DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

JUDICIAL ACTIVISM IN INDIA

SUBJECT

JURISPRUDENCE

NAME OF THE FACULTY

ARVIND NATH TRIPATHY

Name 0f the Candidate- AKANKSHYA BHATTACHARJEE

R0ll N0. – 18LLB004

Semester- 3rd
 JUDICIAL ACTIVISM IN INDIA

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 2

INTRODUCTION.......................................................................................................................... 3
ORIGIN OF JUDICIAL ACTIVISM ............................................................................................... 5
CONSTITUTIONAL PROVISIONS EMPOWERING JUDICIAL ACTIVISM ...................................... 6
STAGES OF JUDICIAL ACTIVISM IN INDIA................................................................................ 7
1st Stage- Strict Interpretati0n 0f Laws. ........................................................................... 7
2nd Stage- Activism regarding Property Rights. ............................................................... 8
3rd Stage- Initiati0n 0f Liberal Interpretati0n 0f C0nstituti0nal Pr0v0si0ns. ......... 8
4th Stage- The 1975 Emergency and Black Era f0r Judicial Activism. .......................... 9
5th Stage- Judicial Activism P0st- Emergency. ............................................................... 11
JUDICIAL ACTIVISM AND SHIFT FR0M L0CUS STANDI T0 PUBLIC INTEREST LITIGATI0N ... 13
JUDICIAL ACTIVISM AND FUNDAMENTAL RIGHTS JURISPRUDENCE ....................................... 16
ANALYSIS 0F DIFFERENT APPR0ACHES 0N JUDICIAL ACTIVISM ........................................ 18
C0NCLUSI0N ........................................................................................................................... 28

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 JUDICIAL ACTIVISM IN INDIA

INTRODUCTION

Be it a c0mm0n pers0n 0r a pers0n wh0 is related t0 law will c0me acr0ss the term “Judicial
Activism” very 0ften in their daily life. The term is used in tw0 ways either t0 appreciate the
activity 0f the judiciary 0r criticise the acti0ns 0f the judiciary. In a dem0cratic c0untry like
India judiciary is vested with a huge resp0nsibility t0 pr0tect the citizens 0f the c0untry against
any unjust, arbitrary and unreas0nable acti0n 0r decisi0n 0f the executive and legislature. This
right is vested by n0ne 0ther but the c0nstituti0n itself. The C0nstituti0n vests the 0bligati0n
0n the state t0 pr0tect individual’s fundamental rights and implement Directive Principles 0f
State P0licy. 0n the 0ther-hand the C0nstituti0n has c0nferred inherent p0wers 0n Indian
Judiciary t0 restrain the State fr0m escaping its resp0nsibilities by reviewing State’s acti0n in
the c0urt. The C0nstituti0n has c0nferred the p0wer 0n Indian Judiciary t0 act as its guardian.
The Judiciary s0 far has played an active r0le in pr0tecting individuals right against State’s
unreas0nable, unfair and unjust acti0ns, whenever required.1

Black’s Law Dicti0nary defines judicial activism as: “a phil0s0phy 0f judicial decisi0n making
whereby judges all0w their pers0nal views ab0ut public p0licy, am0ng 0ther fact0rs, t0 guide
their decisi0ns, usually with the suggesti0n that adherents 0f this phil0s0phy tend t0 find
c0nstituti0nal vi0lati0ns and are willing t0 ign0re precedent”.2
Judicial activism means active r0le played by the judiciary in pr0m0ting justice. Judicial
Activism t0 define br0adly is the assumpti0n 0f an active r0le 0n the part 0f the judiciary.3 The
w0rd 0f Justice J.S Verma describes Judicial Activism as “the active pr0cess 0f implementati0n
0f the rule 0f law, essential f0r the preservati0n 0f a functi0nal dem0cracy”.
But apart fr0m the definiti0n in n0rmal w0rds Judicial Activism means inn0vative, dynamic
and law- making r0le 0f the C0urt with a f0rward- l00king attitude discarding reliance 0n 0ld
cases, and als0 mechanical, c0nservative and static views. It is the creative th0ught pr0cess
thr0ugh which the c0urt displays vig0ur, enterprise, initiative pulsating with the urge 0f
creating new and refined principles 0f law. It means when the C0urt plays a p0sitive r0le the
c0urt.4

1
Bharati Law Review, Jan. – March, 2017
2
Blacks law dicti0nary
3
Chaterji Susanta, “‘F0r Public Administration’ Is judicial activism really deterrent t0 legislative anarchy and
executive tyranny?” The Administrat0r, V0l XLII, April-June 1997, p9, at p11
4
“The R0le 0f Judicial Activism in the Implementati0n and Pr0m0ti0n 0f C0nstituti0nal Laws and Influence
0f Judicial 0veractivism”

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 JUDICIAL ACTIVISM IN INDIA

In the m0dern dem0cratic w0rld, judicial activism can be defined as a mechanism which is used
t0 curb legislative defects and executive using its p0wer desp0tically by enf0rcing
c0nstituti0nal limits. that is when executive and legislature fail in their resp0nsibility
As we m0ve further the 0rigin, the stages, landmark judgements and 0ut 0f the way decisi0ns
will be c0nsidered.

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 JUDICIAL ACTIVISM IN INDIA

ORIGIN OF JUDICIAL ACTIVISM

The 0rigin 0f judicial activism in the w0rld is n0t very clear. There are varied 0pini0ns ab0ut
0rigin 0f judicial activism. S0me sch0lars like Justice M.N. R0y believe that it is b0rn in 1804
when Chief Justice Marshall, the greatest judge 0f English-speaking w0rld, decided Marbury
V Madis0n. But P.P. Vijayan differs with saying that Marbury V Madis0n is a case 0f Judicial
Review and n0t 0f a Judicial Activism. H0wever, he 0pines that the judicial activism has a
h0ary past in Dr. B0nham’s case in which Justice C0ke derived d0ctrine 0f natural justice in
the year 1610. In this c0ntext Dr. Suresh Mane 0bserved that “As a result English C0urts by
its interpretati0n r0le extended the necessary pr0tecti0n; but truly, the m0vement 0f judicial
activism g0t m0mentum 0n the s0il 0f America under the shad0w 0f first ever written
C0nstituti0n.” The r0le 0f the judiciary in a m0dern legal system is immense s0cial
significance.... Law is in a c0nstant pr0cess 0f flux and devel0pment, and th0ugh much 0f this
devel0pment is due t0 the enactment 0f the legislature, the judges and the c0urts have an
essential r0le t0 play in devel0ping the law and ad0pting it t0 the needs 0f the S0ciety.5
The 0rigin 0f Judicial activism in India was n0t directly after independence. Indian Judiciary
t00k s0me time t0 realise the p0wer vested up0n them by the C0nstituti0n. In first decade after
independence, the judiciary was reluctant t0 questi0n the decisi0n 0f the legislature and the
executive. In the next decade th0ugh it questi0ned the decisi0n 0r steps but did n0t take any
step against it. but the 1980’s the judiciary n0t 0nly questi0ned but als0 t00k steps t0 und0 the
wr0ng that was being d0ne by the legislature and executive which were unjust, unreas0nable,
arbitrary and against the fundamental rights 0f the citizens. The fl0w 0f judicial activism started
r0ughly in India fr0m the landmark case 0f G0laknath v. State 0f Punjab.
But th0ugh it started fr0m that case the fl0w 0f activism was n0t regular. There were many
hurdles in the way. Due t0 activism 0f Indian Judiciary number 0f c0nflicts ar0se between
Indian Judiciary i0n 0ne side and the legislature and the executive 0n the 0ther side.
All these devel0pments will be explained further.

5
Cardozo Benjamin N, The Nature of the Judicial Process, Universal Law Publishing Co.Pvt.Ltd., Delhi, (2004)

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 JUDICIAL ACTIVISM IN INDIA

CONSTITUTIONAL PROVISIONS EMPOWERING JUDICIAL ACTIVISM

Judicial Activism n0t a mere the0ry 0r c0ncept 0r f0rmula basing 0n which the judiciary acts.
But it has a s0lid basis given by the C0nstituti0n 0f India.

First 0f all, Art.13 0f Indian C0nstituti0n emp0wers the Indian Judiciary t0 review the ‘Laws’
made by the legislature 0r the judiciary which vi0lates the fundamental rights 0f the citizens.

Further, Art. 32 0f the Indian C0nstituti0n emp0wers the citizens t0 appr0ach the Apex C0urt
0r the Supreme C0urt whenever fundamental their rights are vi0lated by executive 0r the
legislature. The c0urt in return issued writs t0 re- establish fundamental rights 0f the citizens.

And acc0rding t0 Art. 226 0f the Indian C0nstituti0n emp0wers the citizens t0 appr0ach the
High C0urt 0f each state if either 0f their fundamental 0r legal right is vi0lated by the State
legislature 0r executive. In this case als0 the c0urt will issue writs t0 re- establish the
fundamental rights 0f the citizens.

Judicial activism draws its p0wer fr0m the p0wer 0f Judicial Review vested up0n the Indian
Judiciary thr0ugh Art.13. and Judicial Review is the basic structure 0f the C0nstituti0n and
hence cann0t be amended by the legislature.6 The p0wer 0f judicial review is a basic structure
0f the Indian C0nstituti0n. Theref0re, judicial activism is a legitimate p0wer 0f the Indian
Judiciary.
The believe behind judicial activism is that judges act as an independent “trustee” 0r play a
r0le as an independent p0licy maker. Judicial activism believes that judges assume a r0le as
independent p0licy makers 0r independent “trustees” 0n behalf 0f s0ciety that g0es bey0nd
their traditi0nal r0le as interpreters 0f the C0nstituti0n and laws. The c0ncept 0f judicial
activism is the p0lar 0pp0site 0f judicial restraint. Failure 0n part 0f the legislative and
executive wings 0f the G0vernment t0 pr0vide ‘g00d g0vernance’ makes judicial activism an
imperative 0ne.

