essay on judicial activism in india

Essay on Judicial Activism in India

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100 Words Essay on Judicial Activism in India

Introduction.

Judicial Activism refers to the proactive role played by the judiciary in promoting justice. In India, it has become a significant part of the legal system.

The term Judicial Activism originated in the United States. In India, it emerged in the late 1970s and has been instrumental in protecting the rights of citizens.

Role in India

In India, Judicial Activism has played a key role in addressing social issues. It has helped in enforcing the rights of the marginalized and ensuring environmental protection.

Judicial Activism in India has been a powerful tool for justice. It is a testament to the judiciary’s commitment to uphold the rights of citizens.

250 Words Essay on Judicial Activism in India

Judicial activism in India refers to the proactive approach of the judiciary in safeguarding the rights of citizens and promoting justice. It is the use of judicial power to articulate and enforce what is beneficial for society at large.

The Emergence of Judicial Activism

The emergence of judicial activism in India can be traced back to the 1970s, a period marked by gross human rights violations during the Emergency. The judiciary, recognising its responsibility, began to interpret laws and constitutional provisions in a manner that enhanced its powers, thereby ensuring the protection of citizens’ rights.

The Role of Public Interest Litigation

Public Interest Litigation (PIL) has been a significant instrument of judicial activism in India. PIL has transformed the judiciary from a passive institution to a proactive one, reaching out to the disadvantaged and marginalised sections of society. It has also enabled the judiciary to take suo-moto cognizance of issues.

Impact and Criticism

Judicial activism has led to landmark judgments that have significantly impacted Indian society and governance. However, it has also faced criticism for overstepping its constitutional mandate, leading to a debate over the separation of powers.

While judicial activism has been a powerful tool for social change in India, it’s crucial to strike a balance between judicial activism and judicial restraint. This ensures that the judiciary does not encroach upon the domains of the legislative and executive branches, preserving the delicate balance of power enshrined in the Constitution.

500 Words Essay on Judicial Activism in India

Introduction to judicial activism in india.

Judicial activism in India refers to the proactive role played by the judiciary in promoting justice, upholding the rule of law, and protecting the rights of citizens. It is a dynamic process that has evolved over time, reflecting the judiciary’s response to societal needs and changing circumstances.

The Genesis of Judicial Activism

The roots of judicial activism in India can be traced back to the post-independence era. The Indian Constitution, framed in 1950, laid the foundation for an independent judiciary. However, the concept of judicial activism became prominent in the 1980s, when the Supreme Court started interpreting the Constitution in a more liberal and expansive manner. This was done to ensure the realization of fundamental rights, especially for the marginalized sections of society.

Landmark Cases Signifying Judicial Activism

Several landmark judgments signify the rise of judicial activism in India. The case of Kesavananda Bharati vs. State of Kerala (1973) established the doctrine of the ‘basic structure’ of the Constitution, which cannot be altered by the Parliament. This case marked a significant shift towards judicial activism, ensuring the preservation of the fundamental essence of the Constitution.

Another significant case was the Maneka Gandhi vs Union of India (1978), where the Supreme Court expanded the scope of the right to life and personal liberty under Article 21. This case set the precedent for a series of judgments that interpreted Article 21 to include a wide array of rights, reflecting the judiciary’s proactive role.

Public Interest Litigation (PIL) has been a significant tool for promoting judicial activism in India. Introduced in the late 1970s, PILs have democratized access to justice, allowing any individual or organization to file a case on behalf of those who are unable to do so. This has led to several landmark judgments that have significantly impacted social justice and governance.

Critiques of Judicial Activism

While judicial activism has played a crucial role in upholding justice and rights, it has also faced criticism. Critics argue that the judiciary, by overstepping its constitutional mandate, infringes upon the domains of the legislative and executive branches, leading to a distortion of the balance of power. This raises concerns about judicial overreach and the potential for the judiciary to become an unchecked power center.

Conclusion: The Way Forward

Judicial activism in India has undeniably played a vital role in shaping the legal and social landscape. It has been instrumental in upholding constitutional values and promoting social justice. However, it is equally essential to maintain the delicate balance of power among the three branches of government. Striking this balance, while continuing to protect the rights of citizens, is the ongoing challenge and the way forward for judicial activism in India.

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Judicial Activism [Meaning, Concept, Cases & Criticism] - Indian Polity Notes

Judicial activism is a concept that originated in the US in 1947. It has been seen in India since the Emergency days. Judiciary and judicial activism are important topics to be understood by the aspirants for IAS Exam . The article will introduce you to judicial activism, its methods, significance and pros and cons.

Judicial Activism – Know What It Means

The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. This entails, sometimes overstepping into the territories of the executive. Candidates should know the judicial overreach is an aggravated version of judicial activism.

Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N Bhagwati.

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.

Judicial Activism – Indian Polity:- Download PDF Here

Judicial Activism Methods

There are various methods of judicial activism that are followed in India. They are:

Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is an interest of large public involved; the aggrieved party does not file the petition).
Constitutional interpretation
Access of international statute for ensuring constitutional rights
Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution.
There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973.

In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.
Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process of allocation was flawed.
The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
The SC invoked terror laws against alleged money launderer Hasan Ali Khan.

Aspirants should read about landmark cases related to the basic structure of the constitution , in the linked article.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being carried out.

Pros associated with Judicial Activism India

Judicial Activism sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
It places trust in judges and provides insights into the issues. The oath of bringing justice to the country by the judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits. Thus, showing the instilled trust placed in the justice system and its judgments.
Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents.
In the issue of majority, it helps address problems hastily where the legislature gets stuck in taking decisions.

Cons Associated with Judicial Activism

Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way, it limits the functioning of the government.
It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law.
The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives.
Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory of separation of powers between the three arms of the State goes for a toss with judicial activism. Many times, the judiciary, in the name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about.

Also read: PIL Under Scrutiny: RSTV – The Big Picture

Judicial Activism VS Judicial Restraint

As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and constitutional rights of the citizens. Judiciary exercises its own power to implement or strike down the laws and rules that infringes the right of the citizens or is for the good of the society at large, whatever the case may be.

While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite of activism which puts obligations on it to follow constitutional laws while implementing its duties. It encourages the judiciary to respect the laws or rules set out in the constitution.

Judiciary has gained power with judicial activism as the judges can take up issue suo-motu wherever they think that constitutional laws are being violated. However, with judicial restraint, the same judiciary has to abide by the executive who is given the sole power to legislate for the public.

Why is Judicial Activism needed?

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.
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.
The greatest asset and the strongest weapon in the armory 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.

Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.

If judges can freely decide and make laws of their choices, it would not only go against the principle of separation of powers but will result in chaos and uncertainty in the law as every judge will start writing his own laws according to his fads and quirks.

Judicial exercise has to be respected to maintain a clear balance.

Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values.

Kickstart your UPSC 2024 Preparation with these notes and keep on revising for UPSC Prelims.

UPSC Questions related to Judicial Activism

What is an example of judicial activism.

An example of judicial activism is the famous Kesavananda Bharati case.

What is the difference between judicial activism and judicial restraint?

Both are opposing concepts. While judicial activism talks about courts taking on a proactive role in ensuring and protecting citizens’ rights , judicial restraint encourages the judiciary to limit the exercise of their own power.

Is judicial activism good?

Judicial activism can be good if the intention of the court is to protect and preserve the rights of citizens, and not merely criticise the government.

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Judicial activism

This article has been written by Naveen Talawar , a law student at Karnataka State Law University’s law school. The article is an insight into judicial activism, its background, and its evolution in India.

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

Lord Hewart, CJ, who is famous for saying, “ It is fundamentally important that justice not only be done but also be clearly and undeniably seen to be done, ” gave rise to the concept of judicial activism, which manifested itself in the decisions of numerous so-called “activist” judges. They have been held accountable for bringing justice to the doorsteps of the citizens, even if it means taking unwarranted and unnecessary measures. By stretching the letter of the law a little and acting according to the spirit behind it, the judiciary has intervened in cases where there is a blatant misuse of executive discretion or an unconcerned attitude toward booking the corrupt and other anti-social elements in society.

Under the Indian Constitution , the State has the primary responsibility for ensuring the country’s justice, liberty, equality, and fraternity. The State is obligated to protect the fundamental rights of individuals and to implement the Directive Principles of State Policy . To prevent the state from evading its responsibilities, the Indian Constitution has granted the Court’s inherent powers to review the state’s actions. In this context, the Indian judiciary has been regarded as the protector and guardian of the Indian Constitution.

Following its constitutional obligation, the Indian judiciary has actively defended individuals’ fundamental rights whenever necessary from the state’s unjust, unreasonable, and unfair actions or inactions. By upholding human rights, the judiciary has come a long way in terms of judicial activism, from defending the rights of women in the workplace to implementing the fundamental principles of sustainable development. The judiciary has approached every aspect of human life and proven to be an advantage for the poor by shifting from the “Locus Standi” principle to Public Interest Litigation (PIL).

Origin and development of judicial activism

The theory of judicial activism emerged during the judicial review process in the United Kingdom. The British Constitution is an example of an unwritten constitution that allows for judicial activism. During Stuart’s reign (1603-1688), the unwritten constitution created the possibility of judicial review, and thus judicial activism was born.

The judicial review principle was established in 1610 by Justice Edward Coke. In the Thomas Bonham v. College of Physicians case (1610) , he made the decision that any law passed by parliament that is against common law or reason can be reviewed and declared void by the courts. This theory of judicial review and, correspondingly, judicial activism was supported by Sir Henry Hobart, who succeeded Sir Edward Coke as Chief Justice of the Court of Common Pleas in 1615.

The first significant case involving the idea of judicial review was Madbury v. Madison (1803) , in which the US Supreme Court explicitly declared certain provisions of the Judiciary Act of 1801 unconstitutional. For the first time in American history, a court declared a piece of legislation to be unconstitutional. Since the Supreme Court ruled that federal courts have the authority to invalidate unconstitutional laws, judicial review has gained popularity in the United States.

However, the exact phrase “judicial activism” was used by Arthur Schlesinger Jr. in his article “ The Supreme Court: 1947 ,” which appeared in the January 1947 issue of Fortune Magazine. He used the phrase to categorise the American Supreme Court judges at that time as judicial activists, champions of self-restraint, and judges positioned in between the two sections.

Further, the American judiciary used the power of judicial review to usher in the era of judicial activism in 1954, with the landmark case of Brown v. Board of Education (1954) , where 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 . Furthermore, the Supreme Court in the case of Plessy v. Fergusson (1896) not only abolished laws that treated Black people as a separate class but also guaranteed such rights that were clearly provided for in the Constitution.

The term “judicial activism” was later used on numerous occasions, but the first time a judge used it in a court was in the case of Theriot v. Mercer in 1959. In a related case, Judge Joseph C. Hutcheson used it to oppose a dissenting judgement. He was opposed to judicial activism and the outcomes it sought. The usage also made reference to the shift in connotation that took place in the middle of the 1950s. Some judges viewed the term “judicial activism” as an encroachment.

Furthermore, the ability to engage in judicial activism became a requirement for the existence of an independent judiciary in nations that upheld the rule of law, and other modern democracies quickly followed, giving rise to the concept of judicial activism.

What is judicial activism

The concept of “judicial activism” is opposed to the idea of “judicial restraint.” Both of these terms are frequently used to describe the assertiveness of judicial power, and they are also used from the perspectives of personal and professional views, putting the courts in a position to lean towards one of the views to play the appropriate role. The terms “judicial activism,” “judicial supremacy,” “judicial absolutism,” “judicial anarchy,” and others are frequently used interchangeably in the United States. The term “judicial activism” is also regarded as ascriptive. This implies that the judges’ performance is based on their ideologies, opinions, values, and interests.

The scope of judicial activism is so broad that no precise definition exists. It does not have a statutory definition because each jurist or scholar defines it differently. Supporters of judicial activism claim it to be a proper form of judicial review. In contrast, Thomas Jefferson refers to it as the ‘despotic power’ of Federal Judges. According to V.D. Kulshrestha, judicial activism occurs when the judiciary is charged with actually participating in the law-making process and subsequently emerges as a significant player in the legal system.

In contemporary definite terms, judicial activism is frequently seen as a way to correct executive faults by using democratic power within the limits of the Constitution. It is said that judicial activism empowers judges to act as individual policymakers and independent trustees on behalf of the citizens of the country, in addition to their traditional role. In general, judicial activism refers to the judiciary’s proactive role in correcting errors made by the executive or legislative branches to ensure the efficient coordination of all three crucial pillars.

The discussion above clearly demonstrates that the term “judicial activism” refers to a broader concept. The meaning of the phrase is ambiguous. It is impossible to combine all of it into one concise definition. There are numerous ways to define and comprehend judicial activism. Judges of the Supreme Court and High Courts have rendered several contentious rulings over the past few years that have sparked heated debate. However, it is still unclear exactly what is meant by the term “judicial activism.”

Evolution of judicial activism in India

In the early years after independence, India’s courts were technocratic in nature. Although the goal of justice did not always coincide with this fundamental aspect of how courts functioned, the judiciary was more concerned with following the procedures that were expected of it. To put it another way, the majority of judges at the time were not as creative and did not bother to look for ways to carry out the goal of justice for which they held their positions. Some judges in the British Empire and a newly independent India went out of their way to issue decisions that are now regarded as foundational examples of judicial activism.

The beginning of judicial activism can be traced back to 1893 when Justice Mehmood of the Allahabad High Court issued a dissenting decision that sowed the seeds of activism in India. The case involved an undertrial who couldn’t afford legal representation. In his dissenting opinion, he criticised the rule that appeals should be dismissed solely on the basis that the appellant is unable to pay for the translation and printing of the record in English. This amounted to some form of activism meant to defend the severely harmed undertrials. Although it didn’t sit well with the English judges on the bench, J. Mahmood was forced to resign for using these tactics in court.

