 Introduction

Under the Indian Constitution, the State is under the prime responsibility to ensure justice,

liberty, equality and fraternity in the country, State is under the obligation to protect the

individuals’ fundamental rights and implement the Directive Principles of State Policy. In order

to restrain the State from escaping its responsibilities, the Indian Constitution has conferred

inherent powers, of reviewing the State’s action, on the courts. In this context, the Indian

judiciary has been considered as the guardian and protector of the Indian Constitution.

Considering its constitutional duty, the Indian judiciary has played an active role, whenever

required, in protecting the individual’s’ fundamental rights against the State’s unjust,

unreasonable and unfair actions/ inactions.

Black’s Law Dictionary defines judicial activism as: “a philosophy of judicial decision -making

whereby judges allow their personal views about public policy, among other factors, to guide their

decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional

violations and are willing to ignore precedent”.

 ORIGIN:

Its emergence can be traced back to 1893, when Justice Mahmood of Allahabad High Court

delivered a dissenting judgment. 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.

 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

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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 cognizance 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-

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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, judgment 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 favored 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.

 Constitutional powers of the Supreme Court and High Courts in India:

Judicial activism happens when the courts have power to review the State action. Article 13 read

with Articles 32 and 226 of the Indian Constitution gives the power of judicial review to the higher

judiciary to declare, any legislative, executive or administrative action, void if it is in contravention

with the Constitution. The power of judicial review is a basic structure of the Indian Constitution.

Article 32 of the Indian Constitution gives right to every individual to move directly to the Supreme

Court of India for the enforcement of his or her fundamental right. Article 32 confers power on the

Supreme Court to issue any order or writ for the enforcement of any of the fundamental rights. The

Supreme Court in Fertilizer Corporation Kamgar Union v. Union Of India that the power of the

Supreme Court under Article 32 is an integral part of the basic structure of the Indian Constitution

“because it is meaningless to confer fundamental rights without providing an effective remedy for

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their enforcement, if f and when they are violated.” It cannot be suspended even during emergency.

An appropriate writ/ order under Article 32 for the enforcement of Articles 17, 23 and 24 can be

passed against a private individual also.

Increasingly, the Supreme Court has interpreted Article 32 in a very liberal manner in many cases

in order to enforce fundamental rights even against the private entities performing public

functions.

Article 226 of the Indian Constitution gives power to the High Courts to issue any appropriate

order or writ for the enforcement of fundamental right and other legal rights. In this context, the

Jurisdiction of High Court under Article 226 seems wider than the jurisdiction of Supreme Court

under Article 32. Both Articles 32 and 226 are basic structure of the Indian Constitution. Article

227 Further gives power of supervisory control to the High Court over the subordinate courts,

special courts and tribunals.

Furthermore, the Supreme Court has power to grant special leave to appeal from any judgment,

decree, determination, sentence or order in any cause or matter passed by any court or tribunal.

Under Article 136 of the Indian Constitution confers special power on The Supreme Court

exercises its special power in those cases where gross injustice happens or substantial question of

law is involved.

Power under Article 136 is discretionary one and can be exercised to decide the case on justice, equity

and good conscience; however it should be used with proper care and caution.

In Pritam Singh v.The State the Supreme Court said that wide discretionary power under Article 136

should be exercised.

In Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar the Supreme Court said that Article 136

does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant

to be exercised on the considerations of justice, call of duty and eradicating in justice.

Again, the higher judiciary in order to prevent abuse of process or to cure gross miscarriage of

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justice has invented curative petition. It is also maintainable in case of violation of the Principles

of natural justice the apex court in Rupa Hura judgment in 2002 said that the Bench

considering curative petitions should have the three top judges of the Supreme Court.