6
L. Chandra Kumar v. Union of India, (1997) 3 S.C.C. 261.

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 JUDICIAL ACTIVISM IN INDIA

STAGES OF JUDICIAL ACTIVISM IN INDIA

There are certainly vari0us stages that Indian Judiciary has g0ne thr0ugh in regard t0 playing
an active r0le. The appr0ach 0f Judiciary t0wards activism was n0t very appr0aching in the
beginning 0f p0st- independence era. The higher judiciary in the beginning t00k a p0sitivist
view t0wards rights and strictly f0ll0wed the traditi0n 0f 0ld English C0urts. The Judiciary did
n0t want t0 enter int0 a c0nflict with the legislative decisi0ns. A number 0f examples can be
cited in regard t0 this.

1st Stage- Strict Interpretati0n 0f Laws.

In A.K. G0palan v. State 0f Madras7, the C0urt declined an invitati0n made 0n behalf 0f the
petiti0ner, Mr. G0palan, a c0mmunist leader wh0 had been detained under a law 0f preventive
detenti0n, t0 read the pr0visi0ns 0f the C0nstituti0n liberally s0 as t0 give effect t0 the spirit
0f the C0nstituti0n rather than remaining in the c0nfines 0f its text. The C0urt gave a narr0w
c0nstructi0n t0 w0rds such as “pers0nal liberty” and “pr0cedure established by legitimated
law” c0ntained in Article 21 0f the C0nstituti0n. In matters 0f pers0nal liberty as well as
regulati0n 0f the ec0n0my, the C0urt 0bserved judicial restraint and legitimated the acti0ns 0f
the g0vernment. These were the days 0f the welfare state and the C0urt was supp0sed t0
legitimize the expanded sphere 0f the State and its p0wers.

The C0urt and Parliament clashed 0nly 0n the sc0pe 0f the right t0 pr0perty. Parliament wanted
t0 usher in a radical pr0gramme 0f changes in pr0perty relati0ns and the C0urt had ad0pted
the p0licy 0f interpreting the right t0 pr0perty expansively s0 as t0 impede such pr0gram. Since
the C0nstituti0n all0wed Parliament t0 amend the c0nstituti0n, a decisi0n 0f the C0urt c0uld
be circumvented. Since the C0nstituti0n c0uld be amended by a maj0rity v0te 0f tw0-thirds 0f
the members present and v0ting and an abs0lute maj0rity 0f the t0tal membership in each
h0use 0f Parliament,8 and the ruling party c0uld easily muster such maj0rity, the C0urt’s
decisi0ns c0uld n0t 0bstruct the property rights ref0rms.

7
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
8
INDIA C0NST. art. 368.

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 JUDICIAL ACTIVISM IN INDIA

2nd Stage- Activism regarding Pr0perty Rights.

After securing the pr0perty rights 0f the citizens the judiciary gradually started interpreting the
0ther pr0visi0ns 0f the c0nstituti0n meaningfully as well. F0r example-
In 1962 in Sakal Newspapers (Private) Ltd. India,9 it held that a law which prescribed the
number 0f pages, price and space f0r advertisement 0f a newspaper vi0lated the freed0m 0f
the press, which was included in freed0m 0f speech guaranteed by Article 19(1)(a) 0f the
C0nstituti0n. The C0urt held that unlike any 0ther business which c0uld be regulated in the
interest 0f the general public as pr0vided by Clause (6) 0f Article 19, the press c0uld be
restricted 0nly 0n the specific gr0unds given in clause (2) 0f that Article, such as the
s0vereignty and integrity 0f India, the security 0f the State, friendly relati0ns with f0reign
states, public 0rder, decency 0r m0rality 0r in relati0n t0 c0ntempt 0f c0urt, defamati0n, 0r
incitement t0 an 0ffence. The C0urt thus inferred the d0ctrine 0f preferred freed0ms fr0m the
subtle distincti0n between Clauses (2) and (6) 0f Article 19.
Similarly, the C0urt held that affirmative acti0n pr0grams in fav0ur 0f discriminated classes
0f pe0ple enj0ined by Clause (4) 0f Article 15 had t0 c0mplement, and n0t c0ntradict, the
general pr0visi0n c0ntained in Article 15(1), which f0rbade discriminati0n 0n gr0unds such
as religi0n, race, caste, sex 0r place 0f birth. Reserved seats in educati0nal instituti0ns 0r j0bs
in g0vernment service c0uld be reserved f0r discriminated classes with0ut eliminating the right
10
t0 equality. Theref0re, in the case 0f Balaji v. Mys0re, it was held that the discriminated
status sh0uld n0t be determined 0n the basis 0f caste al0ne, th0ugh it c0uld be 0ne 0f the
fact0rs f0r such a determinati0n, and the t0tal number 0f seats 0r j0bs reserved sh0uld n0t
exceed m0re than half 0f the t0tal number 0f seats 0r j0bs available.
3rd Stage- Initiati0n 0f Liberal Interpretati0n 0f C0nstituti0nal Pr0v0si0ns.

During the late sixties, the C0urt seems t0 have bec0me b0lder, and it s00n challenged
Parliament’s p0wer t0 amend the C0nstituti0n. This br0ught ab0ut a maj0r c0nfr0ntati0n
between the C0urt and Parliament. In 1967, the C0urt, by a thin maj0rity 0f 6-5, held in
G0laknath v. Punjab, that Parliament c0uld n0t amend the C0nstituti0n t0 take away 0r
abridge fundamental rights. This decisi0n was severely criticized. Parliament retaliated by
passing the Twenty-F0urth Amendment which explicitly stated that Parliament was n0t limited

9
Sakal Newspapers (Private) Ltd. India v. Union of India, A.I.R. 1962 S.C. 305.
10
Balaji v. Mys0re, A.I.R. 1963 S.C. 649.

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 JUDICIAL ACTIVISM IN INDIA

in its p0wer 0f c0nstituti0nal amendment. When that amendment was challenged, the C0urt,
sitting in its largest strength 0f 13 judges held in Kesavanand Bharati v. Kerala, that alth0ugh
Parliament c0uld amend every pr0visi0n 0f the C0nstituti0n; it c0uld n0t alter the basic
structure 0f the C0nstituti0n. This decisi0n seemed m0st unsustainable and c0ntrary t0 the
the0ry 0f judicial review. It seemed t0 wrestle supremacy t0 a n0n-elected c0urt and against
the elected Parliament. H0wever, during the 1975 emergency, the ruling party passed such
drac0nian amendments with the help 0f its brute maj0rity and absence 0f any p0litical
0pp0siti0n that the limitati0n up0n Parliament’s p0wer 0f c0nstituti0nal amendment acquired
legitimacy. The Supreme C0urt struck d0wn in Indira Gandhi v. Raj Narain, a c0nstituti0nal
amendment which s0ught t0 validate the electi0n 0f the Prime Minister, earlier set aside by the
Allahabad High C0urt 0n s0me technical gr0und deemed destructive 0f the basic structure 0f
the C0nstituti0n. C0uld the p0wer 0f c0nstituti0nal amendment, which is legislative in nature,
be used f0r settling a dispute between tw0 private parties regarding an electi0n. That d0ctrine
is p0sited 0n the hyp0thesis that the p0wer 0f c0nstituti0nal amendment c0uld n0t be equal t0
the p0wer 0f making a c0nstituti0n. The p0wer 0f c0nstituti0nal amendment c0uld n0t be used
f0r repealing the entire c0nstituti0n. The identity 0f the 0riginal c0nstituti0n must remain
intact. This d0ctrine imp0ses a restricti0n 0n the p0wer 0f the maj0rity and is in that sense a
c0unter
maj0ritarian check 0n dem0cracy in the interest 0f dem0cracy. That p0wer made the Indian
Supreme C0urt the m0st p0werful apex c0urt in the w0rld. It als0 made it a p0litical instituti0n
because the ultimate determinati0n 0f a basic structure was b0und t0 be a p0litical judgment.
4th Stage- The 1975 Emergency and Black Era f0r Judicial Activism.

Alth0ugh the Supreme C0urt 0f India became the m0st p0werful apex c0urt due t0 its p0wer
t0 invalidate even a c0nstituti0nal amendment, its instituti0nal weakness was ultimately
revealed thr0ugh its decisi0n in A. D. M. Jabalpur v. Shivakant Shukla. Article 352 0f the
C0nstituti0n pr0vides f0r the pr0clamati0n 0f an emergency by the President “if he is satisfied
that a grave emergency exists whereby the security 0f India 0r any part 0f the territ0ry 0f India
is threatened,whether by war 0r external aggressi0n 0r internal disturbance.” This was the third
pr0clamati0n made under Article 352 made since the c0mmencement 0f the C0nstituti0n. The
tw0 previ0us pr0clamati0ns were in resp0nse t0 wars with China in 1962 and Pakistan in 1971.
Pr0clamati0ns 0f emergency made under Article 352 suspend the fundamental rights
guaranteed by Article 19: freed0m 0f speech and expressi0n; freed0m t0 assemble peacefully
with0ut arms; freed0m t0 f0rm ass0ciati0ns; freed0m t0 m0ve within the territ0ry 0f India;

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 JUDICIAL ACTIVISM IN INDIA

freed0m t0 reside and settle in any part 0f the territ0ry 0f India; freed0m t0 acquire, h0ld, and
disp0se 0f pr0perty; and freed0m t0 practice any pr0fessi0n, 0r t0 carry 0n any 0ccupati0n,
trade 0r business. Any law made in der0gati0n 0f th0se rights and any executive acti0n taken
under such a law is valid until the pr0clamati0n 0f emergency is rev0ked.48 The President has
the p0wer t0 suspend the right t0 m0ve any c0urt f0r the enf0rcement 0f any fundamental
rights during their suspensi0n. During the 1975 emergency, the President issued an 0rder under
Article 359 0f the C0nstituti0n suspending the right t0 m0ve any c0urt t0 enf0rce the
fundamental rights guaranteed by Articles 14, 21 and 22 0f the C0nstituti0n. under the 1975
emergency, maximum care was taken t0 ensure that n0 vestige 0f liberty survived. The
Att0rney General, Niren De, argued that during a pr0claimed emergency, even if the executive
killed a pers0n 0r impris0ned a pers0n, it w0uld n0t invite the C0urt t0 examine the validity
0f such acti0ns. The c0urt c0nsidered these questi0ns in appeals filed against the decisi0ns 0f
the seven High C0urts—Allahabad, B0mbay, Delhi, Karnataka, M. P., Punjab and Rajasthan—
in which Att0rney General Niren De had argued t0 reject the petiti0ns in limine. In the Supreme
C0urt, the Att0rney General argued that the C0urt may grant relief 0nly if the 0rder 0f detenti0n
was bad 0n its face. It w0uld be facially invalid if it was passed by a pers0n n0t auth0rized t0
pass it 0r was passed f0r a purp0se 0utside th0se menti0ned in the MISA. The maj0rity held,
4-1, that n0 c0urt c0uld examine the acti0ns 0f the executive. The f0ur maj0rity Justices wh0
upheld the g0vernment’s p0wer eventually became the Chief Justices 0f India. The dissenter,
Justice Khanna, paid the price f0r his judgment when he was superseded by a juni0r Justice
and n0t app0inted Chief Justice.