Furthermore, the concept of judicial activism in India gained more traction in the late 1960s or early 1970s, when Mrs. Indira Gandhi served as Prime Minister and Mohan Kumaramangalam, a renowned attorney and legal luminary, served as the Union Minister. In order to better serve the interests of the poorer sections of society, the late Mrs. Gandhi attempted to put into practice her favourite slogan, “ Garibi Hatao ” (remove poverty), by abolishing the privy purses and privileges granted to the former rajas and princes of the princely States of pre-independent India and nationalising the 14 major banks. However, the conservative judiciary took it personally and overturned her attempts.

Mrs. Gandhi responded strongly and unequivocally, viewing the Supreme Court of India’s ruling in the Privy Purse abolition and bank nationalisation cases as an example of judicial overreach. On the recommendation of Mr. Kumaramangalam, it is believed that the conservative and senior Supreme Court justices who participated in the majority decisions in the aforementioned cases were passed over for appointment to the position of Chief Justice of India. The appointment of the dissenting judge, Mr. A.N. Ray, who was fourth in the line of seniority, led to the resignation of the three senior judges (Justices Hegde, Shelat, and Grover). This served as the foundation for the theory of judicial activism, which emerged as a result of the conflict between the executive and the judiciary.

Early cases of judicial activism

The following Supreme Court rulings provide insight into the development of judicial activism in independent India.

During the reign and dominance of British courts, the Supreme Court functioned as a technocratic court, but it gradually began to take an activist stance. The first landmark case in this regard was A.K. Gopalan v. the State of Madras (1950) , in which a writ was filed to determine whether detention without trial was a violation of fundamental rights under Article 14 , 19 , 21 , and 22 . The Supreme Court opined that the written Constitution contains the authority for judicial review. Even though the challenge was unsuccessful, it did start a new legal trend that became apparent in the years that followed.

Freedom of press

In the case of Sakal Newspapers Pvt. Ltd. v. Union of India (1962) , the government sought to regulate the number of pages in relation to the price of the newspaper in accordance with the Newspaper Act of 1956 and order of 1960. The Supreme Court ruled that newspapers could not be subject to the same regulations as other businesses because they served as a forum for the exchange of ideas and information. This decision broadened the protections for free speech provided by Article 19(1)(a) of the Constitution.

Reservation policy

In the case of Balaji v. State of Mysore (1963) , the Supreme Court reasoned that economic backwardness was the root cause of social backwardness. The Court distinguished caste from class and ruled that caste should not be used to assess backwardness. Additionally, it was decided that the reserved category’s percentage of the total should not exceed 50%. It was decided that Article 14, as well as the subsets of Articles 15 and 16 , must be complied with. Similar limitations on the reservation were imposed by the Court in the case of Chitralekha v. State of Mysore (1964) .

Doctrine of prospective overruling

The doctrine of prospective overruling first appeared in the American legal system. It states that a decision made in a specific case will only affect the future and will have no retrospective effect on previous decisions. In Golaknath v. State of Punjab (1971), the Supreme Court of India pioneered the idea of “prospective overruling” while addressing the constitutional validity of the 17th Amendment to the Constitution and determined that Parliament lacked the authority to amend Part III of the Constitution or to abridge any of the fundamental rights.

Doctrine of basic structure

In the case of Keshavananda Bharti v. State of Kerala (1973) , the Supreme Court issued a decision that is regarded as a watershed moment in Indian constitutional jurisprudence. While addressing the scope of the amending power conferred by Article 368 of the Constitution, the Court developed the theory of “basic structure.” By a 7:6 majority, a Bench of 13 judges ruled that Parliament had broad powers to amend the Constitution but that power must not abridge or destroy the basic structure or basic framework of the Constitution.

Habeas corpus case

The case of ADM Jabalpur v. Shivkant Shukla (1976) , in which Article 21 was brought up, resulted in the most contentious Supreme Court decision regarding judicial activism. The majority of the Bench hearing the case of ADM Jabalpur held that in cases of dire emergencies, such as those that existed between 1975 and 1977, a legal procedure could be established, following which even human life could be taken away. Although Justice Chandrachud, who wrote the decision, faced criticism for penning a pro-government opinion, the legal theory he advanced was an excellent illustration of judicial activism. Justice Chandrachud has interpreted Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to maintain the country’s sovereignty if it is threatened by either internal or external aggression.

Some other cases

In the case of Maneka Gandhi v. Union of India (1978) , Maneka Gandhi argued that the government had violated her personal freedom by seizing her passport. The court ruled that the seizure of the passports was unlawful. The A.K. Gopalan case ruling was overturned by the Supreme Court, ensuring the legitimacy of personal liberty under Articles 14, and 21.

In Minerva Mills v. Union of India (1980) , the Supreme Court rejected the attempt by the government to overturn the Kesavananda Bharti decision and usurp unrestricted power to amend the Constitution to its liking. As a result, the Court decided that judicial review is an essential part of the legal system and that Parliament is not permitted to broaden the purview of the previously granted limited powers.

Furthermore, Justice P.N. Bhagwati, India’s father of judicial activism, strengthened the concept in several decisions, including Hussainara Khatoon v. Home Secretary, State of Bihar (1979) , and Khatri v. the State of Bihar (1981) . This paved the way for it to be used as a tool in the hands of judges to ensure complete justice.

Thus, the evolution of judicial activism in India can be divided into three broad stages:

1950-1970: The period of the classical judiciary, which did not engage in any kind of activism.
1970-2000: The period in which the judiciary and judges established the concept of judicial activism and it gained popularity.
2000-till now: Judicial activism has flourished and touched various aspects, but it has also been infested by judicial overreach.

Constitutional powers of the Supreme Court and High Courts in India

Judicial activism is the practice of using the courts’ authority to examine state actions. According to Articles 32 and 226 of the Indian Constitution, the higher judiciary has the power to consider any legislative, executive, or administrative action as unconstitutional and void if it does so. One of the core provisions of the Indian Constitution is the right to judicial review.

Article 32 of the Indian Constitution

Article 32 of the Indian Constitution provides that every person has the right to directly file a case with the Supreme Court of India for the enforcement of their fundamental rights. Any fundamental right under Article 32 may be enforced by an order or writ issued by the Supreme Court.

The Supreme Court held in Fertilizer Corporation Kamgar Union v. Union of India (1981) that the Supreme Court’s authority granted by Article 32 is an important part of the fundamental framework of the Indian Constitution because “ it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated .” It cannot be suspended, even in an emergency. In many cases, the Supreme Court has increasingly used a very liberal interpretation of Article 32 to uphold fundamental rights even when faced with private entities performing public duties.

Article 226 of Indian Constitution

Article 226 of the Indian Constitution provides that the High Courts have the power to issue any suitable order or writ for the enforcement of basic rights and other legal rights. In this case, it appears that the High Court’s jurisdiction under Article 226 goes beyond the Supreme Court’s jurisdiction under Article 32. Articles 32 and 226 form the foundation of the Indian Constitution. Furthermore, the High Court was also granted authority over lower courts, tribunals, and special courts by Article 227 .

Article 136 of the Indian Constitution

In addition, the Supreme Court may grant special leave to appeal any judgment, decree, determination, sentence, or order made by any court or tribunal in any cause or matter under Article 136 of the Indian Constitution. In situations where there has been grave injustice or there is a significant legal issue, the Supreme Court uses its unique authority.

With the discretionary authority provided by Article 136, a case may be decided in accordance with justice, equity, and good conscience. However, it needs to be used carefully and with caution. In Pritam Singh v. the State (1950) , the Supreme Court ruled that the broad discretionary power granted by Article 136 should only be used in exceptional circumstances.

Additionally, the Supreme Court created the idea of the curative petition in the case of Rupa Ashok Hurra v. Ashok Hurra (2002) , while debating whether an aggrieved person has any right to relief even after the Supreme Court’s final decision.

Article 142 of the Indian Constitution

Article 142 of the Indian Constitution, which gives the Supreme Court the authority to issue an order to ensure full justice in the case at hand, is the most significant provision in relation to judicial activism. The Supreme Court’s decision in M Siddiq (D) Thr Lrs v. Mahant Suresh Das and Ors (2019), also known as the Ram Janmabhoomi/Babri Masjid case, overturned the Allahabad High Court’s (2010) ruling in accordance with Article 142 of the Indian constitution, is an illustration of such an order.

The Supreme Court of India has the authority to enact laws under Article 142 of the Indian Constitution, despite the fact that the Parliament of India retains the primary authority to do so. The order will be in effect until Parliament passes legislation to address the problem, but it should be noted that this Article can be invoked when there is a gap in the law or the order is in the public interest.

Notable forms of judicial activism

The invention of public interest litigation .

Judges like V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and D A Desai supported judicial activism and issued numerous decisions addressing people’s fundamental rights. It is frequently claimed that the development of public interest litigation and the ensuing liberalisation of the Locus Standi rule are the roots of judicial activism. PIL was conceived with the noble goal of empowering the oppressed, poor, and needy by ensuring justice for them by relaxing the rigour of Locus Standi .

Since the 1970s, the Supreme Court has accepted genuine cases even from people who are not affected. Public Interest Litigation encompasses situations in which the general public interest has been violated or harmed as a result of official indifference and the decisions made in these cases fall under the umbrella of judicial activism. PIL guarantees justice for a larger group of people who do not have access to it. In India, social activists and public interest litigators have actively supported the higher judiciary in advocating measures to ensure the welfare of the oppressed, underprivileged, and exploited classes.

The judiciary has evolved into a reformer with the ability to influence socioeconomic situations. The PILs provide an overview of how proactive Indian courts work to change society. So far, the Supreme Court has considered the issue and the rights of children and women, oppressed and vulnerable groups in society, bonded labour, casual labour, mentally and physically handicapped, undertrial prisoners, detainees, and convicted persons held in custody, and so on.

Judicial decisions on PILs

The practice of taking matters of public importance directly to the Supreme Court began with the case of Maharaj Singh v. State of Uttar Pradesh (1976). In this case, the court agreed that a lack of legal standing would not be sufficient to dismiss a case where harm had been done to the community. The term “PIL” was first used by Justices Iyer and Bhagwati in the Fertilizer Corporation Kamgar Union case. The Court’s decision also referred to petitions that were submitted in the form of letters as having epistolary jurisdiction.
In Hussainara Khatoon v. State of Bihar (1979), a petition was filed with the Supreme Court in response to newspaper articles about the circumstances surrounding undertrials in prison. Some of the defendants had already served more time than was permitted for the crime for which they were detained. The cases were pending for years before an overburdened judiciary, and those on trial were unable to obtain bail because they did not have enough money to pay as bonds and sureties. As a writ, the petition was approved. If they were unable to raise the required bail sum, Justice Bhagwati and the other judges on the bench mandated their release on personal bonds. They claimed that a speedy trial was a fundamental right that couldn’t be restricted due to money. The right to unrestricted access to legal representation is part of the court’s ruling on both the right to life and the right to personal liberty. With this ruling, the judicial system fixed a flaw, and thousands of people facing such undertrials have been granted bail since then.
The court in SP Gupta v. Union of India (1982) also acknowledged the disadvantageous circumstances facing many citizens and ruled that anyone with sufficient interest and a sincere intention could petition the court on their behalf. They argued that the court would treat letters as writ petitions and proceed accordingly and that procedures are nothing more than the handmaidens of justice and cannot be rejected solely for technical reasons.
The Supreme Court ruled in People’s Union for Democratic Rights v. Union of India (1982) that public interest litigation is distinct from the conventional adversarial justice system. The court claims that the goal of public interest litigation is to advance the public good. Public interest litigation was created to provide justice to the poor and other socially or economically disadvantaged members of society. Such a large number of people’s constitutional or legal rights should not go unnoticed.
In the Municipal Council, Ratlam v. Vardichand (1982) , the Court accepted a writ petition submitted by a group of citizens seeking orders against the local municipal council for the removal of open drains. The Court stated that if “ the centre of gravity of justice is to shift, as indeed the Preamble to the Constitution mandates, from the traditional individualism of Locus Standi to the community orientation of public interest litigation, the court must consider the issues as there is a need to focus on ordinary men .” In a similar vein, the Supreme Court of India accepted a petition for court orders to safeguard the lives of people who used the Ganga’s flowing water as public interest litigation in the case of M.C. Mehta v. Union of India (1988) . In this case, the court ordered local governments to take appropriate action to stop Ganga River pollution.

Thus, the goal of public interest litigation is to ensure justice for the most vulnerable members of society, whereas judicial activism is a tool for ensuring justice for all members of society. The Supreme Court and the high courts have used their judicial activism authority to issue numerous rulings since the declaration of the emergency.

The Basic Structure Doctrine

In addition to creating procedural techniques, the Supreme Court’s activism has enriched jurisprudence with pioneering concepts like the basic structure doctrine. According to this, any amendment that alters the basic structure of the Constitution is unconstitutional.

The Supreme Court ruled in Kesavananda Bharati v. the State of Kerala that the power to amend the Constitution guaranteed by the Constitution did not include the possibility of amending the most fundamental and essential elements of the Constitution. The Constitution’s underlying framework cannot be altered by any amendment. The majority defined the fundamental elements of the constitution as the rule of law, secularism, federalism, equality, and democracy.

Following the Keshavananda Bharati ruling, the Supreme Court invalidated a number of Constitutional Amendments, putting their fundamental test of basic structure. The 39th Amendment was declared unconstitutional by the court in Indira Nehru Gandhi v. Raj Narain (1975) because it sought to uphold Mrs. Gandhi’s election after it had been declared invalid by the Allahabad High Court and while her appeal was still pending before the Supreme Court.

