JUDICAL ACTIVISM

MEANING

1. Judicial activism means that instead of judicial restraint, the Supreme Court and other lower
courts become activists and compel the authority to act and sometimes also direct the
government and government policies and also administration. Judicial activism refers to the
interference of the judiciary in the legislative and executive fields. According to justice J.S.
Verma of the Supreme Court, “ The role of the judiciary in interpreting existing laws
according to the needs of the judiciary in interpreting existing laws according to the needs of
the times and filling, in the gaps appears to be the true meaning of judicial activism”. Judicial
activism is , in fact, an essential part of judicial review. It is a way through which justice is
provided to the disadvantaged and aggrieved citizens.

2. As per doctrine of separation of power, the Constitution of India divides the powers to the
government into three branches i.e. legislature, executive and judiciary. It is when the
judiciary steps into the shoes of the executive and the legislature and embarks on the work
of law making rather than interpreting laws, it is deemed to be judicial activism. Judicial
activism refers to a philosophy of judicial decision-making whereby judges allow their
personal views about public policy, among other factors, to guide their decisions.

Judicial activism simply means a pro-active judiciary which does no limit itself to the
interpretation of law. Judicial activism is the term used to describe the actions of judges who go
beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and
‘legislate’ from the bench. These judges creates new constitutional rights, amend existing one, or
create or amend existing legislations to fit their own notions of societal needs. Judicial
activism relies on the idea that the judges undertake the character of an independent policy makers
or independent trustees or representatives on behalf of the entire society, and they are further
inclined to go beyond their traditional role as interpreters of the Constitution and laws. This notion
of judicial activism stands in contrast to judicial restraints.

In India, there are two major aspects of Judicial Activism. The first comes in the form of PIL where
various directions issued by the courts to the government authorities protecting the rights of the
citizen, for example; cases like Agra Protection Home case and Bihar undertrail case etc. The
second aspect is in the field of Interpretation of Fundamental Rights, particularly the right to
equality (article14), right to freedom (article 19), and the right to Life and personal liberty(article
21). For example, in KeshavanandBharti case, 1973, the Supreme Court formulated the doctrine
of ‘Basic Structure’ which restricts the power of Parliament to amend certain features of
Constitution.

ORIGIN
The term 'Judicial activism' was coined for the first time by Arthur Schlesinger Jr in his article
'The Supreme Court : 1947', published in Fortune magazine in 1947. Though the history of judicial
activism dates back to 1803 when the concept of judicial review was evolved by Chief Justice
 Marshall in celebrated case of Marbury vs Madison. The emergence of judicial review gave birth
to a new movement which is known as judicial activism.
Unlike American Constitution, Indian Constitution
itself provides scope or space for emergence of judicial activism by virtue of Articles 13, 32, 226,
141 and 142. Article 13 conferred wide power of judicial review to the Apex Court. Article 32 and
Article 226 makes the Supreme Court and High Court respectively as the protector and guarantor
of the Fundamental Rights. Article 141 indicates that the power of the Supreme Court is to declare
the law and not enact it, but in the course of its function to interpret the law, it alters the law.
Article 142 enables the Supreme Court in exercise of its jurisdiction to pass such order or make
such order as is necessary for doing complete justice in any cause or matter pending before it.
The term judicial activism was explained and
recognised by the Supreme Court in Golaknath's case wherein the court laid down the judicial
principle of prospective overruling by giving wider beneficial interpretation of Article 13 of the
Constitution. But in real sense, the history of judicial activism in India began in late seventies with
the introduction of Public Interest Litigation (PIL). The concept of PIL in India was started by
justice Krishna Iyer and Justice PN Bhagwati. The term 'Public Interest Litigation' means any
litigation conducted for the benefit of public or for removal of some public ' grievance. In simple
words, it means any public-spirited citizen can move the court for the public cause by filing a
petition in the Supreme Court. The concept of PIL is in consonance with the principles enshrined
in Article 39A of the Constitution of India to protect and deliver prompt social justice with the
help of law. Justice Bhagwati in SP Gupta vs Union of India case 1981 (judges transfer case) firmly
established the validity of the Public Interest Litigation.
The famous case of judicial Activism in India is the
majority judgement in the Keshavananda Bharati case (the Fundamental Rights case). Further the
case of National Human Rights Commission vs State of Arunachal Pradesh, 2G Spectrum case
2012 are important of judicial activism. If we look at the decision given by the Supreme Court in
several PIL, it is evident that most of the PIL extends to environmental pollution, convicted
prisoners under trials, personal liberty, corruption etc. The court has given several important
directions to the executive as well as to the legislature at the instance of the PIL. That the PIL
strategy is a status-quo approach of the court to avoid any change in the system. Another criticism
is that judicial activism is coming in between the concept of separation of power. It is also believed
that the PIL will further aggravate the issue of pending cases in the court. According to another
view, the misuse of PIL has reached ridiculous stage and petitions are filed over petty issues like
student-teacher strike, shortage of buses, painting of road signs and so on. Judicial activism in
India, in its truest sense, dates back to the commencement of the Constitution. Hence, the study of
judicial activism in India from the historical perspective is confined from the period-1950 to 1977,
the period of 1978 onwards being the post-emergency era or the present perspective.