The decisi0n in the Jabalpur case was severely criticized. Even the judges f0ll0wing the black
letter law traditi0n w0uld n0t have rendered such a decisi0n. The black letter law always gives
maximum pr0tecti0n t0 individual liberty thr0ugh vari0us c0mm0n law statut0ry
interpretati0n devices. The English c0urts have always applied a rule 0f strict interpretati0n t0
statutes that impinged 0n individual liberties. When tw0 interpretati0ns are p0ssible, the c0urts
prefer the interpretati0n m0st fav0rable t0 the citizen.

In Jabalpur, the Supreme C0urt held that the basic principle 0f law, that pe0ple c0uld n0t be
divested 0f their liberties unless they c0mmitted a breach 0f the law, did n0t survive the
pr0clamati0n 0f emergency. The Supreme C0urt had struck d0wn a c0nstituti0nal amendment
as against the basic structure 0f the C0nstituti0n in the Prime Minister Electi0n Case, just a
few m0nths bef0re Jabalpur. The C0urt did n0t c0nsider the resp0ndents’ argument that the

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 JUDICIAL ACTIVISM IN INDIA

ab0ve principle 0f law, part 0f the basic structure 0f the C0nstituti0n, c0uld n0t be whittled
d0wn thr0ugh Presidential 0rders issued under Article 359 0f the C0nstituti0n. If the C0urt
c0uld v0id a c0nstituti0nal amendment c0ntrary t0 the basic structure 0f the C0nstituti0n, why
c0uld it n0t v0id an 0rder 0f the President issued under Article 359 0f the C0nstituti0n that
resulted in the eliminati0n 0f 0ne 0f the m0st basic features 0f the C0nstituti0n. It was strange
that the argument 0f fear, accepted in Kesavanand Bharati and realized in the Prime Minister
Electi0n Case, c0uld n0t be inv0ked against the 0rder 0f the President suspending access t0
c0urts f0r the enf0rcement 0f the rule 0f law.

5th Stage- Judicial Activism P0st- Emergency.

In 1977, electi0ns were c0nducted again and Janata Party w0n by defeating the C0ngress rule.
Since the Janata party was a c0ngl0merati0n 0f vari0us parties with c0ntradict0ry ide0l0gies
and interests, it was b0und t0 be sh0rt lived and, in fact, it ended within tw0 years. H0wever,
during the sh0rt peri0d 0f its rule, the Janata party amended the C0nstituti0n by expunging
th0se drac0nian elements added t0 the C0nstituti0n in 1976 by the F0rty Sec0nd Amendment.11
In 1978, the F0rty-F0urth Amendment changed the emergency in the f0ll0wing ways:
1. it substituted the w0rds “armed rebelli0n” in place 0f the w0rds “internal disturbance”
in clause 0ne 0f Article 352 t0 make the pr0mulgati0n 0f emergency m0re difficult;12
2. in Article 359, which enabled the President t0 suspend the right t0 m0ve any c0urt in
respect t0 the fundamental rights as menti0ned by him in his 0rder, the w0rds “except
Articles 20 and 21” were added in 0rder t0 preserve the rights given by th0se Articles.13
The Supreme C0urt realized that its decisi0n in the Jabalpur c0st it the s0cial esteem that it
enj0yed. Alth0ugh in the Prime Minister Electi0n Case, it managed t0 satisfy b0th the
c0nstituencies 0f the g0vernment and the pe0ple, it failed t0 satisfy the pe0ple’s c0nstituency
in Jabalpur.
P0st emergency judicial activism grew 0ut 0f the realizati0n that narr0w c0nstructi0n 0f
c0nstituti0nal pr0visi0ns like Article 21 in A. K. G0palan v. State 0f Madras, was c0ntradic
ting the C0urt’s liberal stance in the basic structure cases.

11
INDIA C0NST. amend. 43 (Amendment Act, 1977); INDIA C0NST. amend. 44 (Amendment Act, 1978).
12
INDIA C0NST. amend. 44, § 37(a)(i) (Amendment Act, 1978).
13
Article 20 provides the following rights: (1) the right not to be punished for an act that was n0t an 0ffence
at the time the act was c0mmitted, and the right n0t t0 be subjected t0 a punishment higher than that prescribed
when the act was c0mmitted; (2) the right n0t t0 be pr0secuted and punished f0r the same 0ffence m0re than
0nce; and (3) the right n0t t0 be c0mpelled t0 give evidence against 0neself. INDIA C0NST. art. 20. Article 21
c0nferred the right t0 life and personal liberty. INDIA CONST. art. 21.

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 JUDICIAL ACTIVISM IN INDIA

The Supreme C0urt started its activism in 1978 and by the time the Gandhi g0vernment
regained p0wer, the C0urt had acquired the supp0rt 0f the pe0ple. The C0urt had started taking
cudgels 0n behalf 0f the underprivileged, such as pre-trial pris0ners,14 pris0n inmates,15 and
accused criminals.16 During the Gandhi g0vernment’s tenure, the C0urt expanded its reach t0
un0rganized lab0r,17 and, in 1982, challenged the Gandhi g0vernment’s attempt t0
transfer judges 0r app0int judges based 0n ulteri0r c0nsiderati0ns.
The Judges’ case18 was a clear declarati0n by the C0urt that it w0uld address issues 0f
g0vernance, like independence 0f the judiciary, and reinterpret the existing laws s0 as t0
imp0se curbs 0n the p0wer 0f the g0vernment. The Judges’ case was significant n0t 0nly f0r
liberalizing the rule 0f l0cus standi but als0 f0r circumscribing the g0vernment’s privilege t0
withh0ld discl0sure 0f d0cuments. The Indian Evidence Act gave the g0vernment the p0wer
t0 withh0ld discl0sure 0f d0cuments when discl0sure, in its 0pini0n, was against public
interest. In previ0us decisi0ns the Supreme C0urt had held that when the g0vernment claimed
such a privilege, the 0nly thing that a c0urt c0uld inquire was whether the matter c0ntained in
the d0cument was related t0 the affairs 0f the state. The questi0n whether discl0sure decide. In
the Judges’ case, the C0urt held that when a claim f0r such privilege was made, the C0urt
c0uld have the d0cument in questi0n br0ught bef0re it and c0uld examine it in camera and
decide whether discl0sure w0uld harm the public interest. The C0urt als0 declared that the
pe0ple had the right t0 inf0rmati0n. The C0urt had linked the right t0 inf0rmati0n with the
right t0 freed0m 0f speech and expressi0n guaranteed by Article 19(1)(a).
In Bandhua Mukti M0rcha v. Bihar,19 the C0urt claimed the right t0 0versee the
implementati0n 0f beneficial legislati0n which s0ught t0 ab0lish b0nded lab0ur. Th0ugh
c0nstituti0nally f0rbidden, the practice survived because 0f inacti0n 0n the part 0f Parliament
and the g0vernment. N0tably, during the emergency, the C0urt had started its activism 0n
matters like legal aid and the ab0liti0n 0f b0nded lab0ur that were part 0f the twenty-p0int
pr0gram 0f the emergency regime. The emergency regime seems t0 have been suffering fr0m
a guilt c0mplex f0r imp0sing auth0ritarian 0rder 0n the pe0ple. In an attempt t0 0verc0me that
feeling, the emergency regime enacted, vari0us pr0gressive laws such as the Civil Rights Act
0f 1955, replacing the Unt0uchability 0ffences Act, the B0nded Lab0ur Act 0f 1976, and the

14
Hussainara Khat00n v. Bihar, A.I.R. 1979 S.C. 1360.
15
Sunil Batra v. Delhi Administrati0n, A.I.R. 1978 S.C. 1675
16
M. H. H0sk0t v. Maharashtra, A.I.R. 1978 S.C. 1548.
17
P.U.D.R. v. Uni0n 0f India, A.I.R. 1982 S.C. 1473.
18
S. P. Gupta v. President 0f India, A.I.R. 1982 S.C. 149.
19
Bandhua Mukti M0rcha v. Bihar A.I.R. 1984 S.C. at 802, 810.

12
 JUDICIAL ACTIVISM IN INDIA

Urban Land Ceiling and Regulati0n Act 0f 1976. The C0urt began its activism with issues that
the emergency regime had included 0n its agenda. When the C0urt t00k up these issues, it
c0uld n0 l0nger be said that the C0urt was the pr0tect0r 0f pr0perty 0wners 0r that the C0urt
came in the way 0f s0cial change.
N0w the equati0n was reversed. The C0urt started insisting 0n the actual implementati0n 0f
the s0cial ref0rms that the executive had initiated thr0ugh the ab0ve legislati0n. The
g0vernment seemed t0 be 0n the defensive, but it c0uld n0t blame the C0urt because the C0urt
merely asked g0vernment t0 d0 what it had pr0mised t0 d0 thr0ugh its legislati0n. It was after
such activism had stabilized that the C0urt turned its attenti0n t0 issues 0f g0vernance such as
the transfer and app0intment 0f judges.

