A judiciary is an independent body that is evenhanded, unbiased, and
unprejudiced. It functions within the framework of the constitution, defined
under the concept of the separation of powers. It interprets the constitution
which is supreme and at times needed, supports the rule of law and the standards
laid down in the constitution. The Supreme Court of India is considered the
sentinel qui vie and protects the fundamental and constitutional rights of the
Judicial Activism means the rulings of the court based on political and personal
rational and prudence of the Judges presiding over the issue. It is a legal term
referring to court rulings based, in part or in full, on the political or
personal factors of the Judge, rather than current or existing legislation.
According to Black's Law Dictionary judicial activism is a philosophy of
judicial decision-making whereby judges allow their personal views about public
policy, among other factors, to guide their decisions.
The judicial activism was evolved through the process of judicial review which
can be pursued from the unwritten constitution of Britain during the period of
Stuart (1603-1688). In the year 1610, the power of Judicial Review was
acknowledged for the first time in Britain through the activism of Justice Coke.
The then Chief Justice Coke stated that if a law made by Parliament breached the
principles of common law; and ‘reason, then it could be reviewed and
adjudicated as void by the judiciary.
Judicial activism in India implies the authority of the Supreme Court and the high courts, but not the subordinate courts, to declare the regulations unconstitutional and void if they breach or if the legislation is incompatible with one or more of the constitutional clauses.
According to SP Sathe , a court giving a new meaning to the provision to suit
the changing social or economic conditions or expanding the horizons of the
rights of the individual is said to be an activist court.
The Supreme Court of India in its initial years was more a technocratic court
but slowly began to become more active through constitutional interpretation.
The court became an activist through its involvement and interpretation of law
and statutes but the whole transformation took years and it was a gradual
process. The origins of Judicial activism can be seen in the court's premature
and early assertion regarding the essence and nature of Judicial Review.
India's Judicial activism can be positive as well as negative:
- A court engaged in altering the power relations to make them more
equitable is said to be positively activist and
- A court using its ingenuity to maintain the status quo in power
relations is said to be negatively activist.
Judicial activism reflects the suggested patterns in the administrative namely:
expansion of hearing privileges over administrative lapses, extension of
judicial control over discretionary forces, expansion of judicial review over
the administration, and extending the conventional translation guidelines in its
quest for financial, cultural and academic goals.
Course of Judicial activism
After the independence, judicial activism was almost silent for the first
decade; the executive and legislative organs of the government actively
dominated and intervened in the working of the judiciary. It was in 70s the Apex
court started viewing the judicial and structural view of the constitution.
In the landmark Keshwananda Bharti case, just two years before the emergency
declaration the apex court of India declared that the executive had no right to
intercede and tamper the basic structure of the constitution. Though the
exigency imposed by the then Prime Minister Indira Gandhi could not be prevented
by the Judiciary, the concept of judicial activism started gaining more power
In I. C. Golaknath & Ors vs State Of Punjab & Anrs. the Supreme Court declared
that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by
the legislative assembly.
Landmark cases of Judicial Activism
In Hussainara Khatoon (I) v. State of Bihar, the inhuman and barbaric conditions
of the undertrial prisoners reflected through the articles published in the
newspaper. Many prisoners who were under trial had already served the maximum
persecution without being charged for the offense. A writ petition was filed by
an advocate under article 21 of the Indian Constitution. The apex court accepted
it and held that right to speedy trial is a fundamental right and directed the
state authorities to provide free legal facilities to the under-trial inmates so
that they could get justice, bail, or final release.
Another important case Sheela Barse v. State of Maharashtra, a letter written by
a Journalist was addressed to the Supreme Court avouching the custodial violence
of women prisoners in Jail. The court treated that letter as a writ petition and
took cognizance of that matter and issued the apposite guidelines to the
concerned authorities of the state.
In Sunil Batra v. Delhi Administration, the
court exercised its epistolary jurisdiction, and a letter written by a prisoner
was treated as a petition. The letter supposed that the head warden atrociously
inflicted pain and assaulted another prisoner. The Court stated that the
technicalities cannot stop the court from protecting the civil liberties of the
Some instances when the mechanism of Judicial Activism turned to the Judicial
overreach. The parliament of India has held responsible or accused the Judiciary
for intervening and overreaching its constitutional powers.
