Tuesday, December 11, 2012


By Arjun.M, Administrative Assistant, Centre for Public Policy Research

                          Judicial activism can be described when the judiciary steps in to the shoes of the executive or the legislature and embarks on the works and privileges of the other two organs rather than interpretation of law. This topic has assumed immense significance because today everything from river pollution to the selection of the cricket team and even the disposal of waste has become the purview of Judicial Activism. The Supreme Court of India in a recent judgment on May 5, 2010 in Selvi v. Karnataka considered the constitutionality of the investigative  Narco analysis technique holding it permissible only when the subject consents to its use. The decision taken by the Supreme Court of India about the 9th Schedule of the constitution deserves great attention.  It was an example of excessive judicial Activism. In this case, one of the most controversial judgments of the Supreme Court was that the ninth schedule of the Constitution was open to judicial Review.  The common citizens have discovered great relief in Judicial Activism   because of the inefficient administration and nonperforming of the other organs of Government and the wide spread corruption and criminality in the political sphere.  In many cases the courts acted in the right direction but in certain instances it made upset the constitutional system of separation of powers.  Today judicial activism has touched almost each and every aspect of life ranges from human rights issues to maintenance of public roads!

                                         Presence of an independent and impartial judiciary is an essential pre requisite for maintaining the essence of Democracy. In India the constitution was made the supreme law of land. The Executive, the Legislature and the judiciary are its creations. The Legislature makes laws, executive executes the laws and the judiciary interprets the laws. The courts were made custodians of the constitution. The judiciary in India commands considerable respect from the people. Judiciary used to look into the constitutional validity of a legislative measure or executive action and then declare it null and void if it is against the provisions of the constitution. This is known as the power of Judicial Review. When judiciary, under the guise of interpreting the law goes a step beyond and ends up giving the country new binding law which is usually different from the existing one then it constitutes Judicial Activism. The lack of concern by the Legislature for some pressing problems of the people and the near disappearance of responsible and responsive governance by the executive have compelled the courts to enforce the rights of citizens through novel and innovative strategies to meet the needs of the times. Whether it is environmental pollution, human right issues the court is upholding the constitutional rights. According to Anil Divan the famous lawyer, the great contribution of Judicial Activism in India has been to provide a safety valve and hope that justice is not beyond reach. It has flourished in India and has acquired enormous legitimacy with the Indian Public.

Brief History      
 In the initial years of 1950-67, the Supreme Court adopted the attitude of judicial restraint in which the court gave a strict and literal interpretation of the constitution. The nature and scope of judicial review was first examined by the Supreme Court   in A.K. Gopalan case where it accepted the principle of judicial subordination to legislative wisdom. But on the whole it limited itself and exercised judicial restraint.   The second phase unfolded with the Golaknath case which resulted in on open conflict between the judiciary and legislature. The parliament asserted its supremacy and the Supreme Court asserted its power of Judicial Review, which resulted in a series of constitutional amendments in which the parliament tried to limit the power of Judicial review. In the Emergency of 1975-77, the judiciary was made subservient to the legislature and executive. In Golaknath case, the Supreme Court gave an unprecedented judgment, which was clearly a case of Judicial Activism. The reason of imposing emergency was the decision of Allahabad High Court setting aside the election of Prime Minister Indira Gandhi to the Lok Sabha. The 42nd constitutional Amendment Act was also passed which put new limitations on the judiciary. After the emergency the 44th constitutional Act was passed which restored the judiciary’s position as it had existed before the emergency. In Minerva mills case the Supreme Court declared judicial review as part of the basic structure. Since 1980’s we saw the emergence of Judicial Activism as a powerful tool in Indian Polity. Thus now we find that the Supreme Court is no longer exercising judicial restraint. But in fact, it has taken up Judicial Activism so much. A court giving new meaning to a provision so as to suit the changing social or economic conditions or expanding the horizons of the right of the individual is said to be an activist court. Thus has given birth to Judicial Activism. In the words of Justice J. S. Varma “The role of the Judiciary in interpreting existing laws according to the needs of the times and filling in the gaps appears to be the true meaning of Judicial Activism

 Recent trends in Judicial activism

                                    It is generally understood that when the executive and Legislature are apathetic and fail to discharge their obligations it becomes the responsibility of the judiciary to adopt this activist approach. In the recent years the courts have adopted a pro active role to make up for the inefficiencies of the Executive. Thus the courts have passed several judgments in various areas of life.  Famous Author Subhash Kashyap says, “What has come to be called hyper activism of the judiciary draws its strength, Relevance and legitimacy from the inactivity, incompetence, disregard of law and constitution, criminal negligence, corruption, greed for power and money, utter indiscipline and lack of character and integrity among the leaders, ministers and administrators. As a result of this a vacuum was created in which the governmental machinery seemed to be totally helpless with the corruption in legislative and executive fields. The vacuum was filled in by the judiciary”. Judicial Activism has touched almost every aspect of life. Be it the case of bonded labor, illegal detentions, torture and maltreatment of women, the implementation of various provisions of the constitution, environmental problems, health, sports etc the courts took cognizance of each case and laid down various judgments to protect the basic human rights of each and every member of society. Judicial Activism has been criticized by politicians and some constitutional experts while it has been warmly welcomed generally by lawyers and the public. It is important to note that judicial Activism has so many merits but it has certain demerits. Supreme Court by evolving the doctrine of basic structure of the constitution limited the power of the parliament to amend the constitution. It was an innovation which widened the court’s power of Judicial Activism to an unlimited extent. The emergency of 1975 and lifting it in 1977 constituted defining moments for judicial Activism in India. Judicial Activism earned a human face in India by liberalizing access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justice V.R.Krishna Iyer and Justice P.N. Bhagwati. .  The court’s increased activism has been good and contributed a lot for India’s democracy.  The expensive, technical justice now becomes inexpensive and non technical through the growth of Public Interest Litigations. The important question today is not whether the Supreme Court could activate its judicial role, but to what extent the concepts of Judicial Activism and creativity are exercised.

The major criticism of Judicial Activism is that it is unconstitutional as the authority of legislative and executive is usurped by the judiciary which is not elected by the people.  The judiciary has encroached upon the jurisdictions of the executive and legislature and other independent and autonomous bodies. Through judicial Activism the Judiciary sometimes enters an area where it has no expertise and competence. In some instances Public interest litigations may be misused for populism by individuals and groups. Judicial Activism may upset the constitutional system of separation of powers along with checks and balances. It cannot be denied that the opinion of a single Judge is essentially a subjective opinion.  It cannot be as objective as a decision made around 500 parliamentarians. What is necessary is that  each  organ of  government  should discharge its  duty duly  and  according to the  constitution an when this happens the courts  will also  find  no reason to interfere  in the  activities  of  other  departments of  government.

It is very important to note that it must not lead the government by judiciary. Frequent confrontation between the Legislature, Executive and the judiciary will also damage our well established democratic system of governance. Members of both the institution have sworn to uphold the constitution, which alone is supreme. Both sides will maintain and respect the line of demarcation of power under the constitution and will not allow a conflict to develop between them.


Anonymous said...

Thank you for the insights into Judicial Activism. There is however a part where I would like to have some clarity. While on the topic of Activism, there naturally arises another term, that of judicial overreach. Don't you think that is a far greater risk to the Constitution's separation of powers? My interpretation of judicial overreach is where the judiciary dictates the other two arms on how to go about its business. The 2G verdict being a case in point.


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