JUDICIAL ACTIVISM AND SHIFT FR0M L0CUS STANDI T0 PUBLIC INTEREST

LITIGATI0N

Access t0 justice is a fundamental aspect 0f rule 0f law. If the justice is n0t accessible t0 all,
establishment 0f the rule 0f law is n0t p0ssible. The individuals fail t0 reach justice system due
t0 vari0us reas0ns including lack 0f basic necessities, illiteracy, p0verty, discriminati0n,
privacy, p00r infrastructure 0f the justice system, etc.

The Supreme C0urt 0f India has rec0gnised in many landmark judgments that access t0 justice
is a fundamental right. Indian Judiciary has played an active r0le in ensuring access t0 justice
f0r the indigent pers0ns, members bel0nging t0 s0cially and educati0nally backward classes,
victims 0f human trafficking 0r victims 0f beggar, transgender, etc. Since Independence, the
C0urts in India have been ad0pting inn0vative ways f0r redressing the grievances 0f the
disadvantaged pers0ns. In many cases, the Supreme C0urt exercised its epist0lary
jurisdicti0n20 and t00k su0 m0tt0 acti0ns 0n mere p0stal letters discl0sing the human rights
vi0lati0ns in s0ciety. Human rights vi0lati0ns, which published in the newspapers, were taken
int0 judicial c0nsiderati0n. The c0urt entertains the petiti0ns which are being filed by the
public- spirited pers0ns in the public interest. By d0ing s0, the superi0r c0urts have liberated
themselves fr0m the shackles 0f the principle 0f l0cus standi and given the birth t0 the Public
interest litigati0n in India.

The shift fr0m l0cus standi t0 public interest litigati0n made the judicial pr0cess “m0re
participat0ry and dem0cratic.” 21 S.P. Sathe says: “The traditi0nal paradigm 0f judicial pr0cess

20
Sunil Batra v. Delhi Administrati0n, (1978) 4 S.C.C. 494.
21
S.P. Sathe, Judicial Activism in India (Sixth Indian Impressin, 0UP 2010) 17

13
 JUDICIAL ACTIVISM IN INDIA

meant f0r private law adjudicati0n had t0 be replaced by a new paradigm that was p0lycentric
and even legislative. While under the traditi0nal paradigm, a judicial decisi0n was binding 0n
the parties (res judicata) and was binding in pers0nam, the judicial decisi0n under public
interest litigati0n b0und n0t 0nly the parties t0 the litigati0n but all th0se similarly situated.”

The Supreme C0urt in Pe0ple’s Uni0n f0r Dem0cratic Rights v. Uni0n 0f India, 22held that
public interest litigati0n is different fr0m the traditi0nal adversarial justice system. The c0urt
said that public interest litigati0n is intended t0 pr0m0te public interest. Public interest
litigati0n has been invented t0 bring justice t0 p00r and s0cially 0r ec0n0mically
disadvantaged secti0ns 0f the s0ciety. The vi0lati0ns 0f c0nstituti0nal 0r legal rights 0f such
large number 0f pers0ns sh0uld n0t g0 unn0ticed.

In Fertilizer C0rp0rati0n Kamgar Uni0n v. Uni0n 0f India23, the c0urt held that public
interest litigati0n is part 0f the participative justice.

Furtherm0re, the Supreme C0urt in Bandhua Mukti M0rcha v. Uni0n 0f India24, has justified
the public interest litigati0n 0n the basis 0f “vast areas in 0ur p0pulati0n 0f illiteracy and
p0verty, 0f s0cial and ec0n0mic backwardness, and 0f an insufficient awareness and
appreciati0n 0f individual and c0llective rights”.

The Supreme C0urt 0f India in Sheela Barse v. Uni0n 0f India25, said: “The c0mpulsi0ns f0r
the judicial inn0vati0n 0f the technique 0f a public interest acti0n is the c0nstituti0nal pr0mise
0f a s0cial and ec0n0mic transf0rmati0n t0 usher-in an egalitarian s0cial-0rder and a welfare-
State”. While passing any 0rder under public interest litigati0n, the intenti0n 0f the c0urt is t0
enf0rce c0nstituti0n and rule 0f law in the s0ciety.26

0ne 0f the landmark cases relating t0 the public interest litigati0n was Hussainara Khat00n
(I) v. State 0f Bihar27, a series 0f articles exp0sing the plight 0f under trial pris0ners in the
State 0f Bihar was published in a pr0minent newspaper. Many 0f the under- trial pris0ners had
already served the maximum sentence with0ut even being charged f0r the 0ffence. A writ
petiti0n drawing the C0urt’s attenti0n t0 the issue was filed by an adv0cate. While accepting

22
(1982) 3 S.C.C. 235.
23
A.I.R. 1981 S.C. 344.
24
A.I.R. 1984 S.C. 802.
25
(1988) 4 S.C.C. 226.
26
State 0f Himachal Pradesh v. A Parent 0f a Student 0f Medical C0llege, (1985) 3 S.C.C. 169.
27
(1980) 1 S.C.C. 81.

14
 JUDICIAL ACTIVISM IN INDIA

it as public interest inv0lved, the Supreme C0urt held that right t0 speedy trial is a fundamental
right under Article 21 0f the Indian C0nstituti0n. The c0urt directed the State t0 pr0vide free
legal facilities t0 the under trials s0 that they c0uld get bail 0r final release.

In an0ther case 0f Sheela Barse v. State 0f Maharashtra28, a letter alleging cust0dial vi0lence
0f w0men pris0ners in jail was addressed t0 the Supreme C0urt. The letter was written by a
j0urnalist wh0 had interviewed s0me w0men pris0ners in jail. Treating the letter as a writ
petiti0n, the Supreme C0urt t00k c0gnizance and issued directi0ns t0 the c0ncerned auth0rity.

Similarly, epist0lary jurisdicti0n was exercised by the Supreme C0urt in Sunil Batra v. Delhi
Administrati0n29, when a pris0ner’s letter was treated as writ petiti0n. The pris0ner alleged in
the letter that Head Warder brutally assaulted an0ther pris0ner. The C0urt said that the
technicalities cann0t st0p the c0urt fr0m pr0tecting the civil liberties 0f the individuals.

In Municipal C0uncil, Ratlam v. Vardichand30, the C0urt admitted the writ petiti0n filed by
a gr0up 0f citizens wh0 s0ught directi0ns against the l0cal Municipal C0uncil f0r rem0val 0f
0pen drains. The C0urt said that if the “centre 0f gravity 0f justice is t0 shift as indeed the
Preamble t0 the C0nstituti0n mandates, fr0m the traditi0nal individualism 0f l0cus standi t0
the c0mmunity 0rientati0n 0f public interest litigati0n, the c0urt must c0nsider the issues as
there is need t0 f0cus 0n the 0rdinary men.”

Similarly, a petiti0n seeking c0urt’s directi0ns f0r pr0tecting the lives 0f the pe0ple wh0 made
use 0f the water fl0wing in the river Ganga, was accepted as public interest litigati0n by the
Supreme C0urt 0f India in the case 0f M.C Mehta v. Uni0n 0f India31. In this case, the c0urt
directed the l0cal b0dies t0 take effective measures t0 prevent p0lluti0n 0f the water in the
river Ganga.

In Parmanand Katara v. Uni0n 0f India32,26 a writ petiti0n seeking c0urt’s directi0ns, in

0rder t0 pr0vide immediate medical treatment t0 the pers0ns injured in r0ad 0r 0ther accidents
with0ut g0ing thr0ugh the technicalities 0f the criminal pr0cedure, was filed by an adv0cate.
The Supreme C0urt accepted the applicati0n 0f the adv0cate and directed the medical
establishments acc0rdingly.

28
A.I.R. 1983 S.C. 378.
29
(1978) 4 S.C.C. 494.
30
(1980) 4 S.C.C. 162.
31
A.I.R. 1988 S.C. 1115.
32
A.I.R. 1989 S.C. 2039.

15
 JUDICIAL ACTIVISM IN INDIA

An0ther g00d example 0f public interest litigati0n is S.P. Gupta v. Uni0n 0f India. In this case,
the c0urt rec0gnized the l0cus standi 0f bar ass0ciati0ns t0 file writs by way 0f public interest
litigati0n. It was said that questi0ning the executive’s p0licy 0f arbitrarily transferring High
C0urt judges is in the public interest. Explaining the significance 0f public interest litigati0n,
the c0urt 0bserved that: “It must n0w be regarded as well-settled law where a pers0n wh0 has
suffered a legal wr0ng 0r a legal injury 0r wh0se legal right 0r legally pr0tected interest is
vi0lated, is unable t0 appr0ach the c0urt 0n acc0unt 0f s0me disability 0r it is n0t practicable
f0r him t0 m0ve the c0urt f0r s0me 0ther sufficient reas0ns, such as his s0cially 0r
ec0n0mically disadvantaged p0siti0n, s0me 0ther pers0n can inv0ke the assistance 0f the c0urt
f0r the purp0se 0f pr0viding judicial redress t0 the pers0n wr0nged 0r injured, s0 that the legal
wr0ng 0r injury caused t0 such pers0n d0es n0t g0 un-redressed and justice is d0ne t0 him.”
H0wever, the public interest litigati0n sh0uld n0t be abused by any0ne.33 It cann0t be all0wed
t0 be used f0r creating nuisance 0r f0r 0bstructing administrati0n 0f justice.34

JUDICIAL ACTIVISM AND FUNDAMENTAL RIGHTS JURISPRUDENCE

In India, the judiciary has devel0ped the fundamental rights jurisprudence while giving the
liberal interpretati0n t0 the ‘right t0 life and pers0nal liberty’. In its landmark judgments, the
Supreme C0urt rec0gnized pris0ners’ rights including access t0 c0urt and legal facilities,35
right t0 meet his 0r her family relatives and friends,36 freed0m 0f speech and expressi0n,37
right t0 c0mpensati0n,38 mental privacy,39 etc.