In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court ruled that Parliament had expanded its limited power of amendment contained in Article 368 into absolute power.

In Kihoto Hollohan v. Zachillhu (1992) , the Supreme Court determined that paragraph seven of the Constitution’s 10th Schedule , which prohibited judicial review of the Speaker’s or Chairperson of the House’s decision regarding the disqualification of MLAs or MPs, violated the basic structure of the Constitution.

By developing the basic structure doctrine, the Supreme Court ensured that at least some fundamental rights of the underprivileged, minorities and weak cannot be curtailed by the Constitution, not even through Constitutional Amendments.

Article 21 and judicial activism

If there is a Supreme Court decision that has revolutionised the interpretation of Article 21, which safeguards the right to life and personal liberty, it is Maneka Gandhi v. Union of India (1978) . This decision has awakened the Indian judiciary from a persistent state of dormancy with regard to the right to life and the freedom of the individual guaranteed by Article 21 of the Constitution.

A new interpretation of Article 21 of the Indian Constitution was provided by the Supreme Court of India in the case of Maneka Gandhi v. Union of India . It set a great precedent for the further evolution of concepts of reasonableness and fairness. According to the Supreme Court, the concept of life encompasses not just a mere animal existence but also an existence with all the rights that entails. The Supreme Court declared for the first time that simply outlining a process for denying life and liberty is insufficient; the process itself must be just and reasonable.

To protect the rights of millions of people who lack access to justice, Article 21 of the Constitution was expanded to include a broader definition of life, personal liberty, and “procedure established by law.” It actively denounced the abuse of power and inaction on the part of public officials as it fought for the interests of the average citizen. A few cases are as follows:

In the case of P. Rathinam v. Union of India (1994) , the Court was asked whether the right to die falls under the purview of the right to life. The majority of the Bench found that it does, and Section 309 of the Indian Penal Code was ruled invalid and unconstitutional. This was overruled in the case of Gian Kaur v. State of Punjab (1996) , where the Court ruled that while Article 21 does include the right to die with dignity, the right to life does not include the right to die and that committing suicide is punishable under Indian law. Furthermore, the Supreme Court determined that passive euthanasia is covered by the definition of the right to life under Article 21 in one of the most well-known cases, Common Cause (A Regd. Society) v. Union of India (2018) .

The right to privacy is now recognised as an essential component of the right to life and personal liberty. The sanctity of a person’s private sphere is upheld by the ruling in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2018) . The “right to be alone” is only one aspect of the right to privacy, and it has grown significantly since then. It includes the freedom to make important personal decisions without unjustified state interference, including those involving intimate sexual behaviour.

In the case of Navtej Singh Johar v. Union of India (2018) , the Supreme Court declared a portion of Section 377 of the Indian Penal Code to be unconstitutional and stated that it “violates the right to life and liberty guaranteed by Article 21, which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions of a human being”.

In the case of Shakti Vahini v. Union of India (2018) , the Supreme Court ruled that the right to choose one’s life partner is a fundamental right protected by Article 21 and ordered the government to take all reasonable preventive steps to prevent honour killings and related crimes.

In the case of Olga Tellis v. Bombay Municipal Corporation (1986) , the Court stepped in to support pavement dwellers in Bombay by pointing out that the right to life also includes the right to a livelihood. In the M.C. Mehta case, Article 21 recognised the right to a pollution-free environment as a fundamental right.

The pro-environmental stance of the judiciary

The Indian judiciary has taken an active role in protecting the environment for the benefit of the population. Given that a pollution-free environment was deemed to be a fundamental right pursuant to Article 21 of the Constitution, the Indian judiciary deserves all the credit for sustainable development and environmental protection. The courts have decided on a number of historic rulings requiring public bodies to address environmental issues.

One of the judiciary’s most crucial tools was Public Interest Litigation. Several cases involving environmental protection, preservation, and sustainability have been handled through PIL, making environmental protection a constitutional duty and obligation. The principles and doctrines that have enriched environmental jurisprudence have steadily grown as a result of PIL cases and the accompanying activist approach of the judiciary.

The Indian Supreme Court’s interpretation of the scope of the authority granted by Article 32 of the Indian Constitution to issue directions and orders ‘whichever may be appropriate’ in appropriate proceedings led to the establishment of the doctrine of absolute liability for harm brought on by hazardous and inherently dangerous industries. There are no exceptions to the newly developed doctrine of absolute liability for damages brought on by industry engaged in hazardous and inherently dangerous activities. This doctrine substitutes the English common law’s strict liability rule. This rule was developed in the case of M.C. Mehta v. Union of India (1987) , also known as the “oil gas leak case.”

The Court in the above case held that the addition of exceptions to the rule, such as an act of God, the plaintiff’s default, the plaintiff’s consent, an independent act of a third party, and statutory authority, greatly diminished the strict liability principle developed in England more than a century ago in Rylands v. Fletcher (1868) . The Supreme Court ruled that cases involving the determination of liability in hazardous and inherently dangerous industries in India did not fall under the exceptions to the strict liability principle.

Since then, beginning with the Rural Litigation Kendra case (1985) , the Court has introduced concepts like “sustainable development,” “polluter pay,” and the public trust doctrine principle. It has also adopted some other concepts from international treaties like the Stockholm Declaration , Rio Declaration , Kyoto Protocol , Biodiversity Convention , various United Nations Environmental Programs, and so forth.

In a progressive development of environmental jurisprudence, the Supreme Court elevated the right to a clean and healthy environment to the status of a fundamental human right under Article 21 of the constitution. India’s environmental governance has benefited from the application of such a constitutional shield to environmental concerns through active judicial activism. The Supreme Court has changed the definition of life from mere animal existence to a meaningful existence through a number of judicial decisions.

In Milkman Colony Vikas Samiti v. State of Rajasthan (2007) , the Supreme Court ruled that the right to life includes the right to a clean environment, which contributes to a healthy body and mind. In Arjun Gopal and others v. Union of India and others (2018) , the Supreme Court stated, “No one may be permitted to infringe on the right to health of others, granted under Article 21, under the guise of celebration.”

Justice Shah stated, “We cannot endanger the lives of many people for the sake of a few. The right to life of innocent people is our top priority .”

India’s courts have played a special role in continuously advancing the notion of a decent life by addressing and resolving a variety of environmental issues. In addition to being a human right, everyone in nature, including human and non-human creatures, has a right to a clean and healthy environment. By adopting an activist stance, the Indian court has upheld the right to a clean and healthy environment that is guaranteed by the constitution.

Women empowerment

The role of judicial activism extends beyond the aforementioned forms. Another area where this has been seen is in women’s empowerment. The judiciary has made significant progress in preventing workplace exploitation of women and improving conditions for women.

This was also made clear in the case of Air India v. Nargesh Meerza (1981), where the Supreme Court ruled that the rule requiring an air hostess to leave the workforce following her first pregnancy was invalid, unconstitutional, and in violation of Article 14 of the Indian Constitution.

In Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985) , the Supreme Court overruled Muslim Law and extended the period of Iddat from four months and ten days to provide justice to Shah Bano Begum.

In Vishakha v. State of Rajasthan (1997) , the Supreme Court issued guidelines for the prevention of sexual harassment cases under Article 32 read with Articles 141 and 142. These regulations from 1997 have been replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 .

In the Railway Board v. Chandrima Das (2000) case, employees of the Indian Railway gang-raped a Bangladeshi national in a room at Howrah’s Yatriniwas station. The government argued that it was immune from liability under tort law because the ‘Yatriniwas’ were not committed while it was performing its official duties. The Hon’ble Court, on the other hand, rejected this claim, stating that the Union of Indians employees, who are in charge of managing the establishment, including Yatrinivas and the railway station, are important components of the machinery of government that carries out commercial activity.

If any of these employees violate the law, the union government where they work can be held vicariously liable for compensating the victim of their actions, provided that other legal requirements are met. The Supreme Court granted the victim a compensation award of Rs. 10 lakh. The scope of the right is very broad because it extends to non-citizens as well.

In the Laxmi v. Union of India (2015) case, in 2006, Laxmi, a victim of an acid attack, filed a petition calling for laws to control the sale of acid and to compensate the victim. In 2013, the Supreme Court put strict restrictions on the sale of acid due to the rise in cases involving acid attacks on women.

The decision made it unlawful to sell acid. Dealers are only permitted to sell acid to customers who have valid identification and can justify the purchase. The dealer is required to notify the police of the sale within three days. Additionally, it prohibited the sale of acid to anyone under the age of 18.

By decriminalising adultery and striking it from the Indian Penal Code in the case of Joseph Shine v. Union of India (2018) , the Court overturned its own decision in the case of Sowmithri Vishnu v. Union of India & Anr (1985) , reasoning that the law was based on gender stereotypes and thus violated Articles 14 and 15 of the Constitution because it only considered the husband of the adulteress who was aggrieved rather than the wife of the adulterer. The Court went on to say that making adultery a crime would be an unjustified invasion of people’s privacy because it would make legalising interpersonal relationships more stringent than they already are.

The Delhi High Court’s decision to commission women into the Army on a permanent basis was recently upheld by a Supreme Court Bench in Defense Secretary v. Babita Puniya and Others (2020) . The Supreme Court ruled that excluding women from command positions based only on their physical characteristics and domestic duties is unreasonable. The Court further declared that women’s complete exclusion is unlawful and in violation of Article 14 of the Constitution.

Transformation from activism to overreach

Parliament has frequently charged the judiciary with judicial interference. The judiciary is acting outside of its constitutional authority, according to the parliament. Judicial activism that goes beyond all justifiable limits is referred to as “judicial overreach.” Judicial overreach occurs when the courts arbitrarily, excessively, and repeatedly intrude into the domain of the legislature and the executive.

Although the differences between judicial activism and overreach are subtle, their effects on society are completely different. Contrary to the requirement of judicial activism, the intention of judicial overreach is not genuine. Overreach impedes the functioning of a healthy democracy’s institutions.

According to CJ J S Verma, “Judicial activism is appropriate when it is in the realm of legitimate judicial review. There shouldn’t be any judicial tyranny or ad hocism .”

In April 2007, in New Delhi, Dr. Manmohan Singh spoke at a conference of Chief Ministers and Chief Justices of the High Court. He said, “ Courts have played a salutary and corrective role in countless instances. Our people hold them in the highest regard for that. In addition, it is difficult to distinguish between judicial activism and overreach .” This statement sparked broader discussions about judicial accountability in India.

The judiciary has no justification for exercising restraint. In the case of Divisional Manager, Aravalli Golf Course v. Chander Hass (2007) , the Supreme Court ruled that judges should not overstep their authority and should not attempt to seize control of the government. Each branch of government, including the legislature, executive, and judiciary, must respect the separation of powers and refrain from meddling in the affairs of the others.

The court emphasised that “judicial activism” should not be mistaken for “judicial adventurism,” noting that “judicial intervention,” “judicial encroachment,” and “judicial activism” are frequently justified by the argument that the legislature and executive are not carrying out their duties properly. The judiciary is no exception to this rule, with cases pending in various courts for more than fifty years. To maintain a healthy balance of power among the three branches of government, the courts should exercise a certain amount of restraint.

Many fundamental constitutional principles are violated by judicial overreach. There is no excuse for it, so it violates the separation of powers. It goes against the law’s supremacy, which is guaranteed by the rule of law. The court, on the other hand, places itself above the law and applies it however it sees fit. Additionally, it strikes against the democratic value of accountability. In a democracy, responsibility is established for all deeds committed, choices made regarding public policy, and executive action or inaction. However, there is simply no accountability of any kind when the court starts to intervene in these areas because courts operate independently of anyone.

Judicial restraint

The growing number of cases involving judicial overreach sparked a debate about judicial restraint as a preventive measure. Judicial restraint stands in contrast to judicial activism and overreach.

Judicial restraint is a judicial decision-making philosophy in which judges avoid indulging in their personal beliefs about the public good in favour of merely interpreting the law as legislated and according to precedent. The fundamental concept underlying judicial restraint is that the will of the people is best expressed through legislative bodies and that people should bear the consequences of their political choices. Policies are bound to change when the government changes. And with their decision, judges should abstain from establishing new policies.

To preserve the delicate balance of power among the various branches of democracy, the Supreme Court has repeatedly emphasised the significance of judicial restraint.

In the case of Minor Priyadarshini v. the Director of Elementary (2016) , Justice Markandey Katju stated, “ Under the Constitution, the legislature, the executive, and the judiciary each have their own broad spheres of operation. If any of these three state bodies ventures outside of their respective jurisdictions, the Constitution’s delicate balance will be upset. Therefore, the judiciary must use restraint and repress the desire to act as a super-legislature. It will only increase its own respect and reputation by exercising restraint.”

In the well-known case of S.R. Bommai v. Union of India (1994) , the Court determined that there can be no judicial review when there is a high level of political interest involved and that the judiciary should not get involved.

In Almitra H. Patel v. Union of India (2000), the Supreme Court rejected giving the Delhi Municipal Corporation instructions on how to clean Delhi, claiming that the matter was outside of its purview and that all it could do was ask the organisation to carry out its legal obligations.

In a number of other cases, the court has upheld the restraint principle and its limited application. In Divisional Manager, Aravali Golf Course v. Chander Haas (2007), the Supreme Court stated that “ judges must know their limits and are not to run the government. Instead of acting like emperors, they must be modest and humble. The Constitution establishes a clear division of power, and each branch of government is obligated to respect the others and refrain from encroaching on their domain.”

