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�legislature, executive
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',
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) and (2) of the Constitution of India which state
- 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
- 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.
four cases�SP Gupta v. Union of India, 1981, SCAORA v. Union of India,
1993, Special Reference No. 1 of 1998 and again SCAORA v. Union of India,
2015, 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, 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 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'.
- Kermit Roosevelt, 'Judicial Activism' (Britannica, 17 January 2018) <https://www.britannica.com/topic/judicial-activism> accessed 04 September 2023.
- Constitution of India 1950, art. 13(1).
- Constitution of India 1950, art. 13(2).
- S.P. Gupta v Union of India  Supp SCC 87.
- Supreme Court Advocates-on-Record Assn. v Union of India  4 SCC 441.
- Special Reference No. 1 of 1998, Re  7 SCC 739.
- Supreme Court Advocates-On-Record Assn. v Union of India  6 SCC 408.
- Ninety-Ninth Constitutional (Amendment) Act 2015.
- Ninety-Ninth Constitutional (Amendment) Act 2015.