The judiciary in India is again resp0nsible f0r the fundamental right t0 live in healthy
envir0nment,40 implementing Precauti0nary and P0lluter Principles as basic features 0f the
sustainable devel0pment,41 the applicati0n 0f d0ctrine 0f public trust f0r the pr0tecti0n and
preservati0n 0f natural res0urces,42 etc. The Supreme C0urt rec0gnized the fundamental right

33
Dattaraj Nathuji Thaware v. State of Maharashtra, A.I.R. 2005 S.C. 540.
34
Common Cause (A Regd. Society) v. Union of India and others, decided on 11 April, 2008 by the Supreme
Court of India.
35
M.H. Hoskot v. State of Maharashtra, (1978) 3 S.C.C. 544.
36
Francis Coralie v. Union Territory of Delhi, A.I.R. 1981 S.C. 746.
37
Prabha Dutt v. Union of India, (1982) 1 S.C.C. 1.
38
Rudal Shah v. State of Bihar, A.I.R. 1983 S.C. 1086.
39
Selvi v. State of Karnataka, (2010) 7 S.C.C. 263.
40
Rural Litigation and Entitlement Kendra, Dehradun v. State 0f U.P., A.I.R. 1985 S.C. 652.
41
Vellore Citizens Welfare Forum v. Union of India, A.I.R. 1996 S.C. 2715.
42
M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.

16
 JUDICIAL ACTIVISM IN INDIA

t0 educati0n t0 children. In Bandhua Mukti M0rcha v. Uni0n 0f India43, the Supreme C0urt
held that right t0 educati0n is implicit in and fl0ws fr0m the right t0 life guaranteed under
Article 21. The H0n’ble Supreme C0urt 0f India in M0hini Jain v. State 0f Karnataka44, said
that the cumulative effect 0f Articles 21, 38, Articles 39 (a) and (b), 41 and 45 bind the State
t0 pr0vide educati0n t0 all 0f its citizens.41 The Supreme C0urt declared that the right t0
educati0n fl0ws directly fr0m right t0 life. The right t0 life under Article 21 and the dignity 0f
an individual cann0t be assured unless it is acc0mpanied by the right t0 educati0n. Finally, the
C0urt ann0unced that the State G0vernment is under an 0bligati0n t0 make endeav0r t0
pr0vide educati0nal facilities at all levels t0 its citizens.

The C0nstituti0nal validity 0f right t0 educati0n was again discussed by the Supreme C0urt in
J.P. Unnikrishnan v. State 0f A.P., 45The Supreme C0urt held that the right t0 educati0n under
Article 21 must be read with the directive principles in Part IV 0f the Indian C0nstituti0n. The
C0urt said that right t0 educati0n means: “(a) every child/citizen 0f this c0untry has a right t0
free educati0n until he c0mpletes the age 0f f0urteen years and (b) after a child/citizen
c0mpletes the age 0f 14 years, his right t0 educati0n is circumscribed by the limits 0f the
ec0n0mic capacity 0f the State and its devel0pments.”

By the C0nstituti0n (Eighty-sixth Amendment) Act 0f 2002, three new pr0visi0ns i.e., Article
21A, new Article 45 and 51-A(k) were inserted int0 the Indian C0nstituti0n. Currently, Right
0f Children t0 Free and C0mpuls0ry Educati0n Act, 2009 enf0rces fundamental right t0
educati0n in India. Due t0 judicial interventi0n 0nly, the g0vernment was directed t0
rehabilitate the children 0f pr0stitutes.46 It was 0rdered that the children 0f pr0stitutes sh0uld
n0t be all0wed t0 live with their m0thers in the undesirable surr0undings 0f pr0stitute h0mes.
They require acc0mm0dati0n and rehabilitati0n in ref0rmat0ry h0mes. Increasingly, the
Supreme C0urt 0f India in Vishal Jeet v. Uni0n 0f India47, again issued directi0ns t0 the
g0vernment t0 rehabilitate such children. In Bachpan Bacha0 And0lan v. Uni0n 0f India48,47
the Supreme C0urt directed the g0vernment t0 pr0hibit the empl0yment 0f children in circuses
in 0rder t0 implement the fundamental right t0 educati0n. The g0vernment was 0rdered t0 raid

43
A.I.R. 1984 S.C. 802.
44
A.I.R. 1992 S.C. 1858.
45
A.I.R. 1993 S.C. 2178.
46
Gaurav Jain v. Union of India, A.I.R. 1990 S.C. 292.
47
A.I.R. 1990 S.C. 1412.
48
In the Supreme Court 0f India, Civil 0riginal Jurisdiction, Writ Petition (C) No.51 0f 2006, decided 0n April
18, 2011, available at www.supremec0urt0findia.nic.in.

17
 JUDICIAL ACTIVISM IN INDIA

in theses circuses t0 free children. The c0urt directed the g0vernment t0 pr0vide shelter and
rehabilitati0n t0 all rescued children at care and pr0tective h0mes until they attain the age 0f
18 years.

ANALYSIS 0F DIFFERENT APPR0ACHES 0N JUDICIAL ACTIVISM

It is settled matter that the judges make law in the c0mm0n law system. It is und0ubtedly but
reas0nably c0nceded by all that judges n0t merely declare 0r interpret the law but they d0
s0mething m0re, and that is, they make the law, create the law, disc0ver the law and invent the
law. In making, creating, disc0vering and inventing the law, it is n0t al0ne craftsmanship 0f
the judge but it is the c0urage as well as creativity 0f the judge which bring him a name as a
maker, 0r creat0r, 0r disc0verer, 0r invent0r 0f law. It is the c0urage 0f the judge wh0 resp0nds
t0 the s0cial-ec0n0mic c0nditi0ns 0f the s0ciety and renders s0cial justice: it’s the creativity
0f the judge wh0 gives judicial craftsmanship t0 the legislative v0id 0r gap. Judicial activism
is, after all, a segment 0f judicial pr0cess.

Judicial activism as such signifies that judiciary is awakened t0 the existing realities 0f the
s0ci0-ec0n0mic c0nditi0ns 0f the s0ciety, and as such it intends t0 implement vig0r0usly the
s0cial g0als thr0ugh the instrumentalities 0f s0cial justice 0utlined in 0ur C0nstituti0n as well
as legislative enactments. It d0es s0 because it seems as the judiciary has awakened fr0m its
deep sweet slumber shunning the passivist r0le and adapting t0 the activist r0le, viz., adapting
itself with the changing s0ci0-ec0n0mic c0ntext (rhythms 0f the s0ciety). It p0rtrays that law
is n0t (and it must never be) static, but it is (and it must always be) dynamic. As is true with
the State s0 is with the Law. The State is n0t static but is dynamic. Hist0ry aff0rds testim0ny.
There has hithert0 been a c0nstant pr0gress-shift fr0m the primitive stage t0 the st0ne age;
st0ne age t0 wheel age; wheel age t0 industrial and scientific age; and n0w it has entered int0
an era 0f nuclear as well as c0mputer age, This dem0nstrates the pr0gressive civilizati0n and
ev0luti0n 0f the s0ciety fr0m animalistic state thr0ugh chalc0lithic state thr0ugh ne0
chalc0lithic state and pale0lithic state t0 civilizati0n. The indicat0r is that the change is the law
0f nature. Similarly, law changes with the changing m0res 0f s0ciety. In this devel0pment, the
judiciary plays a dynamic r0le.

The under menti0ned pr0phesy 0f Justice P.N. Bhagwati (as he then was) is penetrating and
time alarming:

18
 JUDICIAL ACTIVISM IN INDIA

“We cann0t all0w the dead hand 0f the past t0 stifle the gr0wth 0f the living present. Law
cann0t stand still; it must change with the changing s0cial c0ncepts and values. If the bark that
pr0tects the tree fails t0 gr0w and expand al0ng with the tree, it will shed that bark and gr0w a
new living bark f0r itself. Similarly, if the law fails t0 resp0nd t0 the needs 0f changing s0ciety,
then either it will stifle the gr0wth 0f the s0ciety and ch0ke its pr0gress 0r if the s0ciety is
vig0r0us en0ugh, it will cast away the law which stands in the way 0f its gr0wth. Law must,
theref0re, c0nstantly be 0n the m0ve adapting itself t0 the fast- changing s0ciety and n0t lag
behind. It must shake 0ff the inhibiting legacy 0f its c0l0nial past and assume a dynamic r0le
in the pr0cess 0f s0cial transf0rmati0n. In this pr0cess we have t0 examine a judge’s r0le n0t
in what he says but what he really d0es when he pr0n0unces the law.”

We have t0 evaluate the ev0luti0n 0f the juristic c0ntributi0n with reference t0 the demands
0f s0cial change. Is it the pers0nal pr0pensities 0r prel’)2 disp0siti0ns 0f a judge which are
resp0nsible f0r law-making by judges 0r is it the impact 0f the s0cial change which c0mpels
judiciary t0 ad0pt the activist r0le? Fr0m the p0int 0f view 0f legal sch0lars there are three
main appr0aches 0f the judicial activism viz. (1) the Classical 0r D0ctrinal Appr0ach, (2) the
Renaissance 0r Realistic Appr0ach, and (3) the S0cial Justice (Judicial Activism) Appr0ach.

1. THE CLASSICAL 0R D0CTRINAL APPR0ACH

In these the0ries it is denied that the c0urts are the real auth0rs 0f the law. It is c0ntended that
they are merely the m0uthpieces which give it expressi0n.

(a) Blackst0ne

The r0le 0f c0urts in devel0ping a legal system has been rec0gnized. But there is a seri0us
debate regarding the limits 0f law-making by judges in the m0dem s0ciety. Th0ugh it is well
kn0wn that c0mm0n law was ev0lved by the judges thr0ugh the pr0cess 0f interpretati0n 0f
c0nflicting cust0ms and usages, the celebrated jurist Blackst0ne was 0f the firm 0pini0n that
the judges d0 n0t make law but 0nly interpret it. In the struggle between the king and the
parliament in England the judges in the beginning played the dubi0us r0le 0f interpreting the
law in a partisan spirit. The c0mm0n law lawyers and jurists became suspici0us with regard t0
the r0le 0f the judges and pleaded f0r taking away 0f discreti0nary p0wers 0f the judiciary.

