JUDICIAL ACTIVISM IN INDIA
- Mythri Medam
[Link](HONS)
Damodaram Sanjivayya National Law University
The power of judiciary to assert and interpret the constitution and law to serve justice can be referred as
Judicial Activism. Judicial Activism is never defined precisely in any statute or constitution. Courts may have
stepped outside their boundaries sometimes, but only with an intention to serve greater justice to the society.
Definition
The word “Judicial Activism” is used for the first time in the article “The Supreme Court: 1947,” by Arthur
Schlesinger Jr. Judicial Activism can be defined simply as the active role of judiciary in promoting justice
which is tune with the temper and tempo of the pertaining situation.
Judicial Activism is defined by many scholars in their very own perspective.
As defined by the former Chief Justice of India A.M. Ahamadi ― “Judicial activism is a necessary adjunct
of the judicial function since the protection of public interest as opposed to private interest happens to be main
concern”.
Justice J.S. Verma explained judicial activism as an active process of implementing the rule of law which is
requisite for the preservation of a functional democracy. According to Justice Krishna Iyer, “every judge is an
activist either on the front gear or on the reverse”.
Whenever there is an indispensable situation causing the judiciary to intervene in the activities of legislature
or executive to call upon the concerned authorities to discharge the duties entrusted by the law, and giving
such directions is said as Judicial Activism. The true crux of the concept Judicial Activism is to provide greater
justice by considering the changes occurring in the society time to time.
Origin of Judicial Activism
The Supreme Court started being active since 1978 when it started focusing on the Rights of child labour,
bonded labour, under trail prisoners, and in certain situation where the backward classes were deprived of
their fundamental rights and through public interest litigation.
The power of judicial review to the judiciary in order to declare any action by the executive and legislature as
void if it is in contradiction with the constitution of India was stated in Article 13 when it is read with Article
32 and 226 of the constitution. Judicial review allows the judiciary to be active. It is pivotal provision which
deals with post-constitution laws and declares that if any such law violates the fundamental rights specified in
the constitution is Void-ab-initio.
While discussing judicial review which allows judicial activism, it is crucial to discuss the landmark
judgement in the Kesavanadha Bharathi v. Union of India, Supreme Court overruled the judgement given in
Golaknath case wherein SC held that parliament did not have the power to amend the fundamental rights under
part III of constitution of India, and declared that the basic structure of the constitution is absolute and
parliament didn’t hold any power to amend it and court also annulled the provision which denied the
possibility of judicial review in Constitution (25th Amendment) Act, 1971.
In 1983, a case of under trial prisoner sowed the seed of judicial activism, where the under trial is not able to
hire a lawyer. The main issue raised was whether the papers are enough to decide the case. Justice Mehmood
delivered the judgement expressing his disagreement to decide the case without spoken arguments and with
an extensive interpretation of the relevant law laid the footing for judicial activism in India.
Supreme Court and Constitution
Considering the case of bonded labour, In Bandhua Mukti Morcha v. Union of India through PIL the Supreme
Court has vindicated the PIL based on “wide areas in India’s population of illiteracy and poverty, of socio and
economic backwardness along with insufficient awareness and cherishing the individual rights and collective
rights”. Also, Supreme Court considered the same case under violation of fundamental right to education to
children, held that right to education is implied in and flows from the right to life which is guaranteed by the
Constitution of India under article 21.
According to the situations occurring in the current society, it is necessary that the judiciary play active role
in interpreting the laws according to the needs of the society whenever it is required. Judicial interpretation
along with judicial activism contributed to the present stature of Indian judiciary.
In Vishaka v. State of Rajasthan, SC held that “in the absence of enacted law to provide for the effective
enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse,
more particularly against sexual harassment at work places, we lay down the guidelines and norms specified
hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the
purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement
of the fundamental rights and it is further emphasized that this would be treated as the law declared by this
Court under Article 141 of the Constitution.” This led to issue of “Vishaka Guidelines” which resulted into a
proper legislation later.
Judiciary ordered the government to rehabilitate the children of prostitutes as it is not desirable for a child to
grow up in certain surroundings. It is considered that growing up in such surroundings will cause an adverse
effect in the lives of those children and declared that they are not allowed to live with their mothers. In Vishal
jeet v. Union of India, Supreme court directed the govt. to provide proper shelter and education to the rescued
children.
Supreme court instructed the central government to issue requisite guidelines regarding the protection of good
Samaritans who help the accident victims until a proper legislation was not made by the legislature due to the
PIL filed by a foundation. Later the judiciary gave the legal teeth to the guidelines and standard operating
procedures for examination of good Samaritans by the police department during the trial of those accident by
approving them. Public Interest Litigation made the judicial activism efficient in our country. It paved the way
for everyone who is in need to approach for judicial help. It has given a new dimension to Indian judiciary to
involve in public administration.
We can also look at the recent Supreme Court which criminalized sexual intercourse with own wife below 18
years and considered it as a rape. In effect to this, the protection which is enjoyed by the husbands under Sec.
375 exception 2 of IPC that husband can participate in sexual intercourse with minor wife who is not below
the age of 15 years is quashed.
Article 141 of Indian Constitution vested the power to declare any law in Supreme Court. And such law will
have the force of an authoritative precedent. Supreme court also possess the power to decide validity of any
law in current times and to interpret the law. This consequent development is called Judicial activism.
The Indian judiciary has thus played a more aggressive role in attempting to steer Indian society into a
democratic society, through the implementation of the new values and ideas in the constitution by means of
court judgements.
References
1. Justice Bhagawati PN., Enforcement of Fundamental rights – Role of the Courts, Indian Bar
Review,1997.
2. Ahamadi AM., Judicial Process: Social Legitimacy and Institutional Visibility 4 SCC (Jour), 1996.
3. S. P. Sathe, Judicial Activism: The Indian Experience, Washington University Journal of Law &
Policy.
4. Dr. Puneet Pathak, Acceptability of Judicial Activism in India Perspective, International Journal of
Law and Legal Jurisprudence Studies: ISSN:2348-8212: Volume 3 Issue 3.
5. Art. 13(1) of the Constitution of India.
6. Art. 13(2) of the Constitution of India.
7. Art. 141 of the Constitution of India
8. Art. 21 of Constitution of India.
9. Constitution (25th Amendment) Act, 1971.
10. Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011
11. Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802
12. Kesavanadha Bharathi v. Union of India, AIR 1973 SC 1461.
