The legislature, the executive, and the judiciary are three co-ordinate organs
of the state. All three are checked by our constitution. The elected candidates
as members of parliament representing the legislature, The ministers
representing the executive and the judges of the supreme court, high courts,
sessions courts, and various other courts representing the judiciary. All have
to take oaths prescribed by the Third Schedule of the Constitution of India.
of them affirm to bear true faith and obedience to the Constitution. Whenever it
is said that the custodian of our constitution. judiciary comes to mind but it
is nowhere implied that the legislature and the executive are not equal to guard
the constitution. For the progress of the nation, it Is necessary that all the
three arms of state function in complete consonance.
The courts of today are not passive. They interpret the Constitution to be in
favor of contemporary values and also use their power to correct a
constitutional injustice. Courts provide easier access to laws and protect
fundamentals rights. At times when the judiciary starts interfering with the
proper functioning of the legislative or executive organs of the government.
There is a very thin line that separates judicial activism and judicial
redundancy or overreach.
History of Judiciary Activism
As the famous sayings of Sir John Marshall
"It is unequivocally the province and
duty of the Judicial Department to say what the law is" It is from this concept
that judicial activism emanated and found expression through judgments of
various so-called "activist" judges. In India, the doctrine of judicial activism
was introduced in the mid-1970s. Justice V R Krishna Iyer, Justice P N Bhagwati,
Justice O Chinnappa Reddy and Justice D A Desai laid the foundations of
judicial activism in the country. The supreme court of India has started as an
activist court when traditions of British courts were followed but cautiously
started following the path of the activist court.
The first landmark case in
this regard is the A.K. Gopalan v. State of Madras (Gopalan case 1950) the
position of the writ was to establish that detention without trial under
(preventive detention act 1950) was not a violation of the fundamental right
under articles 14,19.21and 22 the decision held that this act held valid in the
eyes of law with the ratio of 4:2 judgment. The court validated government
action and noticed judicial restraints.
Furthermore, a major development was
observed in the case of Maneka Gandhi v. Union of India
(1978) Mrs. Maneka
Gandhi's passport was impounded. She challenged the action as it violated her
personal liberty. The court held that impounding a passport without any
legitimate reason is unconstitutional and it is a gross violation of the rules
of natural justice. This verdict of the apex court overruled the Gopalan case
and safeguard the validity of personal liberty under articles 19 and 21. This
judgment indicates a fine example of positive judicial activism.
The PIL Mechanism: The Golden age of Judicial Activism
Over recent decades the relationship between the executive and legislators
sometimes failed miserably in their duties toward the general public. The
executive and legislators are responsible because their imminence on a people
generates high expectations. The last step for common men is to approach the
judiciary to redress their grievances. Judicial activism has earned a
compassionate face with the liberalizing of access to justice and granting
relief to disadvantaged groups through Public Interest Litigation.
justice system the postal letter or even the postcard is accepted for the
purpose of initiating writs. the growth in PIL actions has increased since 1977
and is mainly ascribed to incidents that happened during emergency rule between
1975 and 1977. The Supreme Court in People's Union for Democratic Rights v.
Union of India
(1982) held that public interest litigation is different from
the traditional adversarial justice system.
The court said that public interest
litigation is intended to promote the public interest. Public interest
litigation has been invented to bring justice to poor and socially or
economically disadvantaged sections of society. The violations of constitutional
or legal rights of such a large number of persons should not go
unnoticed. Recently The Supreme Court of India has registered a public interest
litigation (PIL) petition to consider issues surrounding the reopening of courts
for physical hearing of cases based on a young girl's letter to CJI NV Ramana.
However, Thousands Of Frivolous PILs are being filed In the supreme court,
burdening the docket of both this Court and the High Courts.
Trespassing The Limits: Transformation From Activism To Overreach
In all the above cases judiciary acting as a guardian of the constitution called
upon the executive to perform its commitment to the laws. If the judiciary
oversteps they will be haphazard to the constitution while in the case of the
bail order, one Richa Bharti, who was arrested for writing an offensive post on
social media against Muslims, was given bail by judicial magistrate Manish Kumar
Singh in Jharkhand on the condition that she should distribute five copies of
the Quran to different libraries. Subsequently, this condition was withdrawn
The cognizance of judicial activism is based on the conscience of the judge. A
glaring instance of a recent statement of The Bombay High Court's judgment under
the POCSO act "it is not the case of the prosecution that the appellant
removed her top and pressed her breast. As such, there is no direct physical
contact i.e. skin to skin touch with sexual intent without penetration."
judgment crosses the limit of activism, the supreme court said that the aim of
law cannot be to allow offenders to escape justice. It is an absurd
interpretation that skin-to-skin touch is mandatory. The reasoning of the high
court has the reasoning of High Court insensitively trivialized, legitimized,
and normalized behavior which undermines the dignity of children," There must be
some thin line which can differentiate between activism and overreach.
I hope I've shown you the comprehensive image of judicial activism and its
component. Judicial power is potentially no more immune from vulnerability to
abuse than legislative or executive power but the difference is this: the abuse
of legislative or executive power can be policed by an independent judiciary but
there is no effective constitutional mechanism to judge the abuse of judicial
power. It is therefore crucial for all judges to remain vigilant alive to the
truth that is matched by the real depth of judicial responsibility
- AIR 1950 SC 27
- AIR 1978 SC 597
- 1982 AIR 1473, 1983 SCR (1) 456