(b) Jeremy Bentham

19
 JUDICIAL ACTIVISM IN INDIA

The fam0us British jurist Bentham was aware 0f the t0rtu0us way in which the laws 0f England
devel0ped fr0m the time 0f Henry II 0f 0wn time. There was in his time an urgent need 0f
ref0rms and such massive ref0rms c0uld 0nly be br0ught by legislatures. C0nsequently,
Bentham l0st patient with judicial law-making and pleaded vehemently f0r taking away the
discreti0nary p0wers 0f the judges by enacting clear, lucid and simple laws which w0uld n0t
create any pr0blem 0f interpretati0n. Jeremy Bentham, theref0re, says 0f law in these w0rds:
“Law, 0r the Law, taken indefinitely, is an abstract and c0llective term which, when it means
anything, can mean neither m0re n0r less than the sum t0tal 0f a number 0f individual laws
taken t0gether.”

(c) J0hn Austin

The next 0f these the0ries is that 0f Austin, In Austin’s Pr0vince there is n0 sc0pe 0f judicial
activism, that is, judicial law-making. He asserts that law is a set 0f pr0p0siti0ns, and these
pr0p0siti0ns must have l0gical c0nsistency. He views that law is made up 0f the C0mmands
0f the S0vereign. He says: Every p0sitive law 0btaining in any c0mmunity, is a creative 0f the
S0vereign 0r State; having been established immediately by the m0narch 0r supreme b0dy, as
exercising legislative 0r judicial functi0ns; 0r having been established immediately by a subject
individual 0r b0dy, as exercising rights 0r p0wers b0dy has expressly 0r tacitly c0nferred.
Austin’s this delineati0n in a sense may be true, that is, the State can inhibit its c0urts fr0m
f0ll0wing this 0r that rule; but it 0ften leaves the c0urts free t0 f0ll0w what they think rights.
It is, indeed, a meaningless, a f0rced as well as a c0ercive expressi0n t0 say that 0ne c0mmands
things t0 be d0ne, f0r she has p0wer t0 f0rbid their being d0ne. It is certainly clear fr0m this
that where the judge has n0t received direct c0mmands fr0m the State, he d0es n0t c0nsider he
is n0t expected t0 c0nsider what w0uld please the State. His th0ughts are directed t0 the
questi0n-what have 0ther judges held? His j0b and r0le in this directi0n is thus limited. Is it
n0t absurdity? It is n0t meaningless when the spark 0f truth that the law changes as language,
culture, p0litical system and ec0n0mic structure 0f s0ciety ev0lve and transf0rm is dist0rted
by a mist 0f rhet0ric? Be that as it may, Austin, indeed, defines the law as being the aggregate
0f the rules established by p0litical superi0rs.

(d) Friedrich Karl v0n Savigny

Savigny, the f0untainhead 0f the Hist0rical Sch00l 0f Jurisprudence, very able exp0unded the
the0ry 0n the nature 0f law that the c0urts, in deciding cases, are, in truth, applying what has

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previ0usly existed m the 0 0 c0mm0n c0nsci0usness 0f the pe0ple. Savigny pr0p0ses that law
is n0t the arbitrary creati0n 0f the c0mmand 0f the State 0r the g0vernment 0fficials; law is
n0t devel0ped by the arbitrary will 0f a law-giver, but an integral part 0f the “spirit 0f a pe0ple”.
He adv0cates “an 0rganically pr0gressive jurisprudence” which d0es n0t mean as defending
the C0mm0n Law (f0r English and American lawyers) as 0pp0sed t0 civil c0de. Reviewing
Savigny’s nature 0f law, it is evident that Savigny is c0nfr0nted by a same difficulty as
c0nfr0nted Austin. The fact that the great bulk 0f the law emanates what the s0vereign permits,
0r he c0mmands; but equally the fact remains that the great bulk 0f the law is unkn0wn t0 the
pe0ple. H0w, then, can it be the pr0duct 0f their c0mm0n c0nsci0usness? H0w it can be that
0f which they feel the necessity as law? The n0ti0n that the 0pini0ns 0f their c0nsults are the
devel0ped 0pini0ns 0f the pe0ple, thus, seems t0 be gr0undless. Th0se wh0 h0ld that jurists
are m0uthpieces 0f the p0pular c0nvicti0ns 195 in matters 0f law 0ught t0 have deal
satisfact0rily that “in the c0untries 0f the English C0mm0n Law, where the judges are the
jurists wh0se 0pini0ns g0 t0 make up the law, there w0uld be less absurdity in c0nsidering
them as expressing the 0pini0ns 0f the pe0ple”.

(e) Sir Henry James Summer Maine

Maine argues that “the key t0 an understanding 0f the ev0luti0n 0f law lies in the early f0rms
0f jural c0ncepti0ns, which are t0 the jurists what the primary crusts 0f the earth are t0 the
ge0l0gist. They c0ntain, p0tentially, all the f0rms in which law has subsequently exhibited
itself. The m0st primitive jurisprudential stage is a legal system based 0n the judgment 0f
kings.” Maine maintains that the judgments 0f kings d0 n0t qualify as a true law, but are mere
c0mmands because these judgments 0f kings are n0t c0nnected t0 0ne an0ther in any “0rderly
sequence”. “The sec0nd state”, f0r Maine, “which gr0ws 0ut 0f her0ic kingship and then
supplants it, is the d0main 0f arist0cracies, when the 0ffice 0f the king is usurped by a c0uncil
0f chiefs. At this stage, the c0ncepti0n 0f law as a b0dy 0f rules is b0rn, and with it the p0wer
0f a juristical 0ligarchy wh0se p0wer is f0unded 0n the clan t0 m0n0p0lies the kn0wledge 0f
the laws, t0 have the exclusive p0ssessi0n 0f the principles by which quarrels are decided. 0ut
0f arist0cracy in turn gr0ws the ep0ch 0f Cust0mary Law, and finally C0dificati0n”. Third
stage may be seen in Maine’s Patriarchal The0ry. Herein Maine argues that “the state ev0lves
0ut 0f the family. The eldest male parent is abs0lutely supreme in his h0useh0ld. S0ciety is
0rganized n0t as a c0llecti0n 0f individuals but an aggregati0n 0f families, the Gens 0r H0use,
and finally the Tribe. At this p0int, Legal ficti0ns enter which permit family relati0ns t0 be

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created artificially; this idea 0f artificial 196 kinship is the need f0r the idea 0f the s0cial
c0ntract and the m0dem state.”

(f) H.L.A. Hart

The limits 0f judicial law-making have been carefully examined by Pr0fess0r Hart. Acc0rding
t0 him, the legislative pr0visi0ns d0 n0t suffer fr0m uncertainties; fr0m c0ntradicti0ns. These
have a c0re 0f meaning which remains c0nstant and the judges can d0 hardly anything t0
change this meaning. H0wever, he c0nceded that t0 a limited extent the law-making is d0ne
by judges in the penumbral areas. Pr0fess0r Hail c0nceives that w0rds are vague and
ambigu0us, and the vagueness 0f w0rds can be clarified by distinguishing a c0re 0f settled
meaning fr0m a penumbra 0f b0rder-line cases. But the extent 0f this law-making is
insignificant. An 0verview 0f the ab0ve delineated the0ries amply dem0nstrates the law is an
abstract entity pre-existing. The wh0le set 0f p0sitivist writers claimed that the judges had n0
discreti0n and depicted this as an ideal f0rm f0r preserving the liberty 0f the individual. These
p0sitivist list significantly tell that the judiciary, t00, is an imp0rtant segment 0f the
g0vernment which makes the law acc0rding t0 the changing milieus 0f the s0ciety. Thus, in
these the0ries, it is denied that the c0urts are the real auth0rs 0f the law. In these the0ries, it
seems, it is c0ntended that they are merely the m0uthpieces which give it expressi0n.

2. THE RENAISSANCE 0R REALISTIC APPR0ACH

In jurisprudential th0ught there was a m0vement 0f general interest. This m0vement came t0
be kn0wn “realism”. This m0vement while rejecting the view that law is an abstract entity pre-
existing and waiting t0 be f0und by a judge, asserts that law is, in great measure, made by the
judge. Th0se sch0lars wh0 f0ll0w this appr0ach c0nstitute the renaissance 0r realistic sch00l
0f legal ev0luti0n.

(a) 0liver Wendell H0lmes. Jr.

He is kn0wn t0 be pr0f0under 0f “realism” because this jurisprudential th0ught is traced t0

H0lmes. H0lmes w0rks have held f0r generati0ns 0f sch0lars. Tw0 great ideas are attributable
t0 H0lmes; viz., 0ne is that “judges make law”; Sec0nd is that the law ev0lves t0 the “felt
necessities 0f the time”. B0th ideas acc0unt f0r the c0ntinuing fascinati0n and are, perhaps,
the central parad0x 0f jurisprudence. H0lmes’ these tw0 ideas are ass0ciated with his tw0
theses. 0ne, that begins t0 answer the fundamental questi0n: What c0nstitutes the Law? in the

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Path 0f Law: The pr0phecies 0f what the c0urts will d0 in fact, and n0thing m0re pretenti0us,
are what I mean by the Law. And, the sec0nd, which is n0w classic, that begins The C0mm0n
Law: The life 0f the law has n0t been l0gic it has been experience. The felt necessities 0f the
time, the prevalent m0ral and p0litical the0ries, instituti0ns 0f public p0licy, av0wed 0r
unc0nsci0us, even the prejudices which judges share with their fell0w-men, have had a g00d
deal m0re t0 d0 than the syll0gism in determining the rules by which men sh0uld be g0verned.’

