The judiciary acts as a watchdog for our democracy. It is the guardian of the
Fundamental Rights. It is important for such an institution to be active in
securing the rights of the citizens with the changing society. It transforms to
a more active role by taking up cases involving fundamental right violation in a
suo moto action.
The main aim of judicial activism is to ensure justice and equality to all.
However, the judiciary must not take such decisions whimsically or interfere
with the functions of executive and legislature. This encroachment is termed as
". There are various instances where judicial activism took
the shape of judicial overreach and the judiciary overstepped its boundaries
which proved to be detrimental for the country. It is high time for courts to
regulate such activities and follow "judicial restraint".
An impartial, impartial, and independent judiciary is a body that functions
independently. It operates within the parameters of the constitution, which are
established by the idea of the separation of powers. It upholds the rule of law
and the norms outlined in the constitution, interprets the supreme and
occasionally necessary constitution.
The Indian Supreme Court is regarded as the sentinel who lives and defends the
people's basic and constitutional rights.Judicial activism refers to the
judiciary's proactive involvement in defending citizens' rights. Judicial
activism was first practiced and developed in the USA.
The Supreme Court and the High Courts of India have the authority to review the
constitutionality of any statute, and if they find it to be in conflict with the
constitution's provisions, they have the authority to declare it
unconstitutional. It must be highlighted that the inferior courts lack the
authority to examine the legality of laws. Judicial activism refers to court
decisions that are informed by the judges sitting over the case's political,
personal, and prudent judgement.
It is a phrase used in law to describe court decisions that are partially or
entirely influenced by the political or personal views of the judge rather than
existing or legislation Meaning Judicial activism is the term for the
judiciary's proactive role in defending the rights of citizens. Judicial
philosophy drives judges to reject established precedents in favour of
innovative and progressive social policies.
Judicial activism, according to Black's Law Dictionary, is a philosophy of
judicial decision-making in which judges permit their individual ideas on public
policy, among other things, to influence their judgements. Through the procedure
of judicial review, which can be applied to the unwritten constitution of
Britain during the Stuart era, judicial activism was developed (1603-1688).
Through the action of Justice Coke, the authority of Judicial Review was
accepted for the first time in Britain in 1610. According to the then-Chief
Justice Coke, if a statute passed by Parliament violated common law or "reason,"
the judiciary might evaluate it and declare it invalid.In India, judicial
activism means that the Supreme Court and the high courts, but not the lower
courts, have the power to declare laws invalid and unconstitutional if they
violate or are inconsistent with one or more constitutional provisions.
According to SP Sathe, a court is considered active if it interprets a provision
differently to reflect shifting social or economic circumstances or broadens the
scope of an individual's rights.In its early years, the Supreme Court of India
was more of a technical court, but it gradually started to become more active
through constitutional interpretation. Through its involvement and
interpretation of the law and legislation, the court evolved into an activist,
although the process took time and was gradual.
The court's early and rash claim regarding the purpose and character of judicial
review can be considered as the beginning of judicial activism.Origin:The
judicial review procedure in the United Kingdom gave rise to the doctrine of
judicial activism. An unwritten constitution that permits judicial activism is
the British Constitution. The unwritten constitution gave rise to the prospect
of judicial review under Stuart's rule (1603–1688), which gave rise to judicial
Justice Edward Coke introduced the judicial review paradigm in 1610. He decided
that any statute issued by parliament that is against common law or reason can
be reviewed and ruled illegal by the courts in the Thomas Bonham v. College
of Physicians case
(1610). Sir Edward Coke's successor as Chief Justice of
the Court of Common Pleas in 1615, Sir Henry Hobart, accepted this doctrine of
judicial review and, consequently, judicial activism.
In Madbury v. Madison (1803)
, the US Supreme Court explicitly declared
that some provisions of the Judiciary Act of 1801 were unconstitutional. This
was the first significant case involving the concept of judicial review. A court
invalidated a piece of legislation for the first time ever in American history.
Judicial review has become more common in the US ever since the Supreme Court
decided that federal courts have the power to strike down unconstitutional laws.
However, Arthur Schlesinger Jr. used the precise word "judicial activism" in his
article titled "The Supreme Court: 1947," which was published in the January
1947 issue of Fortune Magazine. He coined the phrase to group the American
Supreme Court justices at the time into three categories: judicial activists,
self-control advocates, and judges who fell somewhere in the middle.