One of the most important constitutional provisions giving extraordinary power to the Supreme

Court is Article 142 of the Indian Constitution. This provision empowers the Supreme Court to pass

suitable decree or order for doing complete justice in any pending matter before it. Despite the fact

that the law-making power in India lies primarily with the Parliament only, the Supreme Court is

able to legislate under Article 142 of the Indian Constitution. This provision is responsible for the

judicial legislation in India. However, the judicial legislation is being done only when there is

vacuum in law on the concerned subject- matter. The directions or rules issued by the Supreme

Court Under Article 142 would remain into force until the Parliament makes proper legislation on

the subject matter. It means that the court understands the fact that appropriate law-making body is

the Parliament only. For Parliament have more resources the Supreme Court to pass suitable

legislation on the subject matter.

In Vishaka v. State of Rajasthan, the Supreme Court held that in the” absence of enacted law to

provide for the effective enforcement of the basic human right of gender equality and guarantee

against sexual harassment and abuse, more particularly against sexual harassment at work places,

we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or

other institutions, until a legislation is enacted for the purpose. This is done in exercise of the

power available under Article 32 of the Constitution for enforcement of the fundamental rights and

it is further emphasized that this would be treated as the law declared by this Court under Article

141 of the Constitution.

Considering the importance of Article 32 read with Article 142, it becomes necessary for the

judiciary that it should perform its constitutional obligation where there is no legislation on

the certain field and implement the rule of law Again, the Supreme Court in Kalyan

ChandraSarkar v Rajesh Ranjan acknowledged the importance of Article 142 of the India.

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Constitution and said that the court has power under Article 142 to issue directions and guidelines

for implementing and protecting the fundamental rights in the absence of any enactment. The court

reiterated that any such direction, filling up the vacuum of legislation, is the law of the land.

However, the Parliament has power to replace such directions e.g. the Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 replaced the Vishakha

Guidelines for prevention of sexual harassment issued by the Hon’ble Supreme Court of India in

the year of 1997.

 AREAS OF JUDICIAL ACTIVISM

During the past decade, many instances of judicial activism have gained prominence. The areas in

which judiciary has become active are health, child labor, political corruption, environment,

education, etc.

Through various cases relating to Bandhua Mukti Morcha, Bihar Under trials, Punjab Police,

Bombay Pavement Dwellers, Bihar Care Home cases, the judiciary has shown its firm commitment

to participatory justice, just standards of procedures, immediate access to justice, and preventing

arbitrary state action.

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  Judicial activism and shift from locus standi to public interest litigation:

Access to justice is a fundamental aspect of rule of law. If the justice is not accessible to all,

establishment of the rule of law is not possible. The individuals fail to reach justice system due to

various reasons including lack of basic necessities, illiteracy, poverty, discrimination, privacy, poor

infrastructure of the justice system, etc.

The Supreme Court of India has recognized in many landmark judgments that access to justice is a

fundamental right Indian Judiciary has played an active role in ensuring access to justice for the

indigent persons, members belonging to socially and educationally backward classes, victims of

human trafficking or victims of beggar, transgender, etc. Since Independence, the Courts in India

have been adopting innovative ways for redressing the grievances of the disadvantaged persons. In

many cases, the Supreme Court exercised its epistolary jurisdiction and took Suo moto actions on

mere postal letters disclosing the human rights violations in society. Human rights violations, which

published in the newspapers, were taken into judicial consideration. The court entertains the petitions,

which are being filed by the public-spirited persons in the public interest. By doing so, the superior

courts have liberated themselves from the shackles of the principle of locus standi. The shift from

locus standi to public interest litigation made the judicial process “more participatory and

democratic.” S.P. Sathe says: “The traditional paradigm of judicial process meant for private law

adjudication had to be replaced by a new paradigm that was polycentric and even legislative. While

under the traditional paradigm, a judicial decision was binding on the parties ( res judicata) and

was binding in personam , the judicial decision under public interest litigation bound not only the

parties to the litigation but all those similarly situated.” The Supreme Court in People’s Union for

Democratic Rights v. Union of India held that public interest litigation is different from the

traditional adversarial justice system. The court said that public interest litigation is intended to

promote public interest.

