Judicial Activism

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 Methods
There are various methods of judicial activism that are followed in
India. They are:
1. 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)
2. 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).
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. 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.
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.
Independent Indian Judiciary
It means that the other branches of the government, namely, the
executive and the legislature, does not interfere with the judiciary’s
functioning.
The judiciary’s decision is respected and not interfered with by the
other organs.
It also means that judges can perform their duties without fear or
favour.
Independence of the judiciary also does not mean that the judiciary
functions arbitrarily and without any accountability. It is accountable
to the Constitution of the country.
Indian Judiciary – Structure
India has a single integrated judicial system. The judiciary in India
has a pyramidal structure with the Supreme Court (SC) at the top.
High Courts are below the SC, and below them are the district and
subordinate courts. The lower courts function under the direct
superintendence of the higher courts.
The diagram below gives the structure and organisation of the judicial
system in the country.

Apart from the above structure, there are also two branches of the
legal system, which are:
1. Criminal Law: These deal with the committing of a crime by
any citizen/entity. A criminal case starts when the local police
file a crime report. The court finally decides on the matter.
 2. Civil Law: These deal with disputes over the violation of the
Fundamental Rights of a citizen.
Supreme Court has three types of jurisdictions. They are original,
appellate and advisory. The jurisdiction of the Supreme Court is
mentioned in Articles 131, 133, 136 and 143 of the Constitution.
Functions of Indian Judiciary – What is the role of the Judiciary?
The functions of the judiciary in India are:
1. Administration of justice: The chief function of the judiciary is
to apply the law to specific cases or in settling disputes. When a
dispute is brought before the courts it ‘determines the facts’
involved through evidence presented by the contestants. The law
then proceeds to decide what law is applicable to the case and
applies it. If someone is found guilty of violating the law in the
course of the trial, the court will impose a penalty on the guilty
person.
2. Creation of judge-case law: In many cases, the judges are not
able to, or find it difficult to select the appropriate law for
application. In such cases, the judges decide what the
appropriate law is on the basis of their wisdom and common
sense. In doing so, judges have built up a great body of ‘judge-
made law’ or ‘case law.’ As per the doctrine of ‘stare decisis’,
the previous decisions of judges are generally regarded as
binding on later judges in similar cases.
3. Guardian of the Constitution: The highest court in India, the
SC, acts as the guardian of the Constitution. The conflicts of
jurisdiction between the central government and the state
governments or between the legislature and the executive are
decided by the court. Any law or executive order which violates
any provision of the constitution is declared unconstitutional or
null and void by the judiciary. This is called ‘judicial review.’
Judicial review has the merit of guaranteeing the fundamental
 rights of individuals and ensuring a balance between the union
and the units in a federal state.
4. Protector of Fundamental Rights: The judiciary ensures that
people’s rights are not trampled upon by the State or any other
agency. The superior courts enforce Fundamental Rights by
issuing writs.
5. Supervisory functions: The higher courts also perform the
function of supervising the subordinate courts in India.
6. Advisory functions: The SC in India performs an advisory
function as well. It can give its advisory opinions on
constitutional questions. This is done in the absence of disputes
and when the executive so desires.
7. Administrative functions: Some functions of the courts are
non-judicial or administrative in nature. The courts may grant
certain licenses, administer the estates (property) of deceased
persons and appoint receivers. They register marriages, appoint
guardians of minor children and lunatics.
8. Special role in a federation: In a federal system like India’s,
the judiciary also performs the important task of settling
disputes between the centre and states. It also acts as an arbiter
of disputes between states.
9. Conducting judicial enquiries: Judges normally are called to
head commissions that enquire into cases of errors or omissions
on the part of public servants.
What was the National Judicial Appointment Commission
(NJAC)
The National Judicial Appointment Commission (NJAC) was a body
which was proposed to make appointments of Chief Justices,
Supreme Court judges, and High Court judges in a more transparent
manner as compared to the existing collegium system and to replace
the collegium system. The NJAC was proposed via the National
Judicial Appointments Commission Bill, 2014 by the then Minister of
Law and Justice, Ravi Shankar Prasad. The bill was passed by both
the houses; Lok Sabha and Rajya Sabha, and also received the
President’s assent. The commission was established by the 99th
Constitutional Amendment Act, 2014. The Act proposed that the
members of NJAC would be composed of members from the
legislative, judicial, and civil society.
Composition of the National Judicial Appointment Commission
(NJAC)
1. The Chief Justice of India would be the Chairman of the NJAC
2. Two senior-most judges of the Supreme Court
3. The Law and Justice Minister
4. Two eminent persons would be selected by a committee which
would be composed of the Prime Minister, the Chief Justice of
India and the Leader of Opposition
Procedure for filling up vacancies
 The Centre Government will make a reference to the NJAC in
cases of vacancies arising in the Supreme Court or High Courts.
 Existing vacancies would be notified to the NJAC within thirty
days of the commencement of the Act.
 A reference would be made to the NJAC six months prior to
when a vacancy arises due to the completion of a term.
 In scenarios of vacancy due to the death or resignation of
judges, a reference would be made to the NJAC within thirty
days of the occurrence of such events.
Procedure for selecting the Supreme Court judges
 For the selection of the Chief Justice of India: NJAC would
recommend the senior-most judge of the honourable Supreme
Court for the office of Chief Justice of India.
  For the selection of the Supreme Court judges: NJAC shall
recommend the names of judges on the basis of their merit and
ability.
 Veto power regulation: if any two members of the commission
disapprove of any name, NJAC would not recommend that
judge.
Procedure for selecting the High Court judges
 Chief Justice of High Courts: For the purpose of appointing
the Chief Justice of a High Court, NJAC would recommend
judges on the basis of seniority, ability, and merit combined.
 Other judges of High Courts: NJAC would nominate names
and then send those names to the Chief Justice of the concerned
high court for his views. The Chief Justice would then consult
with two senior-most judges or some other judges and advocates
if required. The views of the Chief Minister and Governor are
also taken into consideration before making the
recommendation.
 Veto power regulation: if any two members of the commission
disapprove of any name, NJAC would not recommend that
judge.
Transfer of Chief Justices and High Court judges
The NJAC is the chief body responsible for making recommendations
for the transfer of High Court judges and Chief Justices.