early years after independence, India’s courts were technocratic in nature. The following
Supreme Court rulings provide insight into the development of judicial activism in independent
India.
During the reign and dominance of British courts, the Supreme Court functioned as a
technocratic court, but it gradually began to take an activist stance. The first landmark case in
this regard was A.K. Gopalan v. the State of Madras (1950), in which a writ was filed to
determine whether detention without trial was a violation of fundamental rights under Article 14,
19, 21, and 22. The Supreme Court opined that the written Constitution contains the authority
for judicial review. Even though the challenge was unsuccessful, it did start a new legal trend
that became apparent in the years that followed.

Freedom Of Press
In the case of Sakal Newspapers Pvt. Ltd. v. Union of India (1962), the government sought to
regulate the number of pages in relation to the price of the newspaper in accordance with the
Newspaper Act of 1956 and order of 1960. The Supreme Court ruled that newspapers could not
be subject to the same regulations as other businesses because they served as a forum for the
exchange of ideas and information. This decision broadened the protections for free speech
provided by Article 19(1)(a) of the Constitution.

Reservation Policy
In the case of Balaji v. State of Mysore (1963), the Supreme Court reasoned that economic
backwardness was the root cause of social backwardness. The Court distinguished caste from
class and ruled that caste should not be used to assess backwardness. Additionally, it was
decided that the reserved category’s percentage of the total should not exceed 50%. It was
decided that Article 14, as well as the subsets of Articles 15 and 16, must be complied with.
Similar limitations on the reservation were imposed by the Court in the case of Chitralekha v.
State of Mysore (1964).

Habeas Corpus Case

The case of ADM Jabalpur v. Shivkant Shukla (1976), in which Article 21 was brought up,
resulted in the most contentious Supreme Court decision regarding judicial activism. The
majority of the Bench hearing the case of ADM Jabalpur held that in cases of dire emergencies,
such as those that existed between 1975 and 1977, a legal procedure could be established,
following which even human life could be taken away. Although Justice Chandrachud, who
wrote the decision, faced criticism for penning a pro-government opinion, the legal theory he
advanced was an excellent illustration of judicial activism. Justice Chandrachud has interpreted
Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to
maintain the country’s sovereignty if it is threatened by either internal or external aggression. 5
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 Article 21 and Judicial
Activism
If there is a Supreme Court decision that has revolutionized the interpretation of Article 21,
which safeguards the right to life and personal liberty, it is Maneka Gandhi v. Union of India
(1978). This decision has awakened the Indian judiciary from a persistent state of dormancy
with regard to the right to life and the freedom of the individual guaranteed by Article 21 of the
Constitution. A new interpretation of Article 21 of the Indian Constitution was provided by the
Supreme Court of India in the case of Maneka Gandhi v. Union of India. It set a great precedent
for the further evolution of concepts of reasonableness and fairness. According to the Supreme
Court, the concept of life encompasses not just a mere animal existence but also an existence
with all the rights that entails. The Supreme Court declared for the first time that simply outlining
a process for denying life and liberty is insufficient; the process itself must be just and
reasonable. To protect the rights of millions of people who lack access to justice, Article 21 of
the Constitution was expanded to include a broader definition of life, personal liberty, and
“procedure established by law.” It actively denounced the abuse of power and inaction on the
part of public officials as it fought for the interests of the average citizen. 6

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 Women Empowerment
The role of judicial activism extends beyond the aforementioned forms. Another
area where this has been seen is in women’s empowerment. The judiciary has
made significant progress in preventing workplace exploitation of women and
improving conditions for women.
This was also made clear in the case of Air India v. Nargesh Meerza (1981), where
the Supreme Court ruled that the rule requiring an air hostess to leave the
workforce following her first pregnancy was invalid, unconstitutional, and in
violation of Article 14 of the Indian Constitution.
In Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985), the Supreme Court
overruled Muslim Law and extended the period of Iddat from four months and ten
days to provide justice to Shah Bano Begum.
In Vishakha v. State of Rajasthan (1997), the Supreme Court issued guidelines for
the prevention of sexual harassment cases under Article 32 read with Articles 141
and 142. These regulations from 1997 have been replaced by the Sexual
Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of
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 Transformation From Judicial Activism To
Outreach
Parliament has frequently charged the judiciary with judicial interference. The judiciary is acting
outside of its constitutional authority, according to the parliament. Judicial activism that goes
beyond all justifiable limits is referred to as “judicial overreach.” Judicial overreach occurs when
the courts arbitrarily, excessively, and repeatedly intrude into the domain of the legislature and
the executive. Although the differences between judicial activism and overreach are subtle, their
effects on society are completely different. Contrary to the requirement of judicial activism, the
intention of judicial overreach is not genuine. Overreach impedes the functioning of a healthy
democracy’s institutions. The court emphasized that “judicial activism” should not be mistaken
for “judicial adventurism,” noting that “judicial intervention,” “judicial encroachment,” and “judicial
activism” are frequently justified by the argument that the legislature and executive are not
carrying out their duties properly. The judiciary is no exception to this rule, with cases pending in
various courts for more than fifty years. To maintain a healthy balance of power among the three
branches of government, the courts should exercise a certain amount of restraint.8

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 Conclusion
The scope of judicial activism is so broad that no precise definition exists. The powers for
judicial activism or review are derived from the Indian constitution, which empowers them to
perform an effective function by asserting themselves. In the Judiciary, protection of the
Constitution, rule of law, and constitutionalism are strengthened by judicial activism, which
serves as a safety net in the event of a crisis brought on by a different interest group in society.
The judiciary oversees the administration of justice and ensures that decisions are made in the
public interest and in good faith.
However, courts should exercise caution when implementing the concept. The judges should
exercise self-control and limit their interference with other organs. When judges become overly
enthusiastic, they tend to cross certain lines, making it difficult to maintain the traditional
functioning of the courts. As a result, there must be a distinction between judicial activism and
judicial overreach because judicial overreach will destabilize the judiciary. To uphold the nation’s
peace, prosperity, law, and order, the government must work more effectively and smoothly. The
task of covering up and correcting the wrongdoing and poor judgment of the government cannot
be placed as a heavy burden on the judiciary. The skill of judicial activism should be used with
extreme caution because it is the height of judicial creativity and a delicate subject. Otherwise,
the integrity of the system may be undermined.
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