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Public interest litigation has been invented to bring justice to poor and socially or economically

disadvantaged sections of the society. The violations of constitutional or legal rights of such large

number of persons should not go unnoticed.

In Fertilizer Corporation Kamgar Union v. Union of India, the court held that public interest

litigation is part of the participative justice.

Furthermore, the Supreme Court in Bandhua Mukti Morcha v. Union of India 18 has justified the

public interest litigation on the basis of “vast areas in our population of illiteracy and poverty,

of social and economic backwardness, and of an insufficient awareness and appreciation of

individual and collective rights”.

The Supreme Court of India in Sheela Barse v. Union of India said: “The compulsions for the

judicial innovation of the technique of a public interest action is the constitutional promise of a

social and economic transformation to usher -in an egalitarian social -order and a welfare -

State ”. While passing any order under public interest litigation, the intention of the court is to

enforce constitution and rule of law in the society.

One of the landmark cases relating to the public interest litigation was Hussainara Khatoon (I) v.

State of Bihar. A series of articles exposing the plight of under trial prisoners in the State of Bihar

was published in a prominent newspaper. Many of the under trial prisoners had already served the

maximum sentence without even being charged for the offence. A writ petition an advocate filed

drawing the Court’s attention to the issue. While accepting it as public interest involved, the

Supreme Court held that right to speedy trial is a fundamental right under Article 21 of the Indian

Constitution. The court directed the State to provide free legal facilities to the under trials so that

they could get bail or final release.

In another case of Sheela Barse v. State of Maharashtra, a letter alleging custodial violence of

women prisoners in jail was addressed to the Supreme Court. A journalist who had interviewed

some women prisoners in jail wrote the letter. Treating the letter as a writ petition, the Supreme

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Court took cognizance and issued directions to the concerned authority. Similarly, the Supreme

Court in Sunil Batra v. Delhi Administration exercised epistolary jurisdiction when a prisoner’s

letter was treated as writ petition. The prisoner alleged in the letter that Head Warder brutally

assaulted another prisoner. The Court said that the technicalities cannot stop the court from

protecting the civil liberties of the individuals.

In Municipal Council, Ratlam v. Vardhichand, the Court admitted the writ petition filed by a

group of citizens who sought directions against the local Municipal Council for removal of open

drains. The Court said 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 need to focus

on the ordinary men.” Similarly, a petition seeking court’s directions for protecting the lives of

the people who made use of the water flowing in the river Ganga was accepted as public interest

litigation by the Supreme Court of India in the case of M.C Mehta v. Union of India. In this case,

the court directed the local bodies to take effective measures to prevent pollution of the water in the

river Ganga.

In Parmanand Katara v. Union of India a writ petition an advocate filed seeking court’s

directions, in order to provide immediate medical treatment to the persons injured in road or other

accidents without going through the technicalities of the criminal procedure. The Supreme Court

accepted the application of the advocate and directed the medical establishments accordingly.

Another good example of public interest litigation is S.P. Gupta v. Union of India. In this case, the

court recognized the locus standi of bar associations to file writs by way of public interest litigation.

It was said that questioning the executive’s policy of arbitrarily transferring High Court judges is in

the public interest. Explaining the significance of public interest litigation, the court observed that :

“It must now be regarded as well -settled law where a person who has suffered a legal wrong or a

legal injury or whose legal right or legally protected interest is violated, is unable to approach

the court on account of some disability or it is not practicable for him to move the court for some

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other sufficient reasons, such as his socially or economically disadvantaged position, some other

person can invoke the assistance of the court for the purpose of providing judicial redress to the

person wrongdoer injured, so that the legal wrong or injury caused to such person does not go un -

redressed and justice is done to him.”

However, the public interest litigation should not be abused by anyone. It cannot be allowed to be

used for creating nuisance or for obstructing administration of justice.