In the Supreme Court Advocates-on-Record Association v. Union of India, the
National Judicial Appointments Commission (NJAC) Act, and the constitutional
amendment was declared unconstitutional by the Apex court and the judgment was
delivered with the majority of 4:1. The act was declared unconstitutional as it
was violating the judicial independence. And the existing collegium system
pertaining to transfer and appointment of judges again came in the operation.
Justice Khehar said, the absolute independence of judiciary, from other organs
of governance, protects the rights of the people.
Lodha Committee report on the Board of Control for Cricket in India
The Supreme Court established the Lodha Panel amid accusations of Indian cricket corruption,
match-fixing, and betting controversies. In an effort to bring law and order
back into the BCCI, the committee was set up.
The committee recommended some points such as BCCI should come under RTI,
cricket betting should be made legal, and only the bodies that represent states
should have the voting rights while teams such as Railways and Services should
be given the status of associate members without any voting rights. But these
recommendations were treated as Judicial overreach as BCCI is an independent
body not controlled by any state or central govt. so the Lodha committee has no
authority to declare such recommendations.
In Christian Medical College, Vellore & Others versus Union of India and
The Supreme Court barred the states from conducting separate entrance exams for
medical courses and ruled that undergraduate admissions to medical courses can
only be done through the NEET.
The rulings of the Supreme Court on the National Eligibility-cum-Entrance Test (NEET),
i.e., the single exam for admission to medical colleges, the reformation of the
Board of Cricket Council in India (BCCI), the filing of the post of judge, etc
were regarded by the government to be the Judicial Intervention.
In Swaraj Abhiyan-(I) v. Union of India & Ors., the Apex court instructed
the Ministry of Agriculture of the Union of India to update and amend the
Drought Management Manual. he apex court also guided the state to constitute a
National Disaster Mitigation Fund within three months. On this, the then Finance
Minister Arun Jaitley said: We have the National Disaster Response Fund and the
State Disaster Response Fund and now we are being asked to create a third fund.
The appropriation bill is being passed. Now outside this Bill, we are being told
to create this fund. How will I do that? India's budget-making is being subject
to judicial review. Step by step, brick by brick, the edifice of India's
legislature is being destroyed. This was the response of the legislature on the
overreaching the constitutional powers by the judiciary.
The judiciary sometimes has tried to regulate itself and put some constraints on
its powers whenever it is required. The Supreme Court in Divisional Manager,
Aravali Golf Course v. Chander Haas observed that:
Judges must know their limits and must not try to run the Government. They must
have modesty and humility, and not behave like Emperors. There is broad
separation of powers under the Constitution and each organ of the State-the
legislature, the executive and the judiciary- must have respect for the others
and must not encroach into each other's domains.
Therefore, in a nutshell, I would like to say that the concept of judicial
activism has both positives and negatives. If the judiciary intervenes too much
in the working of other organs of the government and tries to overreach the
constitutional powers then this concept of judicial activism loses its
importance and essence. Sometimes in the name of activism, the judiciary often
rewrites personal views in the name of activism, power separation theory is
While judicial activism is deemed favorable in addition to the legislative's
failures, overreaching the domain of the other organs of the government is
regarded as an interference into the appropriate workings of democracy. Its
significance, however, lies in the institution's role as a place of hope for
The role of Judicial Activism cannot be negated or overlooked as it played a
significant role in providing justice to the underprivileged sections of the
society, indigent individuals, socially and educationally backward classes,
victims of trafficking and under trial prisoners. Proper implementation of
fundamental rights could only become possible due to the advancement of Judicial
There is a narrow demarcation between activism and overreach. Sometimes in the
process of judicial activism, the judiciary intervenes too much and reflects its
personal beliefs in the course of providing justice. The interpretation of law
which is the primary function of judiciary but the courts rather than
interpreting the law start making the law, issue guidelines and directions which
is to be done by the legislature.
Due to judicial overreach, conflict takes
place between the legislative and judiciary, and the legislative seems to be
inactive or less competent to the people. Besides this, the separation of powers
on which the democracy stands is killed by the judicial overreach.
An activist court is certainly far more efficient than a legal
positivist-conservative court to safeguard humanity from legislative and
executive tyranny. When the elected representatives fail to create a welfare
state then the role of judiciary becomes indispensable but the judiciary cannot
intervene in the state affairs just to show its supremacy.