JUDICIAL ACTIVISM IN INDIA

Injustice anywhere is a threat to justice everywhere.

Martin Luther King Jr.

Author: Devansh Singh, BALLB, IV Semester

Co-author: Aarya Mishra, BALLB, IV Semester

Abstract

The judiciary performs an active role to uphold constitutional values and ethics under the
constitutional scheme. The Supreme Court of India has emerged as the most vigorous organ of
State and amongst the foremost constitutional courts in the world through the instrument of
Public Interest Litigation (PIL), the exercise of writ jurisdiction and the expansive interpretation
of fundamental rights guaranteed by the Constitution of India. Judicial activism impinging on
every facet of governance has become the norm in recent times. This paper traces the evolution
of judicial activism since independence through pronouncements of the Supreme Court. The
paper illustrates through judgments of the Supreme Court that the instrument of the PIL and the
exercise of writ jurisdiction by the Supreme Court go beyond the traditional postulates of judicial
processes and also the scheme of judicial activism under the Indian Constitution.

KEYWORDS: Judicial activism , PIL, constitution

Methodology

The present study had adopted Doctrinal method of research

INTROUCTION
The powers of the State are generally characterized as the legislative power (i.e. making laws),
the executive power (i.e. enforcing laws) and the judicial power (i.e. adjudicating the disputes by
applying laws). Though the rigid separation of powers is impracticable, there should have
cooperation and coordination among the three branches. It is beyond doubt that the role of
judiciary transforms the conventional role into more active participatory role to cope with the
changing society. The judicial attempts for protecting the rights of the citizen properly and for
restraining constitutional transgressions by the others and sometimes, it suffices beyond the
traditional boundary by using judicial mind and judicial intellect and hence, it introduces judicial
activism. The modernist judicial approach of „judicial activism‟ holds its position with the aim
of ensuring just and proper justice to all. It is noted that, if judges should use this instrument
whimsically, it should be ascertained as judicial overreaching.

The goal of the Indian Constitution, articulated by our worthy founding fathers in its Preamble, is
to secure to the people of India “Justice — Social, Economic and Political; Liberty of Thought,
Expression, Belief, Faith and Worship; (and) Equality of Status and [of] Opportunity.” For
attaining this goal, the Constitution has created three state organs, the Legislature, the Executive
and the Judiciary, besides autonomous institutions such as the Election Commission, and the
Comptroller and Auditor-General. One must say Parliament and the State Legislatures have, by
and large, discharged their duty fairly satisfactorily; they have enacted many laws touching upon
and regulating activities in the social, economic, educational and health spheres — certainly all
activities touching the lives of the citizens, particularly the weak and vulnerable sections. It is,
however, common knowledge that the Executive has not come up to scratch, in a large measure,
to implement these laws in letter and in spirit. The result is that various laws and schemes in the
social and economic sectors have remained mere declarations of good intentions. A visit to any
government school, government hospital, a fair price shop or primary health center is sufficient
to bring home this platitude. In such circumstances, if a complaint is brought before court —
mainly the High Courts and the Supreme Court — that a particular law or provision or scheme is
not being implemented properly and a direction is asked for its implementation, what should it
do? Should the court say the matter is none of its concern, that the administrators know their duty
and are expected to do it, or call upon the authorities concerned to perform the functions
entrusted to them by the law? After all, the judiciary is also an organ of the state conferred by the
Constitution to achieve the goals set out in
the Preamble and Parts III and IV. But when such directions are made, it is called an instance of
‘judicial activism’ in a deprecatory sense.

DEFINITION

Black’s Law Dictionary which defines it as “judges allow their personal views about public
policy, among other factors, to guide their decisions.