 Judicial activism and fundamental rights jurisprudence

In India, the judiciary has developed the fundamental rights jurisprudence while giving the liberal

interpretation to the ‘right to life and personal liberty’. In its landmark judgments, the Supreme

Court recognized prisoners’ rights including access to court and legal facilities right to meet his or

her family relatives and friend’s freedom of speech and expression right to compensation mental

privacy etc.

The judiciary in India is again responsible for the fundamental right to live in healthy

environment implementing Precautionary and Polluter Principles as basic features of the

sustainable development, the application of doctrine of public trust for the protection and

preservation of natural resources etc.

The Supreme Court recognized the fundamental right to education to children. In Bandhua Mukti

Morcha v. Union of India the Supreme Court held that right to education is implicit in and flows

from the right to life guaranteed under Article 21.

The Hon’ble Supreme Court of India in Mohini Jain v. State of Karnataka said that the

cumulative effect of Articles 21, 38, Article 39 (a) and (b), 41 and 45 bind the State to provide

education to all of its citizens. The Supreme Court declared that the right to education flows

directly from right to life. The right to life under Article 21 and the dignity of an individual cannot

be assured unless the right to education accompanies it. Finally, the Court announced that the State

Government is under an obligation to make endeavor to provide educational facilities at all levels to

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its citizens.

The Constitutional validity of right to education was again discussed by the Supreme Court in J.P.

Unnikrishnan v. State of A.P. The Supreme Court held that the right to education under Article

21 must be read with the directive principles in Part IV of the Indian Constitution. The Court said

that right to education means: “(a) every child/ citizen of this country has a right to free education

until he completes the age of fourteen years and (b) after a child/ citizen completes the age of 14

years; his right to education is circumscribed by the limits of the economic capacity of the State

and its developments.”

By the Constitution (Eighty -sixth Amendment) Act of 2002, three new provisions i.e., Article 21A,

new Article 45 and 51 -A (k) were inserted into the Indian Constitution. Currently, Right of

Children to Free and Compulsory Education Act, 2009 enforces fundamental right to education in

India. Due to judicial intervention only, the government was directed to rehabilitate the children of

prostitutes. It was ordered that the children of prostitutes should not be allowed to live with their

mothers in the undesirable surroundings of prostitute homes.

They require accommodation and rehabilitation in reformatory homes. Increasingly, the Supreme

Court of India in Vishal Jeet v. Union of India again issued directions to the government to

rehabilitate such children.

In Bachpan Bachao Andolan v. Union of India ,the Supreme Court directed the government to

prohibit the employment of children in circuses in order to implement the fundamental right to

education. The government was ordered to raid in theses circuses to free children. The court

directed the government to provide shelter and rehabilitation to all rescued children at care and

protective homes until they attain the age of 18 years.

 Judicial activism or judicial intervention

At many places, the Parliament has accused the judiciary on the ground of judicial intervention.

Parliament has said that the judiciary overreaches its constitutional power.

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In Prakash Singh v. Union of India, the petitioners sought directions against the Union of India

and State Governments to constitute various Commissions and Boards laying down the policies

and ensuring that police perform their duties and functions free from any pressure and also for

separation of investigation work from that of law and order.

Similarly, in Vineet Narain v. Union of India, the Supreme Court invoked Articles 32 and 142 of

the Indian Constitution and issued directions to the government in order to bring transparency and

accountability in the Central Bureau of Investigation (CBI).

On May 11, 2016, the Hon’ble Supreme Court of India in Swaraj Abhiyan - (I) v. Union of India &

Ors. Directed the Ministry of Agriculture in the Union of India to update and revise the Drought

Management Manual. The apex court also directed the Union government to set up a National

Disaster Mitigation Fund within three months.

Nevertheless, Finance Minister, Arun Jaitley expressed the difficulty to create a third fund outside

the National Disaster Response Fund and the State Disaster Response Fund, keeping in view that the

Appropriation Bill is being passed. He also raised concern about India’s budget -making being

subject to judicial review.

