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The Theory of Judicial Activism in India

The Constitution of India is one of the finest constitutions to have ever been created in the history of democratic and civilized world. It is a wholesome document carrying in itself diverse mechanisms as to the functions, composition and administration of the various organs of government´┐Żlegislature, executive and judiciary.

This further suggests that these different organs of government should have a significant separation of powers and that one branch should not infringe on the authority of another whereby, maintaining a delicate and swift balance among all the branches. This proposes for various principal functions and rights to the judicial branch of the government, so much so that it can explicitly declare a law formulated by the legislature or any action taken by the executive to be unconstitutional, in order to maintain societal law and order. This ideal is known as the theory of Judicial Review, or Judicial Activism in a broader sense.

Over the years following independence, this inherent ideal of the Indian constitution has been a matter of longstanding debate, which brings into limelight especially, the intense tussle between the judicial and legislative hands of governance in the country.

History & Evolution
Judicial activism is a way of applying court review or a description of a specific judicial decision in which the judge is viewed as more willing to rule on constitutional problems and overturn legislative or executive measures.

Although debates over the proper role of the judiciary with this respect dates back to the founding of the United States, American historian Arthur M. Schlesinger, Jr. appears to be the first to coin the phrase 'Judicial Activism', in 1947[1].

Judicial Activism is a notion that began as an American concept of questioning the logic of legislative and administrative measures concerning citizens' rights and essential basic ideals of the Constitution itself, and has since spread to the different judicial systems of numerous democracies, particularly India.

In so far as its foundation in the Indian context in concerned, then credits are given to VR Krishna Iyer, J, PN Bhagwati, J, O Chinnappa Reddy, J and DA Desai, J. The Supreme Court and the High Courts of India have the authority to review the constitutionality of any law, and if such a statute is found to be inconsistent with the provisions of the constitution, the court has the authority to declare the law unconstitutional. Moreover, it should be noted that the district and subordinate courts of the country do not have the power to review constitutionality of laws.

The theory of judicial activism in post-constitutional India has, through numerous landmark judgments and incessant judicial reinterpretation, sustained to not only establish its independent roots in the present judicial system, but has also maintained to evolve itself in accordance with the needs and circumstantial developments of the diverse political, cultural and socio-economic Indian community.

Scope in the Present Legal System
Referring to Art. 13(1)[2] and (2)[3] of the Constitution of India which state that:
  1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The Supreme Court and all such High Courts in the territory of India, stand as the sole and apex institutions for the protection and security of such provisions, in respect of all the laws made and/or existent in light of the fundamental rights of the citizens and the basic essence of the constitution. However, there have been numerous examples alleged, especially by the Legislature, that the theory of judicial activism in turn provides methods to the apex courts to override the constitution itself.

This could be well understood from the example of one of the most disputed case laws with respect to the ideas of separation of powers and judicial activism, famously known as the '4-Judges Case', on the issue of appointment of judges in the Supreme Court and High Courts, via the British-era Collegium system.

The four cases´┐ŻSP Gupta v. Union of India, 1981[4], SCAORA v. Union of India, 1993[5], Special Reference No. 1 of 1998[6] and again SCAORA v. Union of India, 2015[7], in an exhaustive process deliberated upon the issue of appointment of judges in the upper judiciary and ended up with the proposal for constitution of the National Judicial Appointments Commission as per the 99th Constitutional (Amendment) Act, 2015[8], which consisted of eminent designations from the executive and judicial branches of the government.

The '4-Judges Case' was noteworthy of the intense tussle of legislative, executive and judicial authorities of the country, where the four landmark cases alternately depicted the clash between the legislature and judiciary. However, in 2015 the 99th Constitutional (Amendment) Act, 2015[9] was also struck down and declared unconstitutional, which again upheld the spirits of judicial activism in India.

It is essential to maintain a clear balance by following court rules. The task of the legislature is to enact and alter laws. Legislators have a duty to close any gaps in the law, and the executive branch is responsible for carrying it out. Interpretation is the duty that the courts possess, which necessitates the 'Theory of Judicial Activism in India'.

  1. Kermit Roosevelt, 'Judicial Activism' (Britannica, 17 January 2018) <> accessed 04 September 2023.
  2. Constitution of India 1950, art. 13(1).
  3. Constitution of India 1950, art. 13(2).
  4. S.P. Gupta v Union of India [1981] Supp SCC 87.
  5. Supreme Court Advocates-on-Record Assn. v Union of India [1993] 4 SCC 441.
  6. Special Reference No. 1 of 1998, Re [1998] 7 SCC 739.
  7. Supreme Court Advocates-On-Record Assn. v Union of India [2015] 6 SCC 408.
  8. Ninety-Ninth Constitutional (Amendment) Act 2015.
  9. Ninety-Ninth Constitutional (Amendment) Act 2015.

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