With the landmark case of Brown v. Board of Education
(1954), in which
the US Supreme Court ruled unanimously (9-0) that racial segregation in public
schools violated the Fourteenth Amendment to the Constitution, which forbids
states from depriving anyone within their jurisdictions of equal protection
under the law, the American judiciary also used the power of judicial review to
usher in the era of judicial activism.
In addition, the Supreme Court secured such rights that were expressly stated in
the Constitution in the Plessy v. Fergusson
(1896) case, which saw it
repeal legislation that considered Black people as a separate class. The term
judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.The
foundation of Judicial Activism in India was laid down by Justice V.R Krishna
Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.
Judicial Outreach vs. Judicial Activism:
Judicial activism is defined as "a judicial philosophy which motivates judges to
stray from the customary precedents in favour of progressive and new social
policies" by Black's Law Dictionary. Judicial activism refers to court decisions
that are made based on the judges' political, personal, and prudent judgement,
as opposed to the law that is in effect at the time.
The distinction between judicial activism and overreach is quite fine. Simply
put, judicial overreach is the word used to describe when judicial activism goes
too far and turns into judicial adventurism.
- In India, judicial activism means that the Supreme Court and the high
courts, but not the lower courts, have the power to declare laws invalid and
unconstitutional if they violate or are inconsistent with one or more
- The four main Constitutional clauses, Articles 13, 32, 226 and 142, are
the ones that the Indian courts use to support their right to judicial
- The higher judiciary in India has the authority to declare any
legislative, executive, or administrative action void if it is in violation
of the Constitution under the provisions of Article 13 read with Articles 32
and 226 of the Indian Constitution.
- The Supreme Court derives broad authority from Article 142 to carry out
legislative and executive duties in order to achieve full justice. The
judicial system in India is governed by this provision.
- According to Article 13, all laws that violate or interfere with one or
more fundamental rights are unconstitutional. In other words, it expressly
makes room for the judicial review doctrine.
- According to Article 32 of the Indian Constitution, people have the
right to petition the Supreme Court for justice if they believe their rights
have been "unduly deprived." The Supreme Court's writ power is discussed in
- Every High Court is authorised by Article 226 to issue writs, orders, and
instructions to any individual or authority including the Government for the
enforcement of fundamental rights as well as other legal rights under its own
- According to Article 142, "the Supreme Court may pass such decree or
make such order in the exercise of its jurisdiction as is required for doing
complete justice in any cause or matter standing before it.
How Did Judicial Activism Form?
- Other aspects of government are ineffective, such as through delays,
non-responsiveness, red tape, and corruption.
- Due to causes like absenteeism, coalition politics, legislative apathy,
etc., the legislative branch has failed to pass laws on a number of current
- Increasing legal complexity against a backdrop of globalisation.
- Public interest litigations (PILs) are increasing as a result of public
awareness raising efforts, as well as the media's and civil society
organization's active participation.
Cases Of Judicial Activities:
- In the Maneka Gandhi v. Union of India case, the court determined that a
person's right to life and personal liberty can be violated by a law as long as
the process followed is reasonable, fair, and just. It has thus introduced the
American idiom "due process of law."
- Union Carbide Corporation vs Union of India: Supreme Court awarded the
compensation of $470 million to the victims. Post Union Carbide-Bhopal gas case,
government created legislations such as environmental Acts, air Act, water Act,
rules, regulations, etc.
- Vishakha vs State of Rajasthan: The court laid down guidelines for
protection of women from sexual harassment at workplace, popularly known as the
- Cleansing of the Taj Mahal: The marbles of the iconic place were yellowing
on account of Sulphur fumes from the surrounding industries. On account of the
court's efforts over a period of years, the heritage has been restored to its
- Hussainara Khatoon v. State of Bihar: Undertrials were suffering in jails for
greater periods than the maximum punishment which could have been inflicted on
them, as their very existence was forgotten by the criminal justice system. The
court directed the State to provide free legal facilities to the under trials so
that they could get bail or final release.
- Olga Tellis Vs Union of India case: The court said that the outlines of
Article 21 which provides right to life also include the Right to livelihood as
well as shelter. The Supreme Court ruled that it is the state's responsibility
to rehabilitate people instead of displacing them.
- Vineet Narain vs Union of India: The Su Type equation here.i preme Court
issued directions to the government in order to bring transparency and
accountability in the Central Bureau of Investigation (CBI).