Meaning and definition of judicial activism The term ‘Judicial Activism’ has been first devised
by Arthur Schlesinger Jr. in his article "The Supreme Court: 1947," published in Fortune
magazine in 1947. Judicial Activism has not been defined in any statute or by judiciary. In
simple words, it means indicating that function of the judiciary, which represents its active role
in promoting justice. Judicial activism, in general, is the assumption of an active role on the part
of judiciary. It has been defined by different scholars in different ways. Some of which are listed
below: According to Justice P.N.Bhagwati judicial activism is ― “The judge infuses life & blood
into the dry Skelton provided by legislature & creates a living organism appropriate & adequate
to meet the needs of the society. The Indian judiciary has adopted an activist goal oriented
approach in the matter of interpretation of fundamental rights. The judiciary has expanded the
frontiers of fundamental rights and the process rewritten in some part of the Constitution
through a variety of techniques of judicial activism. The Supreme Court of India has undergone
a radical change in the last few years and it is now increasingly identified by the justice as well
as people‘s last resort for the purpose bewildered

According to Justice J.S.Verma, Judicial Activism means “The active process of

HISTORY OF JUDICIAL ACTIVISM

The concept “judicial activism” is pronounced much more in the scholastic realm of legal and
political studies. Its root is founded intrinsically in the English concepts of “equity” and “natural
rights”. At the very beginning, the court declared void Virginia Statute for Establishing Religious
Freedom 1786 because it violated a 1783‟s peace treaty with Great Britain. The concept can be
traced back in USA to the case of Marbury v Madison, where Mr. Chief Justice Marshall laid
down the foundation of judicial activism besides judicial review. After that, in the modern era,
the Arthur Schlesinger introduced the term “Judicial Activism” to the public Schlesinger‟s
article to characterize several judges as activists.From the very beginning, the people of
Bangladesh have held the judicial authority in very high esteem. Before the liberation war, the
Constitution of Pakistan 1962 was silent regarding the matters of judicial review. But, this
concept was introduced through the judicial activism in the case of Jubendra Kisore v East
Pakistan and afterward in the case of Mustofa Ansari v Deputy Commissioner, the court struck
down a provision in the Chittagong Hill Tracts (Regulation) Rules 1960. After the independence
of Bangladesh, the first wind of judicial activism was felt in the case of A. T. Mridha v State
concerning the legality of detention under the Bangladesh Scheduled Offences (Special
Tribunals) Order 197212, where the Court pronounced that its constitutional supervisory power
could not be ousted by a sub-constitutional legislation. After that, there several cases have been
relating to the matter of fundamental rights decided on the basis of judicial activism.

RECENT LEGISLATION ENACTED THROUGH JUDICIAL ACTIVISM

Judicial activism has done a great service to society which can be inferred through following
decisions:
Sexual intercourse with own wife below 18 years: Rape

In Independent thought v. Union of India (11th october2017) [9] the Supreme Court
criminalized sexual intercourse by a husband with his wife who is below 18 years of age. It will
henceforth will be considered as rape. In effect, the Judgment has done away with the protection
that husbands enjoyed under Section 375 exception 2 of the Indian Penal Code that allows
husband to have sexual intercourse with a minor wife, provided that she is not below 15 years of
age.

Right to privacy – A fundamental right

In Justice K.S.Puttuswamy v. Union of India and others (24th august 2017) [10] the Supreme
Court has declared that the Right to Privacy is protected as a fundamental right under Articles
14, 19 and 21 of the Constitution.

Declaring instant triple talaq invalid

In Shayara Bano v. Union of India (22nd august 2017) [11] the Supreme Court has declared the
practice of “triple talaq” (talaq-e-biddat) as unconstitutional by 3:2 majority.

Passive Euthanasia – making of living wills

In Common Cause v. Union of India (9th march 2018) [12] the 5 constitutional bench while
recognizing passive euthanasia, the Supreme Court has allowed “advance directive or living
will”, by which patients can spell out whether treatment can be withdrawn if they fall terminally
ill or are incompetent to express their opinion.
Right to marriage – Fundamental Right

In Shakti Vahini v. Union of India and others (27th march 2018) [13] the Supreme Court held
that the consent of the family or community is not necessary once the two adult individuals agree
to enter into a wedlock. It is their fundamental right to marry of their own choice. NCMEI has
jurisdiction to grant minority status to institutions In Sisters of st. Joseph of cluny v. State of
west Bengal (18th April 2018) [14] the Supreme Court declared that National Commission for
Minority Educational institutions (NCMEI) has original jurisdiction to determine which
institution should be granted minority status.