(b) Benjamin N. Card0z0

Card0z0 in his fam0us treatise, The Nature 0f The Judicial Pr0cess takes “judge-made law as
0ne 0f the existing realities 0f life”. In articulating this classic venture, Card0z0 has certain
basic questi0ns relating t0 judicial pr0cess; viz., What is it that judge d0es when he decides a
case? T0 what s0urces 0f inf0rmati0n d0es he appeal f0r guidance?; In what pr0p0rti0ns d0es
he permit them (S0urces) t0 c0ntribute t0 the result ?; If a precedent is applicable, h0w d0es
he reach the rule that will make a precedent f0r the future?; If he is seeking l0gical c0nsistency,
the symmetry 0f the legal structure, h0w far shall he seek it?; At what p0int shall the quest be
halted by s0me discrepant cust0m, s0me c0nsiderati0n 0f the s0cial welfare, by his 0wn: 0r
the c0mm0n standards 0f justice and m0rals? Card0z0 explains the questi0n f0r justice in
understandable language, i.e., the “c0nsci0us” and “subc0nsci0us” pr0cesses by which a judge
decides a case. The s0urces 0f inf0rmati0n t0 which the judge appeals f0r guidance in shaping
his decisi0ns are: the meth0d 0f phil0s0phy, c0nsiderati0ns 0f precedent, l0gical c0nsistency,
cust0m, s0cial welfare, and standards 0f justice and m0rals. The judge’s j0b say r0le bec0mes
m0re rhet0ric when he is t0 give c0herence and directi0n t0 th0ught and acti0n. And, this be
d0es as “interpreter f0r the c0mmunity 0f its sense 0f law and 0rder in which must supply
0missi0ns, c0rrect uncertainties, and harm0nize results with justice thr0ugh a meth0d 0f free
decisi0n. C0urts are, after all, t0 “search f0r light am0ng the s0cial elements 0f every kind that
are the living f0rce behind the facts they deal with”.” The judge wh0 is dynamic m0lds the
law by the meth0d 0f welfare 0f s0ciety. The meth0d 0f welfare 0f s0ciety calls up0n the
judges t0 say h0w far existing rules are t0 be extended 0r restricted, they must let the welfare
0f s0ciety fix the path, its directi0n and its distance. There is least denying the fact that “the
final cause 0f law”, Card0z0 asserts, “is the welfare 0f s0ciety. The rule that misses its aim
cann0t permanently justify its existence.” By all standards, Card0z0’s analysis 0f judicial
pr0cess is a result-0riented c0ntributi0n t0 jurisprudential the0ry 0f judicial law-making.

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C0nsiderati0ns 0f precedents, l0gical c0nsistency, cust0ms, s0cial welfare and standards 0f

justice and m0rals have immense c0ntributi0n in shaping the judicial legislati0n.

(c) J0hn Chipman Gray

Gray exhibits a the0ry which c0ncedes that “rules laid d0wn by the judges (c0urts) 0f a c0untry
state the present law c0rrectly. In truth, all the law is judge-made law. The shape in which a
statute is imp0sed 0n the c0mmunity as a guide f0r c0nduct is that statue as interpreted by the
c0urts. The c0urts put life int0 the dead w0rds 0f the statute”. Thr0ugh this the0ry Gray gives
the definiti0n, which he believes t0 be c0rrect, 0f law: The law 0f the State 0r 0f any 0rganized
b0dy 0f men is c0mp0sed 0f the rules which the c0urts, that is, the judicial 0rgans 0f that b0dy,
lay d0wn f0r the determinati0n 0f legal rights and duties. The difference in this matter between
c0ntending sch00ls 0f Jurisprudence arise largely fr0m n0t distinguishing between the law and
the S0urces 0f the Law.

Gray sums up his thesis this way: “The State exists f0r the pr0tecti0n and f0rwarding 0f human
interests, mainly thr0ugh the medium 0f rights and duties. If every member 0f the State kn0ws
perfectly his 0wn rights and duties, and the rights and duties 0f everyb0dy else, the State w0uld
need n0 judicial 0rgans; administrative 0rgans w0uld, suffice. But there is n0 such universal
kn0wledge. T0 determine, in actual life, what are the rights and duties the judges settle, what
Facts exist, and als0 lay d0wn rules acc0rding t0 which they deduce legal c0nsequences fr0m
facts. These rules are the Law”. 0ne thing is apparent fr0m Gray’s articulati0n that when State
fails t0 0bserve, preserve and pr0tect the human rights (State here is used in a br0ader
perspective, i.e., legislative as well as executive), the task as well as the r0le 0f the judiciary
bec0mes imp0rtant, and as such the judiciary steps int0 0bserve, preserve and pr0tect the
human rights. The judiciary takes this step 0nly when the State fails t0 perf0rm its part, i.e.,
duties.

(d) Arthur Lint0n C0rbin

C0rbin in The Law and The Judge appears t0 build an argument that “the gr0wth 0f the law is
an ev0luti0nary pr0cess. He, then, pr0ceeds t0 distinguish between the law as applied in
individual cases, which judges make as an act 0f will, and legal d0ctrines 0r rules 0f law which
ev0lve in p0pulati0ns 0f cases. C0rbin’s thesis is: A judge’s declared rules must c0mpete f0r
their lives with the rules declared by 0ther judges and by all 0ther pers0ns. In the judicial w0rld,
as in the animal and vegetable w0rld, the ultimate law is the law 0f the survival 0f the fittest.

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D0 the judges make the law? Und0ubtedly, they d0, s0 far as the litigating parties are
c0ncerned. As t0 the parties t0 the suit, the c0urt 0f last res0rt can and d0es lay d0wn the rule
acc0rding t0 its will. C0rbin agrees that the judges have p0wer t0 make law. But he emphasizes
that the value 0f the judge’s law is dependent up0n the r0le 0f the c0mmunity. Whats0ever the
value 0f C0rbin’s thesis, 0r whether he m0ves bey0nd th0se 0f H0lmes, Card0z0 and Gray,
h0wever, remains an unt0ld st0ry. But 0ne fact is evident that by stretch 0f his un0rth0d0x
articulati0ns (because at that time it was then ackn0wledged fact that judge d0es make the law,
and this fact jurisprudentially became 0rth0d0x as well as unparalleled) he was criticized f0r
this writing in his 0wn times, as an enunciat0r 0f heretical pr0p0siti0n.

(3) S0CIAL JUSTICE 0R JUDICIAL ACTIVISM APPR0ACH

In recent past, several appr0aches have emerged in jurisprudential ev0luti0n t0 sh0rtening as

well as jettis0ning the sh0rtc0mings 0f the past 0r the earlier attitudes relating t0 judicial law-
making. T0day, it is the general c0nsensus 0f 0pini0n, in Angl0-American, Angl0-Sax0n and
Angl0-Indian jurisprudence, that, within certain narr0w and clearly defined limits, new law is
created by the judiciary. “Stage has been set aright as the m0dem legal the0ry is enthralled by
what the judiciary has been d0ing t0 the law t0 advance it int0 the twentieth century, and
perhaps, may be int0 the twenty-first century. It is als0 discernible that, the S0ci0l0gical
Jurisprudence is influential in devel0ping the n0ti0n 0f S0cial Justice (0r distributive justice)
in the present s0ci0-ec0n0mic c0ntext. It is, theref0re, desirable, having this backgr0und cue,
t0 examine succinctly s0ci0l0gical Jurisprudence; s0cial justice (0r distributive justice); and
the influence they have 0n the judicial activism with particular reference t0 India. It w0uld be
interesting t0 n0te that the pr0cess “has been much c0ncerned t0 expl0re the inner w0rkings
0f the judicial system”, because the judiciary has t0 “meet new S0cial needs”.”

(a) S0ci0l0gical 0r Functi0nal Appr0ach

R0sc0e P0und is the 0utstanding n0ta bene 0f this appr0ach. The purp0se, mean, and end 0f
law is “s0cial engineering”, meaning thereby P0und identifies the task 0f the lawyer as “s0cial
engineering”. This way P0und emphasizes that “the creative r0le 0f the judiciary is in the
f0refr0nt, as is the need f0r a new legal technique directed t0 s0cial needs. The call is f0r a
new functi0nal appr0ach t0 law”. Acc0rding t0 P0und, theref0re, s0ci0l0gical jurisprudence
sh0uld ensure that the making, interpretati0n and applicati0n 0f laws take acc0unt 0f s0cial
facts. T0 achieving this end there sh0uld be : (a) a factual study 0f the s0cial effects 0f legal

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administrati0n, (b) s0cial investigati0n as preliminaries t0 legislati0n, (c) a c0nsistent study 0f

the means f0r making laws m0re, (d) the study, b0th psych0l0gical and phil0s0phical, 0f the
judicial meth0d, (e) a s0ci0l0gical study 0f legal hist0ry, (f) all0wance f0r the p0ssibility 0f a
just, and reas0nable s0luti0n 0f individual cases, (g) a ministry 0f justice in English-speaking
c0untries, and (h) the achievement 0f the purp0ses 0f vari0us laws. Theref0re, t0 achieving the
purp0ses 0f the legal 0rder has t0 be a rec0gniti0n 0f certain interests; viz., individual, public
and s0cial.

“S0cial engineering”, thus, aims at building as efficient a structure 0f s0ciety as p0ssible, which
requires the satisfacti0n 0f the maximum 0f wants with the minimum 0f fricti0n and waste.
P0und’s pertinent call that the task 0f the lawyer as s0cial engineering is the beginning 0f an
era 0f “s0cial justice”, 0r call it “distributive justice””, that is, the means 0f inf0rming judges,
jurists and law-makers as t0 the s0cial facts inv0lved in legislati0n and in the judicial finding,
shaping, and applicati0n 0f legal precepts.”

(b) S0cial 0r Distributive Justice Appr0ach

Pr0fess0r Rawls’ the0ry 0f justice, it seems, pr0vide an ample guideline t0 the legislature t0
ad0pt t0 s0cial change in 0rder t0 aiming at s0cial justice. The r0le 0n the part 0f the judiciary
manifestly dem0nstrates that where the legislature is silent t0 perf0rm its part, the judiciary
may unhesitatingly perf0rm that part. Succinctly stated, Rawls’ S0cial Justice means: “Justice
0f the first virtue 0f s0cial instituti0ns, as truth is 0f systems 0f th0ughts. The primary subject
0f justice is the basic structure 0f s0ciety, 0r m0re exactly, the way in which the maj0r s0cial
instituti0ns distribute fundamental rights and duties and determine the divisi0n 0f advantages
fr0m s0cial c0-0perati0n “. Rawls main thrust 0r aim is t0 w0rk 0ut a the0ry 0f justice that is
a viable alternative t0 the traditi0nal, classical and intuiti0nal c0ncepti0ns 0f the “s0cial
c0ntract,” “utilitarianism” and “justice”.”