Pros of Judicial Activism

1. It provides a system of checks and balances to the other government branches. Judicial Activism
provides judges to use their personal wisdom in cases where the law failed to provide a balance.
2. Judicial Activism also provides insights into the issues. The reason why this is a good thing is
that it shows the instilled trust placed in the justice system and its judgments.
3. Many a time public power harms the people, so it becomes necessary for the judiciary to check
misuse of public power.
4. It provides speedy solutions where the legislature gets stuck in the issue of majority.
5. Through Judicial activism judiciary is trying to promote more transparency and accountability
in governance.

Cons of Judicial Activism

 Judges can override any existing law. Hence, it clearly violates the line drawn by the
constitution.
 The judicial opinions of the judges become standards for ruling other cases.
 Judgment may be influenced by personal or selfish motives. Which can further harm the public
at large.
 Repeated interference of courts can erode the faith of the people in the quality, integrity and
efficiency of governmental institutions.
 Courts limit the functioning of government, when it exceeds its power and to stop any abuse or
misuse of power by government agencies.
 Sometimes Judicial activism led to judicial overreach and judicial adventurism.
 Incidences of judicial overreach has a negative impact upon the constitutional core i.e.
separation of power.
 Judicial overreach may have a negative impact upon the morale of the executive because the
executive’s function of policy making and policy implementation are more challenging and
depends upon the 4F i.e. fund, function, framework and functionary.
 Because the judicial overreach, sometimes the coordination between the executive and judiciary
get affected which has a negative impact upon the constitutional framework.
 Secondly, they have interfered in the area where they had no knowledge and expertise.
 Thirdly, critics also argue that courts are already over-burdened, and PILs would lead to judicial
delays

What makes the judiciary to step-in?

1. When the legislature fails to make the necessary legislation to suit the changing times and
governmental agencies fail miserably to perform their administrative functions sincerely, it leads
to an erosion of the confidence of the citizens in the constitutional values and democracy. In
such a scenario, the judiciary steps into the areas usually earmarked for the legislature and
executive and the result is the judicial legislation and a government by judiciary.
2. In case the fundamental rights of the people are trampled by the government or any other third
party, the judges may take upon themselves the task of aiding the ameliorating conditions of the
citizens.
3. The greatest asset and the strongest weapon in the armoury of the judiciary is the confidence it
commands and the faith it inspires in the minds of the people in its capacity to do even-handed
justice and keep; the scales in balance in any dispute
4. The causes which gives rise to judicial activism includes expansion of rights of hearing in the
administrative process, excessive delegation without limitation, expansion of judicial review
over administration, promotion of open government, indiscriminate exercise of contempt power,
exercise of jurisdiction when non-exist, over extending the standard rules of interpretation in its
search to achieve economic, social and educational objectives and passing of orders which are
unworkable.
5. Judicial activism has risen mainly due to the failure of the executive and legislatures to act.
Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive
have failed to deliver the goods.Thirdly, it occurs because the entire system has been plagued
by ineffectiveness and inactiveness. The violation of basic human rights has 1.0 also led to
judicial activism. Finally, due to the misuse and abuse of some of the provisions of the
Constitution, judicial activism has gained significance.