The Supreme Court once more emphasised in Government of Andra Pradesh v. P Laxmi Devi (2008) that “i nvalidating a legislative act is a grave step that should never be taken lightly. A court may rule that a statute is unconstitutional not simply because this point of view is possible, but only when it is the only viewpoint that is not subject to the rational question “.

Difference between judicial activism, restraint and overreach

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 restraint is the exact opposite of judicial activism. It is a theory of judicial interpretation that urges judges to restrain their power. As a procedural theory, the idea of restraint urges courts to hold off on making decisions on legal matters, especially constitutional ones, unless the decision is necessary to settle a particular dispute between opposing parties. It encourages courts debating constitutional matters to accord the elected branches considerable credibility and to only reject their acts when they violate the constitution.

Judicial overreach

Judicial overreach is the term used when judicial activism turns into judicial adventurism. This type of activism involves frequent, arbitrary, and unjustified intrusions by the judiciary into legislative affairs. By doing this, the judiciary goes beyond its authority, risks interfering with the legislative or executive branches of government, and goes against the spirit of the separation of powers.

Difference between judicial activism and judicial restraint

Judicial activism and judicial restraint are terms used to describe the use of the power of the judiciary. Some of the differences between judicial activism and judicial restraint are as follows:

Using the Constitution to promote existing values and conditions is known as judicial activism. Contrastingly, judicial restraint restricts the power of the judge to strike down a law.
Judicial activism and judicial restraint have different objectives. Judicial restraint aids in the preservation of the balance of power among the three branches of government: the judiciary, the executive, and the legislative. In this case, the judges and the court advocated reviewing an existing law rather than changing it. Judicial activism contributes significantly to the creation of social policies on issues like the protection of individual rights, civil rights, public morality, and political injustice.
Judicial activism considers changing aspects of society, whereas judicial restraint is not required to consider wider issues.

Difference between judicial activism and judicial overreach

There is very little difference between judicial activism and overreach. Simply put, judicial overreach happens when judicial activism goes too far and turns into judicial adventurism. The court runs the risk of interfering with the operations of the legislative and executive branches of government when it exceeds its authority.
Although judicial activism is viewed favourably as a supplement to the executive’s failings, overreaching into the executive’s purview is seen as an intrusion into the democratic process.
Individual perceptions influence whether an action is considered activist or excessive.
The court, on the other hand, has always contended that they must intervene and issue orders due to legislative and executive overreach.

Conclusion

The scope of judicial activism is so broad that no precise definition exists. The powers for judicial activism or review are derived from the Indian constitution, which empowers them to perform an effective function by asserting themselves. In the Judiciary, protection of the Constitution, rule of law, and constitutionalism are strengthened by judicial activism, which serves as a safety net in the event of a crisis brought on by a different interest group in society. The judiciary oversees the administration of justice and ensures that decisions are made in the public interest and in good faith.

However, courts should exercise caution when implementing the concept. The judges should exercise self-control and limit their interference with other organs. When judges become overly enthusiastic, they tend to cross certain lines, making it difficult to maintain the traditional functioning of the courts. As a result, there must be a distinction between judicial activism and judicial overreach because judicial overreach will destabilise the judiciary. To uphold the nation’s peace, prosperity, law, and order, the government must work more effectively and smoothly. The task of covering up and correcting the wrongdoing and poor judgement of the government cannot be placed as a heavy burden on the judiciary. The skill of judicial activism should be used with extreme caution because it is the height of judicial creativity and a delicate subject. Otherwise, the integrity of the system may be undermined.

Why is judicial activism necessary in India?

The legislature has the authority to enact laws in India, and the judiciary is not permitted to intervene. However, there have been instances when the legislature has failed to pass legislation when it was required. In such cases, the judiciary may use the concept of judicial activism to deliver justice to the people, necessitating activism.

Does activism of the Supreme Court go against the Constitution?

No, the Supreme Court has always followed the Constitution. It has tenaciously performed its main duty of upholding constitutional goals. It is the Court’s constitutionally mandated duty to enforce the law, not just for minor infractions, but for those that have serious consequences for the public at large. In such cases, our constitutional framework does not allow for any criticism of such acts as judicial overreach.

Is the judiciary a despotic branch of the State?

The judiciary is not a despotic branch of the state. Despite expanding the areas in which it can weigh in on issues of public administration and policy, the Indian Supreme Court is well aware of the limitations that must be adhered to. The Supreme Court stated in the case of P. Ramachandran Rao v. the State of Karnataka (2002) that it does not consider itself to be an Imperium in Imperio or would function as a despotic branch of the State.

How does judicial activism strengthen democracy in India?

Judicial activism gives judges the power to make decisions that support innovative and progressive social policies, which helps social engineering. By upholding constitutional restraints, judicial activism in a contemporary democratic system acts as a check on legislative excess and executive tyranny. Additionally, it contributes to the expansion and protection of individual rights.

References

Judicial activism and overreach in India
Judicial Activism in India
The Origin and Current Meanings of Judicial Activismhttps://lawcat.berkeley.edu › record › files › fulltext
Judicial Activism in India
The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint
Judicial activism and public interest litigation in India
‘Judicial activism safeguards rights of the underprivileged’

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NAVIGATING THE COMPLEX TERRAIN OF JUDICIAL ACTIVISM IN INDIA: FROM INCEPTION TO CONTROVERSY

By Anushka Singh

Judicial activism, the judiciary's proactive interpretation and application of law, has sparked a long-standing debate in India. Proponents laud its role in protecting fundamental rights and upholding constitutional principles, citing landmark cases like the Right to Education and the decriminalization of homosexuality. Critics, however, raise concerns about judicial overreach and potential encroachment on the legislature and executive's domains. The 1973 Kesavananda Bharati case marked a turning point, establishing the "basic structure" doctrine that certain constitutional elements are unamendable. This empowered the judiciary to play a more assertive role, evident in landmark judgments like the Vishaka Guidelines on sexual harassment and the Narmada Bachao Andolan case protecting natural resources. However, recent rulings like the one mandating a committee for CEC appointments have ignited fresh anxieties about judicial encroachment on executive authority. Critics argue for striking a delicate balance between safeguarding rights and respecting the separation of powers. Moving forward, open dialogue and collaboration between the judiciary, legislature, and executive are crucial. Regular consultations and joint initiatives can foster understanding and address potential frictions before they escalate. Ultimately, navigating the complexities of judicial activism necessitates a nuanced approach that ensures both judicial independence and effective governance.

NAVIGATING THE PRECARIOUS PATH

Judicial activism, denoting the judiciary's proactive involvement in the interpretation and application of legal principles, has ignited a prolonged and contentious discourse within the Indian legal landscape. Proponents extol its role as an indispensable instrument for the preservation of fundamental rights and the meticulous adherence of government to constitutional tenets. Conversely, detractors express apprehensions regarding the potential for judicial overextension and its disruptive impact on the sacrosanct doctrine of the separation of powers. This essay undertakes a comprehensive exploration of the intricate intricacies surrounding judicial activism in the Indian context, delving into its historical antecedents, seminal adjudications, and the persisting conundrums that continue to arouse scholarly debates and legal controversies.

The Birth of Judicial Activism

Prior to the 1973 Kesavananda Bharati case [1] , Indian courts predominantly adopted a judicial restraint approach. This meant they exercised restraint in reviewing legislative actions and rarely struck down laws as unconstitutional. The emphasis was on respecting parliamentary supremacy and giving due deference to the legislature's will. Some famous examples of this era include the Shankari Prasad case (1951) [2] and the Golaknath case (1960) [3] , where the court upheld laws despite concerns about their constitutionality.

The Kesavananda Bharati case marked a turning point in Indian jurisprudence. The inception of the concept of judicial activism in India can be traced back to the aftermath of the 1973 Kesavananda Bharati case, a landmark event where the Supreme Court laid down the doctrine of the basic structure of the Constitution. This doctrine asserted that the Parliament's authority to amend the Constitution was not absolute, and certain foundational principles, such as democracy and the rule of law, were beyond alteration. This momentous ruling marked a transformative juncture in Indian jurisprudence, granting the judiciary a more assertive role in protecting the Constitution. This has led to several progressive judgments, including the decriminalization of homosexuality, and the recognition of the right to privacy as a fundamental right.

Judicial Activism and Constitutional Evolution

The activism of the Supreme Court is conspicuous in numerous pivotal cases. In 1997, in the Vishaka Guidelines on Sexual Harassment at the Workplace [4] , the Court issued directives to prevent sexual harassment, recognizing women's entitlement to a secure work environment. Similarly, in the influential case of Unni Krishnan v. State of Andhra Pradesh (1993) [5] , the Court affirmed that the right to education is a fundamental right under Article 21 of the Constitution [6] . This judgment laid the groundwork for the enactment of the Right to Education Act, 2009 [7] , which enshrined education as a fundamental right for all children aged 6 to 14. In the case of MC Mehta v. Union of India (1986) [8] , the Supreme Court ordered the closure of environmentally detrimental industries in Delhi and mandated government action to cleanse the Yamuna River. The Court has also played a significant role in safeguarding forests and natural resources, as exemplified in the case of Narmada Bachao Andolan v. Union of India (1994) [9] , which revolved around the construction of a dam on the Narmada River.

Criticisms of Judicial Activism

Notwithstanding its accomplishments, judicial activism has encountered substantial criticism. Detractors argue that it undermines the separation of powers, trespassing into the domains of the legislative and executive branches. They contend that judges, as unelected officials, should refrain from making policy decisions that are more aptly the purview of elected representatives. Unlike elected officials, judges are not directly accountable to the public. [10] This raises concerns about their potential to overstep their bounds and make policy decisions, which should ideally be left to the legislature. Furthermore, they express apprehensions about the potential for legal uncertainty and instability if judges are afforded excessive latitude in interpreting laws, yet The Indian Constitution's safeguards, like collegiality in judicial appointments and a robust appeals system, strive to minimize bias and ensure judicial independence. Furthermore, public scrutiny and open court proceedings offer additional checks and balances. Ultimately, judges who consistently display bias are likely to be corrected by their peers or through subsequent rulings.

The Right to Privacy and Its Aftermath

The Right to Privacy case of 2017 [11] , wherein the Supreme Court recognized the right to privacy as a fundamental right, spotlights the controversies surrounding judicial activism. The decision received acclaim for its progressive stance on individual autonomy but also faced allegations of judicial overreach. The argument here is that the creation of novel fundamental rights falls within the prerogative of the legislature, and that the right to privacy could be exploited to curtail freedom of speech and expression.

Encroachment on Executive Authority

The Supreme Court's ruling on March 2, 2023, mandating that the President appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs) based on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India, has further stoked the debate on judicial activism. [12] This decision represents an overstepping of judicial authority, as it encroaches upon the executive's power to make appointments and contravenes the separation of powers. Critics also contend that the involvement of unelected officials in the appointment process raises concerns about democratic accountability.

Collaborative Pathways for a Balanced Legal Landscape

Judicial activism, while demonstrably contributing to social progress and safeguarding fundamental rights, remains a contested concept in India. Navigating the anxieties it evokes requires more than mere critique. Instead, we must emphasize the critical importance of open dialogue and collaboration between the judiciary, legislature, and executive. Each branch must communicate openly and transparently, sharing concerns, perspectives, and expertise. Regular consultations, joint committees, and even informal discussions can foster mutual understanding and respect. [13] Only then can potential frictions be identified and addressed before they escalate into full-blown conflict. This collaborative approach transcends the zero-sum game of power struggles. It recognizes the interdependence of the three branches, each playing a crucial role in upholding the Constitution and serving the best interests of the people. By breaking down silos and fostering mutual respect, we can move beyond contention towards a legal landscape where individual rights are protected, democratic processes are strengthened, and good governance truly flourishes.

Conclusion: Treading a Precarious Path

The discourse on judicial activism in India is poised to endure, given its intricate nature with no ready solutions. While judicial activism can play a pivotal role in safeguarding fundamental rights and upholding the constitution, it is imperative to strike a delicate balance between judicial overreach and the effective functioning of the other branches of government. The judiciary must exercise its authority judiciously, ensuring that its actions are firmly rooted in constitutional principles and do not undermine the democratic process.

Judicial activism is a two-edged sword that can bring about constructive societal change while also posing threats to the separation of powers and democratic accountability. It is paramount to cautiously navigate this precarious equilibrium to ensure that the judiciary fulfills its constitutional mandate while respecting the authority of other branches of government. The ongoing debates on judicial activism will unquestionably shape the future of India's legal landscape, and it is imperative to engage in constructive dialogue to establish a framework that promotes both judicial independence and democratic governance.

The author of this article is Anushka Singh, a fourth-year BBALLB student at SVKM's NMIMS School of Law, Navi Mumbai.

[1] Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

[2] Shankari Prasad Singh Deo v. Union of India, A.I.R. 1951 S.C. 458.

[3] Golaknath v. State of Punjab, A.I.R. 1960 S.C. 644.

[4] Vishaka and Others v. State of Rajasthan, A.I.R. 1997 S.C. 3011.

[5] Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.

[6] The Constitution of India, Art. 21A & Art. 21.

[7] The Right of Children to Free and Compulsory Education Act, 2009, No. 35 of 2009 (India)

[8] M.C. Mehta & Anr. v. Union of India & Ors., A.I.R. 1986 S.C. 1066.

[9] Narmada Bachao Andolan v. Union of India & Ors., A.I.R. 1994 S.C. 350.