CONSTITUTIONAL INTERPRETATION OF JUDICIAL ACTIVISM

There are some provisions in the Indian Constitution which directly or indirectly related to
Judicial Activism:

 Article 13: Power of “Judicial Review” and its effect thereof. The justifiability of
fundamental rights and the source of “Judicial Review” can be found under Art. 13
which are regarded as a key provision as it gives teeth to the fundamental rights cannot
be infringed by the state either by enacting a law to that effect or through an
administrative action. It declares that all pre-constitution laws shall be void to the extent
of their inconsistency with the fundamental rights 1 and expressly provides that the State
shall not make any law which takes away or abridges the fundamental rights and a law
contravening a fundamental right is, to the extent of such contravention is void 2.
Essentially, it is crucial provision dealing with the post-constitution laws and if any such
law violates any fundamental right, it becomes void-ab-initio. In effect, it makes the
constitutional courts of India, the sole guardian, protector, and the interpreter of the
fundamental rights. It is the function of these courts to access individual laws against the
fundamental rights to ensure that no such law infringes these rights.
 Article 32: Writ Jurisdiction of Supreme Court. This provision, for the want of better
purposive expression, is called as the right to constitutional remedies and confers
express powers on the Supreme Court to carry out the obligations declared under
Article13, that is, to act as a protector of fundamental rights. It constitutes one of the
1
Art. 13(1) of the Constitution of India.
2
Art. 13(2) of the Constitution of India.
 major constitutional safeguards against the state tyranny and can be said to confer ample
scope for judicial activism on Supreme Court which is evident from a catena of
pronouncements made by it while giving a contemporary meaning to the fundamental
rights and thereby creating new rights and obligations from time to time.
 Article 226: Writ Jurisdiction of High Court. This provision signifies an essential
aspect of Indian Constitution since it confers writ jurisdiction on high courts as well,
with a much wider scope as compared to what is enjoyed by the Supreme Court under
Articles 32. Consequently, it can possibly be understood in the sense of arming the
judiciary with enormous power to act in an activist manner.
 Article 131: Power to decide Inter-governmental disputes. Since Indian Constitution
sets up a federal polity where intergovernmental disputes often arise, Article 131 takes
care of such instances by providing a mechanism for settling such disputes quickly at
the highest judicial level. Under this provision, the Supreme Court has exclusive
original jurisdiction in any dispute between the center and the state, or the center and
state on one side and a state on the other side, or between two or more States. A dispute
to be justifiable under this article should involve a question of law or fact on which the
existence or extent of legal right depends. That is to say that the dispute must involve
assertion or vindication of a legal right of Government of India or a state. Questions of
political nature not involving any legal aspect are excluded from the Court‘s view 3.
Supreme Court‘s jurisdiction under this provision is limited by two fold fetters, that is,
as to the parties and as to the subject matter.
 Article 132: Constitutional Appellate Jurisdiction. The Supreme Court primarily being a
court of appeal enjoys extensive appellate jurisdiction in various jurisdictions. Under
this provision, an appeal lies to the Supreme Court from any judgment, decree or final
order, whether civil, criminal or other proceeding, of a high court of it certifies that the
case involves a substantial question of law as to the interpretation of the Constitution 4.
On obtaining such a certificate any party in the case may appeal to the Supreme Court
on the ground that any such question has been wrongly decided 5. However, only those