Examples where the judges may have encroached upon the legislature:

1. Arun Gopal v. Union of India (2017): the Supreme Court fixed timings for bursting Diwali
fireworks and prohibited the use of non-green fireworks, although there are no laws to that
effect.
2. M.C. Mehta v. Union of India (2018): the court annulled the statutory Rule 115(21) of the
Central Motor Vehicle Rules, 1989, when it directed that no BS-4 vehicle should be sold after
March 30, 2020, and that only BS-6 vehicles can be sold after that date.
3. Subhash Kashinath Mahajan v. State of Maharashtra (2018): the court amended the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling
Section 18 which said that no anticipatory bail will be granted to persons accused under the Act;
by requiring a preliminary enquiry; and by prohibiting arrest under the Act except with
permission in writing by the appropriate authority.
4. Rajesh Sharma v. The State of Uttar Pradesh (2017): the court felt that Section 498A of the
Indian Penal Code was being misused. So it amended that Section by requiring complaints under
that provision to be sent to a Family Welfare Committee constituted by the District Legal
Services Authority, although there is no such requirement in Section 498A.
5. National Green Tribunal (NGT): ordered that no 15-year-old petrol-driven or 10-year-old
diesel-driven vehicle will ply in Delhi, and the Supreme Court has directed impounding such
vehicles, though neither the NGT nor the Supreme Court are legislative bodies.

Way Forward

 Judicial activism is not backed by the Constitution; it is a product devised solely by the
judiciaries. When the judiciary steps over the line of the powers given to it, in the name of
judicial activism, one can say that the judiciary then begins to nullify the concept of separation
of powers specified in the Constitution.
 If judges are free to make laws of their choices, not only would that go against the principle of
separation of powers, it could also lead to uncertainty in the law and chaos as every judge will
start drafting his own laws according to his whims and fancies.
 Judicial discipline has to be observed to maintain a clear balance.
 Making laws is the function of the legislature. It is the duty of the legislature to fill the gap of
laws and it is the duty of executive to implement it in a proper manner. So that only the
 interpretation remains as a work for the judiciary. Only the fine equilibrium between these
organs of Government can sustain the constitutional values.

Status quo and Criticism of Judicial Activism in India

1. The Judicial activism in India is working very well and it has been improving the condition
of the governance. The progress of the society is dependent more upon the proper
implementation of law to fulfil the need of the people, and since the society has much
awareness of its rights and obligations than ever before, the judiciary has to mould and
shape the law to deal with such rights and obligations. The mere existence of legislation
cannot solve the problems of society at large unless the judges interpret and apply the law
to ensure its benefit to the right quarters.
2. However, the activist nature of the judiciary is often subjected to criticism. It is argued that
the judiciary has usurped the role of the legislature and the executive. Secondly, they have
interfered in the area where they had no knowledge and expertise. Thirdly, critics also
argue that courts are already over-burdened, and PILs would lead to judicial delays.

CONCLUSION

Judicial activism has been a very useful tool in Indian democracy and it has improved the quality
of our governance and has brought reforms in the governance of the country. The only thing the
judiciary must keep in mind is that not to overstep the limitations prescribed in the Indian
Constitution. In the grab of Judicial Activism, sometimes the judiciary encroach upon the affairs
of other two branches of government, particularly executive, in policy formulation which, in turns,
becomes in conflict with them, and thereby, ultimately leading to debate of Judicial Activism
verses Judicial overreach In view of allegation and to prevent 'judicial activism' being converted
into `judicial overreach', the Supreme Court issued the following directions

1. The court must encourage genuine and bonafide PIL and effectively discourage and curb
the PIL filed for extraneous considerations.
2. The court should prima facie verify the credentials of the petitioner before entertaining a
PIL.The court should be fully satisfied that substantial public interest is involved before
entertaining the petition.