Recently, on 16 October 2015 the Constitution Bench of Supreme Court in Supreme Court

Advocates -on-Record -Association v. Union of India, in a majority of 4:1 declared the National

Judicial Appointments Commission (NJAC) Act and the Constitutional Amendment

unconstitutional as violating judicial independence.

The Court said that the existing collegiums system relating to appointment and transfer of

judges would again become “operative.” Justice Khehar said that the absolute independence of

judiciary, from other organs of governance, protects the rights of the people.

The Supreme Court’s rulings on National Eligibility-cum -Entrance Test (NEET) i.e. , single test

for admissions in medical courses, reformation in Board for the Control of Cricket in India

(BCCI),filling up the judges’ post, etc. have been considered as the judicial intervention by the

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government.

There is no dispute on the fact that the judiciary should also self- regulate itself. It should also put

some restraints on its powers, whenever it is required. The Supreme Court in Divisional Manager,

Aravali Golf Course v. Chander Hass 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.”

However, it is submitted that NJAC decision should not be read as if the judiciary has crossed its

Laxman Rekha. The Supreme Court is also welcoming the full -fledged debate on the existing

collegiums system and wants it to be updated. Indian Constitution has given the special status to the

Supreme Court and High Courts. Indian higher judiciary has power to review any legislative,

executive and administrative action of the State. The Higher Courts in India entertain the petitions,

which are being filed by the public-spirited persons in the public interest. Again, one should not

forget that it is all because of the judicial activism that the indigent persons, members belonging to

socially and educationally backward classes, victims of human trafficking or victims of beggar,

transgender, etc. have somehow been provided with the adequate legal assistance in the process of

the enforcement of their fundamental rights.

Furthermore, Article 142 of the Indian Constitution gives the Supreme Court a power to pass

suitable decree or order for doing complete justice in any pending matter.

 CONCLUSION

Judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts

become activists and compel the authority to act and sometimes also direct the government and

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government policies and also administration. It is a way through which justice is provided to the

disadvantaged and aggrieved citizens. Judicial activism refers to the interference of the judiciary in

the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the

government.

In recent years, as the incumbents of Parliament have become less representative of the will of the

people, there has been a growing sense of public frustration with the democratic process. That is why

the Supreme Court had to expand its jurisdiction by, at times, issuing novel directions to the

executive.

Failure on part of the legislative and executive wings of the Government to provide ‘good

governance’ makes judicial activism an imperative. Delivering justice to a population of over a billion

does not sound like and never will be an easy task. It however becomes increasingly difficult in a

country like India.

Judicial activism has arisen mainly due to the failure of the executive and legislatures to act.

Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have

failed to deliver the goods. Thirdly, it occurs because the entire system has been plagued by

ineffectiveness and inactiveness. The violation of basic human rights has also led to judicial activism.

Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism

has gained significance.

 Some other situations that lead to judicial activism are follows:

 When the legislature fails to discharge its responsibilities.

 In case of a hung parliament where the government is very weak and instable.

 When the governments fail to protect the basic rights of the citizens or provide an honest,

efficient and just system of law and administration,

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  When the party in power misuses the courts of law for ulterior motives as was done during

the Emergency period, and

 Finally, the court may on its own try to expand its jurisdiction and confer on themselves

more functions and powers.

Judicial activism is the practice going beyond the normal law for the jury. There are some very

important cases where judicial activism plays an important role like Bhopal gas tragedy and the

Jessica Lal Murder case are among the top two. Money and muscle power tried to win over the good.

But lately, it was with the help of judicial activism that the case came to at least one decision.

The Judiciary cannot take over the functions of the Executive. The Courts themselves must display

prudence and moderation and be conscious of the need for comity of instrumentalities as basic to

good governance. Judicial activism has to be welcomed and its implications assimilated in letter and

spirit. An activist Court is surely far more effective than a legal positivist conservative Court to

protect the society against legislative adventurism and executive tyranny. When our chosen

representatives have failed to give us a welfare state, Judiciary plays an active role. In judicial

activism, the judge places his final decision with his heart and mind, which is emotionally handled.

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