Cases Of Judicial Outreach
- Case involving the allocation of coal blocks: In 2014, the SC revoked the
allocation of coal blocks that had been granted from 1993 onward and
assessed a fine of £295 per tonne of coal that had already been extracted
over the years. For the coal mining industry in India, this was a serious
- The Supreme Court issued an absolute ban on the sale of alcohol within
500 metres of all national and state highways across the nation in response to
petitions filed against allowing alcohol vendors to operate along national
- Drought management fund establishment: In the case of Swaraj Abhiyan v.
Union of India, the Supreme Court of India ordered the Union government to
establish a National Disaster Mitigation Fund within three months. Given that
the year's appropriations bill had already been passed and that the federal and
state disaster response funds already existed, this course of action created
- The court has virtually removed the constitutional prerogative of the
President of India to nominate judges based on its own rulings, known
collectively as the Three Judges Cases. Additionally, it ruled that the 99th
Constitutional Amendment and the National Judicial Appointments Commission (NJAC)
Act were unconstitutional because they violated judicial independence.
- Board for the Control of Cricket in India (BCCI) reform: The Supreme Court
established the Mudgal Committee and the Lodha Panel to look into the betting
allegations and make recommendations for BCCI reform (BCCI). Since the BCCI is a
private organisation, this is unexpected.
- Police reforms: In Prakash Singh v. Union of India, 2006, the Supreme Court
compelled States all over India to pass new legislation to regulate police
forces. The Court ordered the Central and State Governments to abide by a series
of seven directions outlining realistic steps to begin police
Considerableness Of Judicial Review:
- Complements legislative action: In some crucial areas, judicial
legislation can step in where there is a gap in the law. For instance, the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which
was created as a result of the Vishaka guidelines
- maintains the constitution By offering a broader definition to certain
important constitutional provisions, such article 21, it also aids in the
protection of the constitution's spirit
- Judicial review empowers courts to stop any measures that would
compromise the constitution, serving as a check and balance.
- People's trust in the justice system is improved through judicial
activism, which revitalises and modernises the judiciary through effective interventions.V.
Ensures sound governance: The judiciary is working to increase openness and
accountability in government through judicial activism
Judicial Review Comments:
- Undermines the people's will: Democracy's fundamental concept of majority
rule. The judiciary, in contrast, is an institution that is not elected.
When using its judicial review authority to find a piece of law illegal, the
court invalidates the popular will that was expressed in the election of the
legislature.iolates the balance of power The fundamental design of the
constitution includes the separation of powers. None of the republic's three
distinct organs may assume the duties delegated to the other. However, this
premise is broken when judges make laws.
- Judges are answerable to the Parliament, which is answerable to
the people, according to the executive. However, unlike MPs, judges are not
chosen by the general public, which lessens their feeling of accountability.
- Decision-making competence: Judges who issue laws may not have the
necessary knowledge. Instead of using factual information or studies to
support their conclusions, they frequently rely on their own personal
viewpoints and beliefs.
- Has an impact on how the executive functions: The executive functions on
the basis of the 4F, i.e. Framework, function, fund, and functionary. The
executive could be negatively impacted by judicial overreach. For instance,
the court disregarded substantial concerns about the states' excise tax
income and possibility for widespread unemployment when it ordered the
prohibition of alcohol along highways.
- Promotes bad governance: Court activism encourages legislative
inefficiency since the legislature may leave uncomfortable decisions for the
courts to decide. Additionally, frequent court interventions might erode
public confidence in the elected administration.
The Indian judiciary has been actively involved in society through PILs and
other forms of activism. Due to this, the rights of underprivileged groups in
society have been restored. TheSupreme Court and the High Courts have supported
progressive social programmes, and the public has high regard for the judicial
system as a whole. However, it is crucial to sustain the separation of powers
principle and the authority of the three branches of government in a democracy.
Onlywhen the executive and legislature are alert and effective is it
conceivable. The Judiciary should exercise caution when entering areas of
responsibility that are outside of its purview. Through PILs and other types of
activism, the Indian court has taken an active role in society. The rights of
socially marginalised people have been reinstated as a result.
The people has high regard for the legal system as a whole and the Supreme Court
and High Courts have backed progressive social programmer. IN a democracy, it is
essential to uphold the idea of the separation of powers and the legitimacy of
the three branches of government. It is only conceivable when the government and
legislature are vigilant and effective. When assuming responsibilities outside
of its scope, the judiciary should proceed with caution.
- Rahul - (BB.A.LL.B) 7th SEM, Geeta Institute of Law
- Ritik - (BB.A.LL.B) 7th SEM, Geeta Institute of Law