[10] Rajagopalan, N. (2022, September 8). Tax sleuths raid think-tank that examines government policies. Newslaundry. https://www.newslaundry.com/2022/09/08/tax-sleuths-raid-think-tank-that-examines-government-policies , (accessed Jan 10, 2024)

[11] Justice K.S. Puttaswamy and Anr. v. Union of India & Ors. (2017) 10 SCC 1: (Puttaswamy I)

[12] Judgment in Writ Petition (C) No. 320 of 2022 (March 2, 2023): https://main.sci.gov.in/supremecourt/2021/30718/30718_2021_2_1501_46056_Order_11-Aug-2023.pdf ,

[13] Avinash, Judicial Activism in India: An Analysis of Strengths and Weaknesses, Legal Service India (Jan. 10, 2024), https://www.legalserviceindia.com/legal/article-5548-judicial-activism-an-analysis-of-indian-jurisprudence-merits-and-de-merits.html : https://www.legalserviceindia.com/legal/article-5548-judicial-activism-an-analysis-of-indian-jurisprudence-merits-and-de-merits.html .,

This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).

Judicial Activism, meaning, definition, examples, and Indian perspective

Judicial activism is the practice of courts examining state actions and judicial philosophy that considers broader societal implications beyond the applicable law.

Table of Contents

Judicial activism is a term that often sparks intense debates and discussions in legal and political circles. It refers to a proactive role taken by judges in interpreting and applying the law, often going beyond the literal interpretation of statutes to address issues of social justice, individual rights, and public interest. In this article, we will explore the meaning, definition, examples, and the Indian perspective of judicial activism, while also distinguishing it from judicial review.

Judicial Activism

Judicial activism is the practice of courts examining state actions and judicial philosophy that considers broader societal implications beyond the applicable law. It contrasts with judicial restraint, which adheres to original intent, and precedent, and defers policy decisions to the legislature and executive. Some support it for protecting rights and driving change, while others advocate for strict interpretation. An example of judicial activism is the Roe v. Wade decision, which legalized abortion on privacy grounds. In India, justices like V R Krishna Iyer, P N Bhagwati, O Chinnappa Reddy, and D A Desai laid the groundwork for judicial activism, granting the higher judiciary authority to declare legislative, executive, and administrative actions unconstitutional.

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Judicial Activism Meaning

Judicial activism is a legal approach where judges actively interpret and apply the law, often going beyond the literal meaning of statutes to address broader societal and ethical implications in their decisions. It involves judges proactively shaping legal and public policy, making decisions that may affect individual rights, minority interests, and social change, even if it means challenging existing laws and government policies. This approach is distinct from judicial restraint, which focuses on a more literal interpretation of the law and a limited role for the judiciary.

Judicial Activism Origin

The concept of judicial activism originated in the United States and was first coined by historian Arthur Schlesinger, Jr. in 1947. It gained prominence in the mid-20th century as American courts, particularly the Supreme Court, took on an increasingly active role in addressing civil rights and social justice issues. Landmark decisions like Brown v. Board of Education and Roe v. Wade exemplified this approach, expanding the scope of judicial authority beyond traditional legal interpretation. In India, judicial activism found its foundation through Justices V. R. Krishna Iyer, P. N. Bhagwati, O. Chinnappa Reddy, and D. A. Desai, who laid the groundwork for a more proactive and socially conscious judiciary, granting it the authority to declare government actions unconstitutional.

Judicial Activism Definition

Judicial activism involves judicial review to invalidate government actions and encompasses several definitions:

Using the courts to scrutinize state actions,
Expanding individual rights by departing from established precedents
Allowing personal policy views to influence decisions.

It transpires when courts actively shape social, economic, or political policies, often interpreting laws and the Constitution liberally to achieve what they see as just outcomes. The term typically conveys criticism of excessive judicial review, though consensus on what qualifies as undesirable remains elusive, as perceptions vary widely on which instances warrant criticism or approval.

Judicial Activism in India

The Indian Constitution places the onus on the State to ensure justice, liberty, equality, and fraternity and protect individuals’ fundamental rights and implement the Directive Principles of State Policy. To prevent the State from evading these responsibilities, the Constitution grants the courts inherent powers to review its actions. The Indian judiciary is regarded as the guardian of the Constitution, actively safeguarding individuals’ fundamental rights against unjust state actions. Judicial activism, as per Black’s Law Dictionary, is when judges use personal views, sometimes disregarding precedent, to guide decisions in interpreting public policy.

Constitutional Powers of the Supreme Court and High Courts in India

Transition from locus standi to pil in india.

The transition from “locus standi” to “public interest litigation” in India has broadened access to justice. The Indian judiciary recognizes it as a fundamental right, enabling marginalized and disadvantaged individuals to seek justice. This shift emphasizes a more participatory and democratic approach, allowing the courts to engage with public issues and protect the rights of those who face barriers to traditional legal recourse.

Landmark cases highlight the significance of this shift:

Hussainara Khatoon (I) v. State of Bihar: This case emphasized the right to a speedy trial, leading to directives for providing free legal assistance to undertrial prisoners.
Sheela Barse v. State of Maharashtra: It allowed a letter alleging custodial violence to be treated as a writ petition, showing the court’s willingness to address pressing issues.
Sunil Batra v. Delhi Administration: The court recognized that technicalities should not hinder the protection of civil liberties, allowing individuals to seek justice through correspondence.
Municipal Council, Ratlam v. Vardichand: This case emphasized the shift from “locus standi” to a community-oriented approach in public interest litigation.
C Mehta v. Union of India: The court accepted a petition concerning Ganga River pollution as a public interest matter, directing measures to prevent pollution.
Parmanand Katara v. Union of India: It allowed a writ petition for immediate medical treatment for accident victims without complex legal procedures.
P. Gupta v. Union of India: Bar associations gained the right to file writs through public interest litigation, challenging arbitrary transfers of High Court judges.

These cases highlight that public interest litigation aims to ensure justice and redress for those facing barriers to traditional legal avenues, promoting a more inclusive legal system. However, the courts also caution against abusing public interest litigation for frivolous or obstructive purposes. It should be used to effectively address societal concerns and promote justice.

Key Features of Judicial Activism in India

Indian judicial activism encompasses:

Expansive Interpretation of Fundamental Rights: Courts, especially the Supreme Court, interpret fundamental rights broadly to protect citizens’ liberties, including socio-economic rights.
Public Interest Litigation (PIL): The introduction of PIL allows citizens and organizations to represent marginalized individuals who can’t access justice, enhancing inclusivity.
Environmental and Social Justice: Courts address environmental and social issues, evident in cases related to environmental protection, child labor, bonded labor, and marginalized groups’ welfare.
Overseeing Executive Actions: Courts scrutinize executive actions to ensure transparency and accountability, issuing directives when necessary.
Guardians of the Constitution: The judiciary sees itself as the Constitution’s guardian, empowered to review and invalidate inconsistent legislative and executive actions.
Expanding Access to Justice: Judicial activism broadens access to justice for disadvantaged groups, empowering them to assert their rights effectively.

Judicial Activism and Fundamental Rights

In India, the judiciary has played a pivotal role in shaping fundamental rights jurisprudence by interpreting the “right to life and personal liberty” liberally. Landmark Supreme Court judgments have expanded the scope of these rights, including recognizing prisoners’ rights to access the courts, meet their families, and have freedom of speech. The judiciary has also affirmed the right to a healthy environment, applying the Precautionary and Polluter Principles for sustainable development and invoking the doctrine of public trust to protect natural resources.

The right to education, a fundamental right, has been upheld by the Supreme Court. It was declared that the right to education flows directly from the right to life and the dignity of an individual. The state is obligated to provide educational facilities to its citizens. Constitutional amendments and the Right of Children to Free and Compulsory Education Act, of 2009 have reinforced this right.

The judicial intervention has led to government directives for the rehabilitation of children of prostitutes and the prohibition of child labor in circuses to ensure the fundamental right to education. This includes freeing children through raids, providing shelter, and rehabilitation until they reach 18 years of age.

Judicial Activism Vs Judicial Intervention

In India, there has been an ongoing debate about judicial activism and intervention, with Parliament accusing the judiciary of overstepping its constitutional authority. The judiciary’s involvement in various issues has raised concerns about its boundaries. Some notable instances of judicial intervention include:

Prakash Singh v. Union of India: Petitioners sought directions to ensure the police’s independent functioning, free from pressure, and the separation of investigation from law and order.
Vineet Narain v. Union of India: The Supreme Court issued directives to enhance transparency and accountability in the Central Bureau of Investigation (CBI).
Swaraj Abhiyan-(I) v. Union of India & Ors.: The Supreme Court directed the Ministry of Agriculture to update the Drought Management Manual and establish a National Disaster Mitigation Fund. Concerns were raised about budgetary implications and judicial review.
National Judicial Appointments Commission (NJAC): The Supreme Court declared the NJAC Act and Constitutional Amendment unconstitutional, reinforcing the collegium system for judges’ appointments, emphasizing judicial independence.

The Supreme Court’s involvement in issues like the National Eligibility-cum-Entrance Test (NEET) and reforms in the Board of Control for Cricket in India (BCCI) has also been viewed as judicial intervention by the government.

While recognizing the need for self-regulation, the Supreme Court has emphasized that judges should understand their limits and not encroach on the domains of other state organs. However, it should be noted that judicial activism has played a crucial role in providing legal assistance and enforcing fundamental rights for marginalized groups and individuals.

Judicial Activism Examples

Judicial activism vs judicial review, judicial activism upsc.

Judicial activism refers to a proactive role taken by judges in interpreting and applying the law, often going beyond literal statutory interpretation to address broader issues of social justice, individual rights, and public interest. In India, the Constitution grants the judiciary the authority to review legislative, executive, and administrative actions, making it a guardian of fundamental rights. It has expanded access to justice, protected the environment, and overseen executive actions. However, judicial activism has faced criticism for potentially disrupting the separation of powers. In contrast, judicial review is a legal doctrine focused on ensuring government actions comply with the constitution, without judges actively shaping public policy.

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Judicial Activism FAQs

What is judicial activism.

Judicial activism is when judges take a proactive role in interpreting and applying the law, often going beyond the literal interpretation of statutes to address issues of social justice, individual rights, and public interest.

Who is the founder of judicial activism?

The term "judicial activism" was originally coined in 1947 by Arthur Schlesinger Jr., an American historian and educator. In India, the doctrine of judicial review was introduced in the mid-1970s.

Who is the father of judicial activism in India?

Justice P.N. Bhagwati is known as the father of judicial activism in India.

Which was the first case of judicial activism in India?

Indian judiciary explored constitutional and structural aspects in the 1970s, with early signs of activism evident in Keshavanand Bharti v. State of Kerala.

Is judicial activism related to PIL?

Yes, 'Judicial Activism' describes the Judiciary's role in initiating policies for justice, often via PIL, with the Supreme Court issuing orders.

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Judicial Activism: Empowering Rights & Impact on Democracy

Introduction to Judicial Activism: Laws for Social Justice and Individual Rights

Judicial activism refers to a proactive role of the judiciary in interpreting and shaping laws, often to advance social justice and protect individual rights. It involves judges taking an assertive stance , going beyond traditional interpretations to address societal issues . While it can enhance justice and accountability, critics argue that it may infringe upon the legislative or executive branches’ powers and disrupt the balance of power.

A Look at Democracy’s 70-Year Journey

The Constitution envisages a fair balance of roles and functions amongst different branches of the Government.
However, in our 70+ years’ march of the democratic caravan we have witnessed Activism by different branches at different points of time.
Judicial Activism is the current phenomenon.

Judicial Activism in India: The Role of Public Interest Litigation (PIL)

Judicial Activism has flourished in India mainly because of Public Interest Litigation (PIL) or Social Action Litigation (SAL).

Evolution of Judicial Activism: The Power of Public Interest Litigation (PIL)

Legal Remedies Pre-1979 :Till 1979, in normal course of law, an aggrieved person could move to the court of law if his rights have been violated.
As this case involved a consideration of public interest, such cases came to be known as Public Interest Litigations.
Expanding Horizons: It allowed any individual or organization to file a PIL in the High Court or the Supreme Court on behalf of those whose rights were being violated.
Rights of Prisoners: During this time, the Supreme Court also took cases with consideration of rights of prisoners and other cases which involved protection of existing rights, betterment of life conditions of the poor, protection of the environment, and other issues in the interest of the public.
Public Interest Advocacy: This was done because a large number of public-spirited citizens and voluntary organizations sought judicial intervention and hence PIL became the most important vehicle of judicial activism.
Proactive Judiciary: Since then, the judiciary began considering many cases merely on the basis of newspaper reports and postal complaints received by the court, and hence the term became to be used more popularly for the role of judiciary.

The Transformative Impact of Judicial Activism on Rights, Access, and Democracy

Expanding Rights: Through the PIL, the judiciary expanded the idea of rights such as clean air, unpolluted water, decent living etc.
It has forced executive accountability.
Hence, it may be creating strains on the democratic principles.
The court also made an attempt to make a free and fair electoral system in India, by asking the candidates contesting elections to file affidavits indicating their assets and income along with educational qualifications.

Examining the Issues of Judicial Activism

It is overburdening the courts with a large number of PILs.
The court has been considering cases and issues which belong to the executive.
For example , cases dealing with reducing air or sound pollution, corruption, electoral reforms etc.

Judicial Activism in India represents a dynamic force, catalyzing societal progress and individual rights through proactive judicial interventions. While instrumental in expanding rights, ensuring executive accountability, and fostering a more inclusive democracy, it navigates a complex landscape. The delicate balance between empowerment, democratic values, and institutional dynamics underscores the evolving role of the judiciary in shaping India’s legal landscape.