3
State of Bihar v. Union of India AIR 1970 SC 1446.
4
Art.132 (1) of the Constitution of India.
5
No such appeal shall be heard if the certificate is not granted by the High Court. Syedna Taher V. State of Bombay
AIR 1958 SC 83
 questions can be agitated for which the high court has granted leave 6unless permitted by
the Supreme Court7. A very broad power is thus conferred on the Supreme Court to hear
appeals in constitutional matters.
 Article 133: Civil Appellate Jurisdiction. Under this provision, an appeal lies to the
Supreme Court from any judgment, decree or final orders in a civil proceeding of a high
court if it certifies that the case involves a substantial question of law of general
importance and that in the opinion of the high court, the said question needs to be
decided by the Supreme Court.8
 Article 134: Criminal Appellate Jurisdiction. This provision regulates the criminal
appeals to the Supreme Court and is so designed as to permit only important criminal
cases to come before it. It confers a limited criminal jurisdiction on the Supreme
Court9as the court hears appeals only in exceptional criminal cases where justice
demands the intervention of the apex court.
 Article 136: Power to grant special leave to appeal. Over and above all the
constitutional provisions expressly declaring and regulating the power of the Supreme
Court in various capacities, this provision empowers the Supreme Court to grant, in its
discretion, special leave to appeal from any judgment, decree, determination, sentence
or order in any cause or matter passed or made by any court or tribunal in the territory of
India10. It however, excludes from its scope any judgment or order passed by a tribunal
functioning under a law relating to the Armed Forces. An outstanding feature of this
provision is that it empowers the Supreme Court to hear the appeals not only from
courts but also from tribunals in any cause or matter.
 Article 141: Authority to make final declaration of law. Under this provision, the
Supreme Court has the power to declare any law and the said declaration has the force
of an authoritative precedent, binding on all other courts in India, of course except the
Supreme Court itself. Such a final authority which the Supreme Court claims to possess
includes power to decide the validity of a law and to interpret it. Such a claim gives the
6
Darshan Singh V. State of Punjab AIR 1953 SC 83
7
Article 132(3)
8
Article 133(1)
9
Under Art. 134(2), the Parliament is authorized to enlarge the criminal appellate jurisdiction of the Supreme
Court. To this effect, it has enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970,
further authorizing the Supreme Court to hear appeals from High Courts
10
Article 136(1): This is however subject to Art.363
 court an unbridled discretionary power without any accountability whatsoever and the
consequent development is the judicial activism.
 Article 142: Power to do complete justice. The Supreme Court, in exercise of the power
conferred under this provision, is entitled to pass any decree, or make any orders, as is
necessary for doing complete justice in any cause or matter pending before it.

PUBLIC INTEREST LITIGATION

Though the theory of Public Interest Litigation (hereafter referred as “PIL”) is the result
of judicial activism, it raises up as efficient way of the higher judiciary to entertain
judicial activism. It was introduced in Bangladesh as an outcome of the case Kazi
Moklesur Rahman v. Bangladesh11 (hereafter referred as “Berubari Case”) in which the
concept of locus standi was raised and hereafter, the concept was finally settled in the
case Dr. Mohiuddin Farooque v. Bangladesh & others 12. Apparently, PIL indicates a
legal action for indemnifying common interest or for protecting from civic grievance in
which individuals have interest and by which their legal rights are infringed. 13 As PIL
allows any person without being actually aggrieved to activate the judicial method, it
should be considered as device by which public participate in judicial review of
administrative action.14 Even though the court can take PIL case on sou moto role and
can entertain its duties through judicial activism.15

CONCLUSION
Making balance among the State‟s branches is the precondition for maintaining
constitutionalism. Under the common law adversarial jurisprudence, the judges are
deemed as non-aligned adjudicator and they serve for promoting values and dignity. The
11
[1974] 26 DLR 44 (AD
12
[1997] 49 DLR 1(AD)
13
Stephen Holmes, „Precommitment and the Paradox of Democracy‟ in Douglas Greenberg (ed),
Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press 1993) 195-240
14
Awal Hossain Mollah, „Judicial Activism And Human Rights In Bangladesh: A Critique‟ (2014) 56 (6) International
Journal of Law and Management 475
15
State v Deputy Commissioner, Satkhira and Others [1993] 45 DLR 643 (HCD
judiciary should be a sui generis organ with judicial dispute resolving and political law
making functions and should work for the fulfillment of the statutory dents for
upholding public longing without overlapping the power of others. Factually, the
judicial activism has a very effective approach to almost every difficulty in the present
time, but it is never desirable dominion of the judiciary. Moreover, the exhaust of
constitutional principles of the separation of powers is not welcomed. Therefore, this
double-edged sword should be used with caution and discernment tactics.