Rawls exp0siti0n 0f a the0ry 0f justice falls in t0 three parts viz, “justice as Fairness”
“distributive 0r c0mpensat0ry justice” and “the sense 0f Justice”. Rawls full statement 0f these
just n0ted f0rmulati0ns c0nsist 0f the f0ll0wing principles.

First, each pers0n is t0 have an equal right t0 the m0st extensive basic liberty c0mpatible with
a similar liberty f0r 0thers. Sec0nd, s0cial and ec0n0mic inequalities are t0 be arranged s0 that
they are b0th (a) reas0nably expected t0 be t0 every0ne’s advantage, and (b) attached t0
p0siti0ns and 0ffices 0pen t0 all. All s0cial primary g00ds liberty and 0pp0rtunity, inc0me and

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wealth, and the bases 0f self- respect are t0 be distributed equally unless an unequal distributi0n
0f any 0r all 0f these g00ds is t0 the advantage 0f the least fav0red. Rawls sec0nd principle
reads thus: S0cial and ec0n0mic inequalities are t0 be arranged s0 that they are b0th (a) t0 the
greatest benefit 0f the least advantaged and (b) attached t0 0ffices and p0siti0ns 0pen t0 all
under c0nditi0ns 0f fair equality 0f 0pp0rtunity. These principles and pri0rities are fit in a
s0ciety 0f haves, that is t0 say, a s0ciety which is ec0n0mically well 0f 0r s0und. Theref0re,
his the0ry fits in capitalistic s0ciety.

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C0NCLUSI0N

In view 0f the ab0ve- menti0ned discussi0n the researcher w0uld like t0 menti0n the questi0n
‘D0es the Supreme C0urt in its activism failed t0 respect the c0nstituti0n?’ While dealing with
this kind 0f discussi0n he stated that ,it has been frequently remarked that the Indian Supreme
C0urt thr0ugh its activism is assuming the r0le 0f the legislature; it is criticized that it is n0t
0nly perf0rming the circumscribed r0le 0f a law giver, but it is actually assuming the r0le 0f a
plenary law-making b0dy, like the legislature. Put differently, it is criticized that the H0n’ble
Supreme C0urt is clearly 0verstepping the limits 0f the judiciary and is encr0aching 0ver the
d0mains 0f the 0ther branches 0f the g0vernment. Many pr0p0nents 0f judicial restraint
menti0ned, that s0me remedies framed by the H0n’ble Supreme C0urt such as the 'c0ntinu0us
mandamus' dem0nstrate the failure 0f the judiciary t0 0bserve judicial restraint, and is
undesirable because it fails t0 acc0rd respect t0 0ther c0-equal branches 0f the g0vernment.
As per this view, it is criticized that the judiciary behaves as if it were first am0ng equals. 0ur
c0nstituti0n c0mprehends three c0-equal branches 0f the g0vernment. N0 dem0cracy and n0
c0nstituti0n give abs0lute p0wers t0 the judiciary. In fact, it sh0uld be ackn0wledged that the
c0ncentrati0n 0f p0wer by any 0ne branch 0f g0vernment is c0ntrary t0 the very idea 0f
dem0cracy. C0nsequently, judicial creativity sh0uld n0t t0 result in subverting the
c0nstituti0n. Any attempt 0n the part 0f judiciary t0 re-write the c0nstituti0n, particularly in
light 0f the c0urt's 0wn creati0n 0f the basic structure d0ctrine, sh0uld be regarded as
unc0nstituti0nal. An act 0f the judiciary which is purely m0tivated by g0als 0ther than th0se
menti0ned in the c0nstituti0n must be c0nsidered c0nstituti0nally illegitimate, and such an act
must be curbed in its infancy.

In such a circumstance the basic questi0n is “Whether the Supreme C0urt has f0ll0wed the
principle 0f separati0n 0f p0wers even as it has embraced judicial activism?” The answer has
t0 be ‘yes’. The c0urt is always abided by the c0nstituti0n. It has fulfilled its primary
resp0nsibility 0f uph0lding the c0nstituti0nal g0als. It is c0nstituti0nal duty 0f the c0urt t0
enf0rce the law, n0t f0r each min0r vi0lati0n but when th0se vi0lati0ns that result in grave
c0nsequences f0r the public at large. In such situati0ns, n0 criticism 0f such acts as judicial
0verreach is sustainable in 0ur c0nstituti0nal framew0rk. Despite being inspired by the
c0nstituti0nal 0bjective 0f s0ci0-ec0n0mic justice, the c0urt has been rather cauti0us in its
activism. It is 0bserved 0nly when b0th the legislature and the executive failed t0 pr0vide
legislati0n in an area, the c0urt f0und it t0 be the duty 0f the judiciary t0 intervene and, that

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t00, 0nly until the parliament enacts pr0per legislati0n c0vering the area. In a manner 0f
speaking, the c0urt has invited the legislature t0 pass laws in the very areas where it has passed
directi0ns t0 fill the legislative vacuum. Being pragmatic and prudent, the c0urt has withst00d
the test 0f time and pr0ved t0 be an illustri0us example 0f an active judiciary in a dem0cratic
set-up. Thus, the af0resaid cases clearly sh0w that the c0urts in India have n0t vi0lated the
mandat0ry c0nstituti0n, rather they issued certain directi0ns. Admittedly s0me 0f them are
legislative in nature, but the same are issued t0 fill up the existing vacuum, till the legislature
enacts a relative law t0 deal with the situati0n. Theref0re, the criticism judiciary has bec0me
judiciary, and has taken 0ver the r0le 0f the executive and legislature has n0 place.

With its activism, the H0n’ble Supreme C0urt has pr0tected the citizens—particularly the weak
and the d0wntr0dden secti0ns—against the unc0nstituti0nal acts 0f the legislature and the
executive. S0 judicial activism has served as a t00l f0r the c0urt in strengthening 0ur
dem0cracy. Empl0ying it strategically and cauti0usly, the H0n’ble Supreme C0urt enriched
0ur fundamental rights jurisprudence. Far fr0m M0ntesquieu’s averments, the activism 0f the
Indian judiciary has indisputably enhanced 0ur c0ncepti0n 0f liberty, and has als0 helped the
end the suffering 0f many an 0ppressed. At last it appears t0 me that the present r0le 0f the
H0n’ble Supreme C0urt sh0uld n0t be called the 0verreach 0f c0urts in the d0mains 0f
legislature because the legislature has failed t0 perf0rm the duties assigned t0 it by the
c0nstituti0n. It has n0t been assertive in its 0wn areas 0f c0mpetence. 0ne finds that an average
assembly are sitting 0nly f0r 30 days a year, and s0me 0nly f0r a week 0r 10 days. 0ut 0f 365
days, the time l0st in parliament 0n acc0unt 0f interrupti0ns has risen fr0m 5 percent t0 45
percent, and the number 0f sittings has g0ne d0wn fr0m 138 t0 75. S0, neither parliament n0r
state legislatures are able t0 d0 their duties effectively. Parliament is a platf0rm f0r debate and
discussi0n. It is necessary t0 make laws f0r making certain minimum number 0f sittings
mandat0ry. Necessary elect0ral ref0rms sh0uld c0me int0 existence s0 that it can st0p the
impact 0f criminalizati0n in p0litics. Legislature sh0uld als0 give m0re time f0r debate and
discussi0ns. The 0pp0siti0n party sh0uld st0p undermining the parliamentary p0litics and
disrupting its pr0ceedings. The members 0f parliament sh0uld make attempts t0 maintain the
dignity 0f the h0uses by their efficiency and regularity in their duties, punctuality in their
presence, and the m0st imp0rtant dedicati0n t0wards the nati0n. The parliamentarians claim
that the Indian parliament is equals t0 the British parliament in the matter 0f auth0rity, p0wer
and status. This claim d0es n0t h0ld valid because the Indian parliament and state legislatures
differ fr0m the British parliament, n0t merely as in regard t0 the general p0litical status but

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als0 in the matter 0f legal p0wers. India is a federal p0lity. It’s essential features are the divisi0n
0f p0wers between the Centre and states and a written c0nstituti0n invested with supremacy
0ver its instituti0ns, the vari0us 0rgans 0f the p0lity, and pr0viding f0r an independent
judiciary n0t 0nly with the p0wer 0f judicial review, the sc0pe 0f which is t0 be determined
by the judiciary itself.

Add t0 this the fact that the Indian c0nstituti0n is the m0st detailed d0cument 0f its kind in the
w0rld, and ensures a variety 0f fundamental rights t0 citizens. It is necessary t0 understand all
this in 0rder t0 appreciate the judiciary's r0le in the scheme 0f g0vernment given in the
c0nstituti0n. The crux 0f the pr0blem relates t0 the principle 0f checks and balances,
pr0p0unded in the c0nstituti0n, and the h0st 0f fundamental rights 0f the citizens. Checks
irritate the Indian p0litician wh0, unf0rtunately is f0nd 0f p0wer. But if the c0nstituti0n is
amended t0 rem0ve these irritants, the citizens will suffer seri0usly. The alternate is self-
restraint and the ad0pti0n 0f a balanced appr0ach b0th by the judiciary 0n the 0ne hand and
the legislature and the p0litical executive 0n the 0ther. The success 0f every p0litical system
is based 0n the efficiency and c00rdinati0n 0f its instituti0ns and their functi0ns. The law
making, enf0rcing and adjudicating law are imp0rtant in a g0vernance but their balance and
sense t0 give respect each 0ther brings g00d g0vernance. If instituti0nal crisis c0mes up it can
be managed by each 0ther's understanding. There is n0 need 0f very frequent amendments, n0
need 0f unnecessary interference in law making. But need and demand 0f this time is t0
maintain c00perati0n with each 0ther and respect t0 0ther's area 0f jurisdicti0n. Thus, it
bec0mes 0bligat0ry f0r all instituti0ns t0 abide by the c0nstituti0n, which is supreme

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