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JUDICIAL ACTIVISM IN INDIAN DEMOCRACY

2022, IASET

The scope of judicial activism not a limited one. It is used to look in the matters and enforce what is beneficial for the society at large. The word "JUSTICE" has no end, this critically tells that justice is for all, 'rich or poor, strong or weak', even the king and queen were entrusted by karma to provide justice. The object behind the research paper is focused on the expansion of judicial activism in Indian democracy. The judicial activism in India had touched almost every aspect of life to provide positive justice. Many a times the right to judicial review and judicial activism act as a boon for the weaker section of society in protecting their rights by mere filling of a social interest litigation or a public interest litigation. Many a time, judicial intervention into the matter of executive and legislature has provided society with the upper hand in getting justice. Judicial system is a means of providing 'JUSTICE 'to all, and also to take all relevant and possible steps to protect the interest of JUSTICE. Judicial activism legal framework in Indian constitution integration towards fundamental rights.

Related Papers

Human Rights and Judicial Activism in India

Dr. Ausaf A H M A D Malik

HUMAN RIGHTS can be defined as rights inherent in all over the world, without which we cannot live as human beings. Everyone is entitled to these rights without discrimination on the ground of race, sex, nationality, religion and language etc. In this paper the researcherdeals that judiciary play vital role to protect human rights in the Indian. This article attempts to analyze the role of justice and judicial action in protecting Human rights. After independence, India played a very important role in protecting these rights. India has not made any effort to translate it into reality, so it has not incorporated the detailed Bill of Rights into its constitution. The judiciary in India has played a key role in turning these rights into reality. Consequently, the court has adopted all legislative, administrative and judicial or quasi-judicial agencies within the scope of the law, acting as the supreme interpreter, protector and guardian of the constitution. The judiciary has the responsibility to review all government actions. Undoubtedly, in a constitution with provisions to protect the basic rights of the people, the judiciary has the power and obligation to protect the rights of the people from any improper and unreasonable infringement.

Remarking An Analisation

Mohammad Haroon

The Constitution of India has enabled the Judiciary to review the actions taken by the legislature and Executive. This idea made the Judiciary very powerful and active to look into any kind of problem harming the legal system. Although Seventeen General Elections in the country have been conducted successfully, but some unwelcomed incidents like abuse of administrative machinery, use of black money, communalism, fascism and many other corrupt practices in contesting election noticed during these elections. It made the Judiciary alert to keep the political system free from criminality, communalism, and corruption and keep it updated to meet the needs of modern democracy. Firstly this paper is aimed to conceptualize the idea of ‘Judicial Activism in India which made the Judiciary more capable to reform the political system of the country, secondly, it tries to explore the efforts of the Judiciary made to reform the political system in the country.

The International Journal of Human Rights

Payel Chowdhury

Puneet Pathak

Although the debate on the judicial activism has been around since the days of Blackstone and Bentham.Thetraditional role of the judge has always been considered as that of an impartial arbitrator who hears the argument of both parties and renders justice without interfering in the debate of the matter. The changing attitude of the Supreme Court of India in its journey from Supreme Court of India to Supreme Court for Indians which shed their character as upholders of the established system legitimised the expending role of judiciary from mere arbitrator to a catalyst of social change and full fill the vacuum created due to passiveness of other organs of the government. The landscape of recent verdicts of Supreme Court clearly evident that it not only makes law in the sense of the realist jurisprudence but actually has started legislating exactly as the legislature legislates. In this background the paper intended to insights into the metamorphosis of judicial activism in India.

The Howard Journal of Criminal Justice

Arvind Verma

BOUNDARIES AND CHANGING PERSPECTIVES ON JUDICIAL ACTIVISM IN INDIA: A CRITICAL LEGAL ANALYSIS

Prof.(Dr.) Priya Sepaha

This research paper aims to analyse the concept of judicial activism in India comprehensively. It explores the evolution of judicial activism, its changing perspectives, and its implications for the Indian legal system. Judicial activism is characterised by judicial decisions that go beyond the mere interpretation of laws to shape public policy, and it has been a prominent feature of Indian jurisprudence. However, the boundaries of judicial activism have often been debated and critiqued. This paper critically analyses the evolution of judicial activism in India, its impact on the separation of powers, and its role in shaping the socio-political landscape. Additionally, the research evaluates the changing perspectives of the judiciary and society regarding judicial activism and its implications for the Indian legal system.

Rex Journal

With the framing of the Constitution of India, the three wings of effective governance came into being, namely the legislature, the executive and the judiciary. The Constitution provides for separation of powers and hence demarcates the powers and areas of all these three machineries. However sometimes with the failure of the legislature and the executive, the separation of power remains a theory only in the text book and the third wing of governance, the judiciary assumes powers unprecedented for under the name and guise of judicial review, which is a very basic feature of the Constitution of India. The Indian judiciary has taken upon itself the task of ensuring maximum freedom to the masses and in the process, to galvanize the executive and the legislature to work for public good. However, this changing stance of the judiciary from moderate to active role has invited wrath from some sections of the society, criticism from some others and support and cheers from still other sections. Some political scholars feel that the judiciary is usurping powers in the name of public interest (Rajinder Sacher, 1999), while according to others, judicial activism and interference is actually preventing the executive from going astray

JAI MAA SARASWATI GYANDAYNI AN INTERNATIONAL MULTIDISCIPLINARY E JOURNAL International Journal peer reviewed, open access, online journal publish quaterly e journal

In today's context judicial activism is playing very vital and important role to protect and preserve the Fundamental Rights, Human Rights and Other Rights. It is one of the main instruments as the most effective remedy of the Hon'ble apex Court and High Courts of states. Hon'ble Supreme Court under article 32 and High Courts under article 226 of

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Judicial Activism in India

Introduction.

The judicial system of any nation plays an important role in upholding and promoting the rights of the citizens. In India, it is an independent body that is unbiased and works within the limit of the Constitution. It interprets the Constitution and strikes down any that is not in conformity with it. The Supreme Court of India is the highest judicial authority in the country and protects the Fundamental Rights of the citizens . Judicial activism is an approach to the power of judicial review , where the judge is concerned with the constitutional issues in a particular case.

The term “ Judicial Activism” can have different meanings, but usually, it connotes the philosophy behind delivering a particular decision. Black’s Law Dictionary defines judicial activism as a theory of judicial decision-making through which judges attach their personal opinions on public policy, among other aspects, to direct their decisions.

Judicial activism is a term associated with the reasoning and prudence of the judges over political or personal issues, instead of the issue at hand. It denotes the revision of a judgement of an inferior court by a superior court, or judicial review of judicial actions. On the other hand, judicial review of legislative or executive actions more often than not draws controversy since it is stronger and more vocal.

Origin and Development of Judicial Activism

The concept of judicial activism originated in the United States when Arthur Schlesinger Jr. introduced the term in 1947, in an article in Fortune Magazine . Even before the term could actually be named, the concept already existed, and had been controversial ever since. In the U.S., judicial review of legislation was popular in terms of American constitutional law. Even though the American constitution does not call for striking down of a law by the Supreme Court in case it is violative of the same, Chief Justice Marshall, in Marbury v. Madiso n [1] , held that such power was implied, ultimately getting criticized. In India, it came to light much later, because for a long time, the Indian judiciary stuck to their orthodox approach towards the concept. After independence, the tussle between the two organs of the State, the executive and the judiciary, brought forth the concept, thereby giving it momentum.

The first decade following independence was absent in judicial action. The Supreme Court examined the Constitution of India between the 1950s and the 1970s, leading to the first few cases ever to come up where judicial activism was exercised in India, such as those of Hussainara Khatoon v. State of Bihar [2] , Olga Telis v. Bombay Municipal Corporation [3] , M. C. Mehta v. Union of India [4] , etc. An earlier case of Golak Nath v. State of Punjab [5] had also sparked some debate, where the Supreme Court held that the constitutional rights mentioned under Part III of the Constitution of India could not be modified. The decision of Golak Nath [6] was however, overruled by the Supreme Court, in Kesavananda Bharati v. State of Kerala [7] , but it maintained that the constitutional framework regarding Part III of the Indian Constitution could not be changed.

In certain cases, such as that of Vishaka v. State of Rajasthan [8] , the Supreme Court went a step ahead to formulate rules and regulations, somewhat assuming the role of the legislature.

Three-fold Intervention

Judicial activism can be three-fold in India:

The superior courts in India have the power to declare any act, law, or statute as unconstitutional, if it goes against the basic structure of the Constitution .
Any previous decision of any court, can be overruled by a court subsequently, if it is felt that the previous judgement was violative of the Constitution in any way.
The superior courts also have the power of reading and interpreting the Constitution, and ascertaining the meaning of the same, in order to facilitate the formulation of laws and policies.

The judiciary has been kept independent of the other two organs of the State, which implies that it is under no obligation from either the legislature or the executive, and can declare a law as void and unconstitutional. The power of judicial review, granted to the Supreme Court of India under Article 32 of the Constitution , and to the high courts under Article 226 , is immense and cannot be abridged or taken away by the Parliament.

Present Trends of Judicial Activism in India

The courts today are no more passive. Merely declaring a law as void or striking it down does not fill the gap anymore. Instead, courts have taken a more affirmative approach, where they issue orders and decrees which direct remedial actions. According to an Indian citizen, the executive and the legislature have failed in their duties towards the public, and thus, are made accountable for their actions by the judiciary. It is felt that the administration has become so dispirited that the people have no option but to knock the gates of courts for redressal of their grievances. The inclination and trust towards judiciary has further strengthened because of Public Interest Litigation , or PIL, granting access to have-nots and the disadvantaged groups. The introduction of PIL in 1977 and the post-emergency period marked a new age in judicial activism in India, with several cases of violation of fundamental rights were registered, but the courts have still kept a low profile, in order to avoid clashes between the different organs of the State.

Criticism of Judicial Activism in India

Indeed, such an extensive power of the judiciary draws criticism generally, and it no doubt maintains a check on the judiciary itself, but the courts themselves are well aware of their limitations. The Supreme Court, in P. Ramachandran Rao v. State of Karnataka [9] , observed that the Court did not consider itself as an ‘imperium in imperio’, or that it would function as a despotic organ of the State. Even the Indian Constitution does not mandate a rigid separation between the different organs or powers of the state, namely, the legislature, executive and judiciary, but defines their powers and limits. This was taken into account by the Supreme Court in State of Kerala v. A. Lakshmi Kutty [10] , wherein it held that it was the responsibility of the judges to not encroach upon the powers of the other organs of the state and stay well within their limits.

Of course, judges cannot be legislators; they cannot be allowed to perform the role of the administration because neither do they have the required wisdom nor the permission of the Constitution to do so. It often happens that while interpreting the Constitution, the judiciary may rewrite or change the meaning of a provision entirely, which then go on to become permanent in the form of legal principles. Any field left open and unoccupied by the legislature may be touched by the judiciary, but the definite areas should not be entrenched upon. The line is fine but it does exist. [11]

Exercise of excess power by the judiciary will not bear good results for a democracy, primarily because the judiciary is not accountable to the general public in the manner the legislature or executive is. The actions of the legislature and the executive, however, are subject to scrutiny and judicial review when there is injustice – social, political or economic – or violation of the provisions of the Constitution. The independence of the judiciary is a power in itself, which can be seen from the fact that when the legislature makes laws in contrary to the Constitution, the judiciary has the power to examine it, but if a judge or a bench exceeds its power, only a larger bench of the judiciary can intervene in the matter. Even the removal of judges is a difficult task, which is through impeachment.

But it must be kept in mind that the activism of the judiciary or judicial activism is a need in a country like India, where the citizens have lost all hopes from the rulers. Judicial activism is also important because sometimes, there comes a case where people are keen to know the stance of the judiciary, and at what level is justice put in the hierarchy of power. Such a case, if decided judiciously, opens new doors and windows for future decisions and laws. Judicial creativity should be promoted, but its limits should be defined.

[1] 5 U.S. (1 (Cranch) 137 (1803).

[2] 1979 AIR 1369.

[3] AIR 1980 SC 180.

[4] (1987) 4 SCC 463.

[5] 1967 AIR 1643.

[7] (1973) 4 SCC 225.

[8] (1997) 6 SCC 241.

[9] (2002) 4 SCC 578.

[10] (1986) 4SCC 632.

[11] Supra note 9.

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Landmark Cases on Judicial Activism in India | Indian Polity for UPSC CSE PDF Download

Introduction.

The early cases of judicial activism in India are significant milestones in the country’s legal landscape. These cases reflect the judiciary’s proactive role in interpreting and safeguarding constitutional principles. Here is an overview of some of these critical cases:

Cases on Judicial Activism in India

1. privy purse case (madhav rao jivaji rao scindia v. union of india, 1970).

The case revolved around the president’s authority to de-recognize princes and abolish their petty purses. The Court ruled that executive power, as per Article 53 of the Constitution, must be exercised “in accordance with the law”. It could not be used to destroy the Constitution. The act of “de-recognizing” rulers without providing for the continuation of their rule was declared illegal.

2. R C. Cooper v. Union of India (1970)

This case questioned the legislative competence of Parliament to enact the Banking Companies (Acquisition and Transfer of Undertakings) Act, known as the Bank Nationalization Act. The court struck down the Act due to its unreasonableness, as it effectively made it impossible for the banks to carry on any business.

3. Golaknath v. State of Punjab (1971)

The case dealt with the constitutional validity of the 17th Amendment to the Constitution and introduced the concept of “prospective overruling.” The court held that Parliament could not amend Part III of the Constitution or abridge fundamental rights.

4. Keshavananda Bharti v. State of Kerala (1973)

The case focused on the extent of the amending power under Article 368 of the Constitution. The court introduced the theory of the “basic structure,” asserting that Parliament could amend the Constitution but not abrogate its basic structure.

5. VC Shukla v. Delhi Admin. (1980)

This case examined the legislative competence of the state to establish special courts for high public office offences. The court upheld the validity of such courts and clarified that the “basic structure” theory applied only to constitutional amendments, not ordinary laws.

6. Bhagalpur Blinding Case (Khatri (II) v. State of Bihar, 1980)

The court ruled that Article 21 included the right to free legal aid for people experiencing poverty and the right to legal representation. It emphasized the need to produce arrested individuals before a magistrate within 24 hours.

7. Fertilizer Corporation v. Kamgar Union v. Union of India (1981)

The court held that the sale of a public enterprise’s plant and machinery, resulting in retrenchment, did not violate Article 19(1)(g) rights. It clarified the jurisdiction of the Supreme Court under Article 32.

8. V. Vaitheeswaran v. State of TN (1981)

These cases addressed the delay in executing the death sentence. While the former allowed commutation after a two-year delay, the latter overruled this view, considering the convict’s conduct.

9. Judges Transfer Case (S. P. Gupta v. Union of India, 1983)

The court clarified the meaning of “consultation” in Article 124(2) and asserted executive supremacy in judicial appointments. This view was later overruled in S.C. Advocates-on-Record Association v. Union of India (1993) to ensure judicial supremacy in such appointments.

10. R. Antulay v. R. S Nayak (1984)

In a case involving prior sanction for prosecuting a public servant, the court clarified that an MLA was not considered a ‘public servant’ under the relevant clauses due to the source of remuneration. These cases laid the foundation for judicial activism in India, highlighting the judiciary’s vital role in interpreting and upholding constitutional principles and rights.

The PIL Era: A Peak in Judicial Activism in India

In the era of public interest litigation (PIL), several judges, such as V. R. Krishna Iyer, P. N. Bhagwati, Chinnappa Reddy, and D. A. Desai, played pivotal roles in shaping judicial activism in India. During this period, we witnessed a shift in the locus standi rule, expanding access to justice. Initially conceived to empower the disadvantaged, PIL aimed to relax the stringent requirements of locus standi.

Hussainara Khatoon v. State of Bihar (1979): A Turning Point

The Supreme Court’s first PIL action addressed the plight of prisoners awaiting trial who had languished in jails for extended periods.

The court issued directives to relieve these prisoners, marking the beginning of PIL’s prominence.

Sunil Batra v. Delhi Admin. (1980)

The Supreme Court delivered a historic judgment in the case of Sunil Batra vs. Delhi Administration in 1978. The judgment expanded the scope of prisoners’ rights and laid down guidelines to prevent custodial torture and protect the dignity of prisoners. The court recognized that prisoners, despite their conviction, retained fundamental rights and should be treated humanely.
The case had a significant impact on prison reforms and the treatment of prisoners in India. It led to the formulation of guidelines and directives to safeguard the rights of prisoners, ensuring their protection from inhumane treatment and torture.

Sheela Barse v. Union of India (1983)

Sheela Barse’s PIL addressed the deplorable conditions faced by women prisoners, particularly those who were pregnant or had young children living with them in jails. Her petition highlighted the lack of basic amenities, inadequate healthcare, and the absence of facilities for children in prisons. She sought the court’s intervention to improve the living conditions for incarcerated women and their children.

The Supreme Court, in response to Barse’s PIL, issued several directives and guidelines to ensure the protection of the rights of women prisoners and their children. The court emphasized the need for better healthcare, nutrition, education, and other essential facilities for both mothers and their children living in jails.

Judicial Activism and Environmental Jurisprudence

The growth of environmental jurisprudence in India owes much to PIL cases and the judiciary’s activist approach. Fundamental principles and doctrines emerged in this context, focusing on sustainable development and the polluter-pays principle.

The Oleum Gas Leak Case

The Supreme Court expanded its authority under Article 32 and established the doctrine of absolute liability for damages brought about by hazardous industries. The court incorporated principles from international agreements like the Stockholm Declaration, the Rio Declaration, and the Kyoto Protocol. Additionally, Fundamental principles such as “sustainable development” took root in Indian environmental jurisprudence.

Narmada Bachao Andolan

The court ensured that dam construction did not harm displaced people’s employment, shelter, or homes. State governments were directed to provide rehabilitation before proceeding with development projects.

The Importance of Judicial Restraint

In maintaining the delicate balance of power in a democracy, the judiciary has highlighted the need for judicial restraint. Justice Markandey Katju’s perspective underscores the importance of maintaining a separation of powers.

As per the judge, the judiciary, legislature, and executive each have distinct spheres of operation under the Constitution. Judicial restraint is crucial to preventing encroachment upon the domain of other branches and fostering equality among them. He further opines that judicial restraint safeguards the independence of the judiciary, preventing it from becoming embroiled in political and administrative processes.

The distinction between judicial activism and judicial overreach is vital for the effective functioning of a constitutional democracy. Recognizing and maintaining this boundary ensures the separation of powers and the supremacy of the Constitution.

In conclusion, judicial activism is a double-edged sword. When wielded with wisdom and prudence, it can be a force for positive change, upholding the values of justice, liberty, and equality. However, it must always be tempered with restraint, guided by a deep sense of responsibility, and mindful of the Constitution’s spirit. Only through this careful balance can judicial activism genuinely serve the cause of justice and contribute to the flourishing of democratic societies.

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Judicial activism in india: origins, meaning, causes and course.

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Judicial Activism in India: Origins, Meaning, Causes and Course!

Its emergence can be traced back to 1893, when Justice Mahmood of Allahabad High Court delivered a dissenting judgement.

It was a case of an under trial who could not afford to engage a lawyer, So the question was whether the court could decide his case by merely looking his papers, Justice Mahmood held that the pre-condition of the case being “heard” would be fulfilled only when somebody speaks.

As to its meaning, Judicial Activism is not a distinctly separate concept from usual judicial activities. The word ‘activism’ means “being active”, ‘doing things with decision’ and activist is the ‘one’ who favours intensified activities. Justice Krishna Iyer observed ‘every judge is an activist either on the forward gear or on the reverse’.

Judicial policy making can be either an activity in support of legislative and executive policy choices or in opposition to them. But the latter one is usually referred to as judicial activism. The essence of true judicial activism is the rendering of decision which is in tune with the temper and tempo of the times.

Activism in judicial policy making furthers the cause of social change or articulates concepts such as liberty, equality or justice. It has to be an arm of the social revolution. An activist judge activates the legal mechanism and makes it play a vital role in socio-economic process.

Causes of Judicial Activism :

The following trends were the cause for the emergence of judicial activism — 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.

Course of Judicial Activism :

In the first decade of independence, activism on part of the judiciary was almost nil with political stalwarts running the executive and the parliament functioning with great enthusiasm, judiciary went along with the executive. In the 50s through half of the 70s, the apex court wholly held a judicial and structural view of the constitution.

In the famous Keshavananda Bharati case, two years before the declaration of emergency, the Supreme Court declared that the Executive had no right to tamper with the Constitution and alter its fundamental features. But it could not avert the emergency declared by Mrs. Gandhi and it was only at the end of it that the apex court and the lower courts began to continuously intervene in executive as well as legislative areas.

The first major case of judicial activism through social action litigation was the Bihar under trials case. In 1980 it came in the form of a writ petition under article 21, by some professors of law revealing the barbaric conditions of detention in the Agra Protective Home, followed by a case against Delhi Women’s Home filed by a Delhi law faculty student and a social worker. Then three journalists filed a petition for the prohibition of the prostitution trade in which women were bought and sold as cattle.

Taking cognisance of custody deaths Supreme Court ordered the police not to handcuff a man arrested purely on suspicion, not to take a woman to the police station after dusk. High Court judges visited the prisons to check the living conditions of prisoners, in the year 1993, in just a month the apex court proclaimed judgment protecting the rights of innocents held in Hazaratbal mosque in Srinagar, defining the constitutional powers of the Chief Election Commissioner, threatening multi-crore rupees industries with closure if they continued to pollute the Ganga and Taj Mahal and brought all government and semi government bodies under the purview of the Consumer Protection Act.

In a 1994, judgement it asked the Chief of Army Staff to pay Rs. 6, 00,000 to the widow and two children of an army officer who died due to the callousness of the authorities concerned some 16 years before.

The controversial 27% reservation of jobs in Central Government and public sector undertakings was referred to the Supreme Court by the Rao Government. The court decision favoured 49% of jobs for backward castes and class but the ‘creamy layers; were exempted from this reservation. Similarly the court put a curb on the operation of capitation fee in colleges in Karnataka.

The Supreme Court giving directions to the CBI and summoning the head of the CBI to report on the hawala case reveals the breakdown of other machineries of the government. The court interference with the CBI working became inevitable in the wake of the tactics of delay and technical evasion that was undertaken by the investigative agencies.

Judicial Activism: its Role in the Context of the Functioning of Indian Polity
Judicial Review in India: Meaning, Features and Other Details

Judicial Activism

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Judicial Activism

A judiciary is an independent body that is evenhanded, unbiased, and unprejudiced. It functions within the framework of the constitution, defined under the concept of the separation of powers. It interprets the constitution which is supreme and at times needed, supports the rule of law and the standards laid down in the constitution. The Supreme Court of India is considered the sentinel qui vie and protects the fundamental and constitutional rights of the people. Judicial Activism means the rulings of the court based on political and personal rational and prudence of the Judges presiding over the issue. It is a legal term referring to court rulings based, in part or in full, on the political or personal factors of the Judge, rather than current or existing legislation. According to Black's Law Dictionary judicial activism is a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions. The judicial activism was evolved through the process of judicial review which can be pursued from the unwritten constitution of Britain during the period of Stuart (1603-1688). In the year 1610, the power of Judicial Review was acknowledged for the first time in Britain through the activism of Justice Coke. The then Chief Justice Coke stated that if a law made by Parliament breached the principles of common law ; and ‘reason , then it could be reviewed and adjudicated as void by the judiciary. Judicial activism in India implies the authority of the Supreme Court and the high courts, but not the subordinate courts, to declare the regulations unconstitutional and void if they breach or if the legislation is incompatible with one or more of the constitutional clauses. According to SP Sathe , a court giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court. The Supreme Court of India in its initial years was more a technocratic court but slowly began to become more active through constitutional interpretation. The court became an activist through its involvement and interpretation of law and statutes but the whole transformation took years and it was a gradual process. The origins of Judicial activism can be seen in the court's premature and early assertion regarding the essence and nature of Judicial Review. India's Judicial activism can be positive as well as negative:

A court engaged in altering the power relations to make them more equitable is said to be positively activist and
A court using its ingenuity to maintain the status quo in power relations is said to be negatively activist.

Judicial activism reflects the suggested patterns in the administrative namely: expansion of hearing privileges over administrative lapses, extension of judicial control over discretionary forces, expansion of judicial review over the administration, and extending the conventional translation guidelines in its quest for financial, cultural and academic goals. Course of Judicial activism After the independence, judicial activism was almost silent for the first decade; the executive and legislative organs of the government actively dominated and intervened in the working of the judiciary. It was in 70s the Apex court started viewing the judicial and structural view of the constitution. In the landmark Keshwananda Bharti case , just two years before the emergency declaration the apex court of India declared that the executive had no right to intercede and tamper the basic structure of the constitution. Though the exigency imposed by the then Prime Minister Indira Gandhi could not be prevented by the Judiciary, the concept of judicial activism started gaining more power from there. In I. C. Golaknath & Ors vs State Of Punjab & Anrs. the Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the legislative assembly. Landmark cases of Judicial Activism In Hussainara Khatoon (I) v. State of Bihar , the inhuman and barbaric conditions of the undertrial prisoners reflected through the articles published in the newspaper. Many prisoners who were under trial had already served the maximum persecution without being charged for the offense. A writ petition was filed by an advocate under article 21 of the Indian Constitution. The apex court accepted it and held that right to speedy trial is a fundamental right and directed the state authorities to provide free legal facilities to the under-trial inmates so that they could get justice, bail, or final release. Another important case Sheela Barse v. State of Maharashtra, a letter written by a Journalist was addressed to the Supreme Court avouching the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognizance of that matter and issued the apposite guidelines to the concerned authorities of the state. In Sunil Batra v. Delhi Administration, the court exercised its epistolary jurisdiction, and a letter written by a prisoner was treated as a petition. The letter supposed that the head warden atrociously inflicted pain and assaulted another prisoner. The Court stated that the technicalities cannot stop the court from protecting the civil liberties of the individuals. Some instances when the mechanism of Judicial Activism turned to the Judicial overreach. The parliament of India has held responsible or accused the Judiciary for intervening and overreaching its constitutional powers. In the Supreme Court Advocates-on-Record Association v. Union of India , the National Judicial Appointments Commission (NJAC) Act, and the constitutional amendment was declared unconstitutional by the Apex court and the judgment was delivered with the majority of 4:1. The act was declared unconstitutional as it was violating the judicial independence. And the existing collegium system pertaining to transfer and appointment of judges again came in the operation. Justice Khehar said, the absolute independence of judiciary, from other organs of governance, protects the rights of the people. Lodha Committee report on the Board of Control for Cricket in India The Supreme Court established the Lodha Panel amid accusations of Indian cricket corruption, match-fixing, and betting controversies. In an effort to bring law and order back into the BCCI, the committee was set up. The committee recommended some points such as BCCI should come under RTI, cricket betting should be made legal, and only the bodies that represent states should have the voting rights while teams such as Railways and Services should be given the status of associate members without any voting rights. But these recommendations were treated as Judicial overreach as BCCI is an independent body not controlled by any state or central govt. so the Lodha committee has no authority to declare such recommendations. In Christian Medical College, Vellore & Others versus Union of India and Others The Supreme Court barred the states from conducting separate entrance exams for medical courses and ruled that undergraduate admissions to medical courses can only be done through the NEET. The rulings of the Supreme Court on the National Eligibility-cum-Entrance Test (NEET), i.e., the single exam for admission to medical colleges, the reformation of the Board of Cricket Council in India (BCCI), the filing of the post of judge, etc were regarded by the government to be the Judicial Intervention. In Swaraj Abhiyan-(I) v. Union of India & Ors ., the Apex court instructed the Ministry of Agriculture of the Union of India to update and amend the Drought Management Manual. he apex court also guided the state to constitute a National Disaster Mitigation Fund within three months. On this, the then Finance Minister Arun Jaitley said: We have the National Disaster Response Fund and the State Disaster Response Fund and now we are being asked to create a third fund. The appropriation bill is being passed. Now outside this Bill, we are being told to create this fund. How will I do that? India's budget-making is being subject to judicial review. Step by step, brick by brick, the edifice of India's legislature is being destroyed. This was the response of the legislature on the overreaching the constitutional powers by the judiciary. The judiciary sometimes has tried to regulate itself and put some constraints on its powers whenever it is required. The Supreme Court in Divisional Manager, Aravali Golf Course v. Chander Haas observed that: Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State-the legislature, the executive and the judiciary- must have respect for the others and must not encroach into each other's domains. Conclusion Therefore, in a nutshell, I would like to say that the concept of judicial activism has both positives and negatives. If the judiciary intervenes too much in the working of other organs of the government and tries to overreach the constitutional powers then this concept of judicial activism loses its importance and essence. Sometimes in the name of activism, the judiciary often rewrites personal views in the name of activism, power separation theory is being overthrown. While judicial activism is deemed favorable in addition to the legislative's failures, overreaching the domain of the other organs of the government is regarded as an interference into the appropriate workings of democracy. Its significance, however, lies in the institution's role as a place of hope for aggrieved individuals. The role of Judicial Activism cannot be negated or overlooked as it played a significant role in providing justice to the underprivileged sections of the society, indigent individuals, socially and educationally backward classes, victims of trafficking and under trial prisoners. Proper implementation of fundamental rights could only become possible due to the advancement of Judicial Activism. There is a narrow demarcation between activism and overreach. Sometimes in the process of judicial activism, the judiciary intervenes too much and reflects its personal beliefs in the course of providing justice. The interpretation of law which is the primary function of judiciary but the courts rather than interpreting the law start making the law, issue guidelines and directions which is to be done by the legislature. Due to judicial overreach, conflict takes place between the legislative and judiciary, and the legislative seems to be inactive or less competent to the people. Besides this, the separation of powers on which the democracy stands is killed by the judicial overreach. An activist court is certainly far more efficient than a legal positivist-conservative court to safeguard humanity from legislative and executive tyranny. When the elected representatives fail to create a welfare state then the role of judiciary becomes indispensable but the judiciary cannot intervene in the state affairs just to show its supremacy.

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How to self-evaluate your answer , mission – 2023: yearlong timetable, join ipm 4.0 to get an assured review of 2 secure answers everyday, general studies – 1.

Topic: Salient features of Indian Society, Diversity of India.

1. Diverse and inclusive educational institutions ensure that opportunities are accessible to all individuals, regardless of their background. This inclusivity allows people to fully utilize their talents and skills. Elucidate. (250 words)

Difficulty level: Tough

Reference: Live Mint , Insights on India

Why the question: The article highlights that latest available data from the All India Survey on Higher Education (AISHE) under the ministry of education from academic year 2021-22 shows that 43.2 million students are enrolled in the system, having grown at 4.1% compounded annual growth rate (CAGR) over nine years from 30 million in 2012-13. Key Demand of the question: To write about the ill effects of social divisions in educational institutes, reasons for its prevalence and ways to overcome it. Directive word: Elucidate – Give a detailed account as to how and why it occurred, or what is the context. You must be defining key terms wherever appropriate and substantiate with relevant associated facts. Structure of the answer: Introduction: Begin by giving context. Body: First, write about the reasons for the prevalence of social divisions in educational institutes of India and factors behind it. Next, mention the impact of social divisions and how it is affecting contemporary society. Substantiate with facts and examples. Next, write about the steps that are needed to overcome the above issues and empower weaker sections making educational institutes inclusive of diversity. Conclusion: Conclude by writing a way forward.

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Topic: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

2. The process of judicial review should be robust, prompt, and clear when dealing with obviously unconstitutional or divisive statutes. This ensures the protection of constitutional rights, minimizes harm from potentially damaging laws, and provides clear legal precedents. Analyse. (250 words)

Difficulty level: Moderate

Reference: The Hindu

Why the question: The article discusses that the Supreme Court of India will, sooner or later, consider the question whether the Citizenship (Amendment) Act (CAA) and the rules under it can pass constitutional scrutiny. Key Demand of the question: To write about the importance of judicial review and ways to make it clearer and robust. Directive word: Analyse – When asked to analyse, you must examine methodically the structure or nature of the topic by separating it into component parts and present them in a summary. Structure of the answer: Introduction: Begin by defining judicial review. Body: First, write about judicial review and its importance – part of basic structure of the constitution, empowers the judiciary to review the actions of the executive and legislative branches, trike down laws or executive actions that are found to be unconstitutional etc. Cite examples to substantiate. Next, write about ways to make it clearer and more robust- balancing judicial activism with restraint, resource constraints, complex legal questions, and political pressures etc. Conclusion: Conclude by writing a way forward.

Topic: Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

3. The POCSO Act has made a substantial impact in addressing child sexual abuse in India, providing a robust legal framework and promoting a victim-centric approach. However, to maximize its effectiveness, several reforms are needed. Analyse. (250 words)

Reference: Indian Express , Insights on India

Why the question: The article discusses that for at least the second time this year, the judiciary’s understanding of the POCSO Act and its provisions on child sexual abuse material (CSAM, more widely referred to as child pornography) has come under the scanner Key Demand of the question: To write about the impact of the POCSO act and reforms needed in it. Directive word: Analyse – When asked to analyse, you must examine methodically the structure or nature of the topic by separating it into component parts and present them in a summary. Structure of the answer: Introduction: Begin by giving aims and objectives of POCSO act. Body: First, mention the role of POCSO act in addressing Child abuse and historical child sexual abuse; it refers to incidents that are reported late. Discuss the causative factors of it. Institutional hurdles in accepting Historical Child Abuse. Next, mention the challenges associated with the Act and recommend reforms that are necessary to overcome it. Conclusion: Conclude by writing a way forward.

Topic: Important aspects of governance, transparency and accountability, e-governance applications, models, successes, limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.

4. India is making strides towards adopting the Environmental, Social, and Governance (ESG) model. However, challenges related to developmental priorities, diversity, and regulatory enforcement need to be addressed. Analyse. (250 words)

Reference: Indian Express , investopedia.com

Why the question: The most worrying critique of ESG is that by promoting it as a pious talisman, companies and governments may be avoiding hard decisions necessary to confront and overcome climate change, rising inequality. Key Demand of the question: To write about ESG and India’s readiness in adapting it. Directive word: Analyse – When asked to analyse, you must examine methodically the structure or nature of the topic by separating it into component parts and present them in a summary. Structure of the answer: Introduction: Begin by defining ESG Body: First, write about the various features of ESG and the benefits associated with it. Next, write about the readiness of India to adopt ESG – mention areas which it can and mention areas which it cannot. Also mention how India can adopt ESG and still achieve its developmental objectives. Conclusion: Conclude with a way forward.

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Topic: Conservation, environmental pollution and degradation, environmental impact assessment

5. Acid rain has wide-ranging adverse impacts on the environment, human health, infrastructure, and the economy. Explain. (150 words)

Difficulty level: Easy

Reference: Insights on India

Why the question: The question is part of the static syllabus of General studies paper – 3. Key Demand of the question: To explain the adverse impacts of acid rain. Directive: Explain – Clarify the topic by giving a detailed account as to how and why it occurred, or what is the context. You must be defining key terms wherever appropriate and substantiate with relevant associated facts . Structure of the answer: Introduction: Begin the defining acid rain. Body: Frist, in brief explain first the major reasons behind the occurrence of acid rains. Next, discuss that acid rains are harmful for both biotic and abiotic elements. it corrode the surface and rendered it riddled with hole. Yellowing of marble and lime stone and other such delicate surface gets destroyed. It is also harmful for textile and metals as it reduce their quality and make them weak. Moreover it makes the soil acidic and reduces the fertility. Next, discuss what needs to be done. Highlight the efforts of the government in this direction Conclusion: Write a way forward to mitigate the impact of acid rain.

General Studies – 4

Topic: Human Values – lessons from the lives and teachings of great leaders, reformers and administrators;

6. What does this quote means to you? (150 words)

“Knowing yourself is the beginning of all wisdom.” ― Aristotle

Why the question: The question is part of the static syllabus of General studies paper – 4. Structure of the answer: Introduction: Begin by explaining the literal meaning of the quote. Body: Write about being knowing oneself, self-awareness and its importance in developing character. Elaborate upon how being honest with oneself results so many benefits for individual morality. Substantiate with examples. Conclusion: Summarise by highlighting the importance of the honesty in the present day.

7. What does this quote means to you? (150 words)

“Education without values, as useful as it is, seems rather to make man a more clever devil.” ― C.S. Lewis

Why the question: The question is part of the static syllabus of General studies paper – 4. Structure of the answer: Introduction: Begin by explaining the literal meaning of the quote. Body: Elaborate upon the quote and mention the role of value education in making a person ethical. Mention the ways in which education shapes up ethics. Cite examples to substantiate. Next, write about the counter view that education can also be devoid of ethics and its consequences. Substantiate with examples. Conclusion: Summarise by highlighting the importance of the quote in the present day.

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Erin Brockovich and the Landmark Case against PG&E

This essay is about the Erin Brockovich case against Pacific Gas and Electric Company (PG&E), highlighting her efforts to expose the contamination of drinking water in Hinkley, California. Erin Brockovich, a legal assistant, discovered that PG&E had been discharging hexavalent chromium into unlined ponds, leading to severe health issues in the local community. Her relentless investigation and collection of evidence led to a $333 million settlement in 1996, marking one of the largest direct-action lawsuits in U.S. history. The case underscored the importance of corporate accountability, transparency, and the power of grassroots activism in achieving environmental justice.

How it works

The saga of the Erin Brockovich case emerges as a pivotal exemplar of environmental equity and corporate liability. During the formative years of the 1990s, Erin Brockovich, devoid of formal legal tutelage, assumed a pivotal role in unveiling the contamination of potable water in Hinkley, California, attributable to the actions of the Pacific Gas and Electric Company (PG&E). Her endeavors culminated in one of the most substantial settlements in a lawsuit driven by direct action in the annals of American jurisprudence, spotlighting the potency of grassroots activism and the significance of corporate culpability in environmental affairs.

The foray of Erin Brockovich into the narrative commenced with her perusal of medical archives indicating a cluster of maladies amongst Hinkley denizens. These afflictions, spanning from persistent cephalalgia to assorted forms of carcinoma, were intrinsically linked to hexavalent chromium (chromium-6), a pernicious composite employed by PG&E in its cooling towers to forestall corrosion. Brockovich’s meticulous probe divulged PG&E’s discharge of chromium-6 into unlined reservoirs, permitting its infiltration into the aquifer. Unbeknownst to the populace of Hinkley, they had been imbibing and employing this tainted water for an extended duration, engendering dire health ramifications.

The salient aspect of Brockovich’s endeavors resided in her doggedness and her adeptness in establishing rapport with the afflicted populace. She amassed copious evidence and testimonies from residents, constructing a compelling indictment against PG&E. Despite encountering formidable hurdles, encompassing initial incredulity and resistance from the legal fraternity, Brockovich’s unrelenting quest for rectitude, coupled with her collaboration with attorney Ed Masry, brought the case to the judicial arena. In 1996, PG&E assented to a settlement of $333 million, constituting the most sizable settlement of its genre at the juncture. This denouement not only furnished redress to the victims but also established a precedent for subsequent environmental litigations.

The saga of Erin Brockovich underscored the imperative of transparency and accountability in corporate modus operandi. PG&E had endeavored to obfuscate the contamination, deceiving the community regarding the safety of their water supply. The case laid bare how corporations could prioritize pecuniary gains over public well-being, accentuating the necessity for stringent regulatory oversight and corporate rectitude. Furthermore, it spotlighted the role of individuals and communities in holding potent entities accountable. Brockovich’s unwavering resolve and grassroots approach evinced that ordinary citizens possessed the wherewithal to confront corporate behemoths and effectuate substantive transformation.

In tandem with its legal and environmental repercussions, the case exerted a profound cultural influence. The saga of Erin Brockovich was immortalized in a highly lauded cinematic rendition featuring Julia Roberts, which galvanized widespread attention to the quandary of environmental contamination and corporate malfeasance. The celluloid portrayal of Brockovich as an empathetic and resolute figure galvanized myriad individuals to instigate action within their respective communities. It also engendered a broader cognizance of environmental equity issues, catalyzing discussions regarding the protracted repercussions of industrial pollution and the import of communal activism.

The legacy of the Erin Brockovich case endures contemporaneously. It serves as a poignant reminder of the enduring impediments in environmental preservation and the pivotal role of advocacy and judicial action in redressing these quandaries. The case has spawned further inquiries into environmental pollution and has engendered impetus for more stringent regulations to preclude analogous recurrences. It further accentuates the exigency of bolstering and empowering those who vocalize dissent against injustices, particularly within marginalized and vulnerable demographics.

In conclusion, the Erin Brockovich case against PG&E epitomizes a seminal instance of environmental justice attained through grassroots activism and legal perseverance. It accentuates the dire consequences of corporate dereliction and the potency of determined individuals in effectuating transformation. The case endures as a compelling testament to the efficacy of advocacy and the perpetual imperative for vigilance in safeguarding public health and the environment.

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