– Student LLB (Hons.), VIth Semester, City Academy Law College, University of Lucknow
E-mail – [email protected]
No. – 91-6394148580,
SCOPE OF JUDICIAL
is true on some occasions, courts have overstepped their limits. But, by and
large, judicial activism has done a great service to society.
begin with, what does the concept of ‘judicial
activism’ mean? Let me try to put it in proper perspective with
Under the Indian Constitution, the State is under
the prime responsibility to ensure justice, liberty, equality and fraternity in
the country.1 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 individuals’
fundamental rights against the State’s unjust, unreasonable and unfair
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
? Professor, Former
Chairperson, Department of
Law, Panjab University, Chandigarh.
Professor, National Law University, Delhi.
Constitution of India, 1950, the Preamble.
The judicial activism is use of judicial power to
articulate and enforce what is beneficial for the society in general and people
at large. Supreme Court despite its constitutional limitation has come up with
flying colors as a champion of justice in the true sense of the word. JUSTICE…
this seven letter word is one of the most debated ones in the entire English
dictionary. With the entire world population being linked to it, there is no
doubt about the fact that with changing tongues the definition does change. The
judicial activism has touched almost every aspect of life in India to do
positive justice and in the process has gone beyond, what is prescribed by law
or written in black and white. Only thing the judiciary must keep in mind is
that while going overboard to do justice to common man must not overstep the
limitations prescribed by sacrosanct i.e. The Constitution.
Judicial activism describes judicial rulings
suspected of being based on personal or political considerations rather than on
The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
History of Judicial Activism
The exact history of judicial activism is unclear,
but it is believed that the concept has been around for centuries. However, a
man named Arthur Schlesinger, Jr. brought about the term judicial
activism in 1947. Schlesinger was a specialist in American History, and was
well known for his study of 20th century American Liberalism.
Schlesinger introduced the term in a Fortune Magazine article
published that year entitled “The Supreme Court: 1947.” In the
article, Schlesinger grouped the courts into three categories: (1) judicial
activists, (2) champions of self-restraint, and (3) a middle group.
Since the term first hit the political-judicial
stage, it has been a point of controversy. This is especially interesting, as
Schlesinger never truly defined the term. Since the term’s inception, there
have been varying opinions on what the term judicial activism truly means.
Law professor and leading constitutional scholar,
David A. Strauss, has offered his opinion that judicial activism can take at least
three forms. These include:
act of overturning laws as unconstitutional
contrary to a previously issued constitutional interpretation
A good example of the history of judicial activism
is the 1954 case of Brown v. Board of Education. In 1951, a group of parents, on behalf of their
children, filed a lawsuit against the Board of Education of the City of Topeka,
Kansas. The parents had attempted to enrol their African-American children in
the closest neighbourhood school that year, but were refused enrolment. The
suit requested that the school district reverse its policy of racial segregation, in which the district operated separate schools
for black and white children. The plaintiffs in the case claimed that racial
segregation resulted in inferior facilities, accommodations, and treatment of
The District Court ruled in favour of the Board of
Education, based on the prior ruling of Plessy v.
Ferguson, a case that
upheld state laws requiring segregated transportation on trains. When the
parents appealed their case to the U.S. Supreme Court, the Court ruled that
segregation of whites and blacks in school was indeed unconstitutional, as it
was harmful to black students.
This ruling flew in the face of the legal doctrine
of stare decisis, which requires judges to uphold prior rulings of
higher courts. This is also referred to as “case precedent.” In this case,
rather than relying on the ruling in Plessy
v. Ferguson, which was a similar case, the Supreme Court overruled it.
This ruling on
desegregation of public schools came with considerable resistance, as opponents
of the ruling believed that the Court had relied on statistics and social
theories, rather than on established law. This meant to them that the Supreme
Court Justices had acted outside of its powers by creating new law. Supporters
of the decision believed, on the other hand, that the court’s exercising of
judicial activism was appropriate. They argued that the court should use its
power to adapt existing laws to address problems in current society.
Toward the end of
the 20th century, the U.S. Supreme Court was seen as a powerful judicial body
exercising greater activism than ever before. Conservatives criticized many of
the justices, claiming they struck down many state and federal laws based on
their own liberal political beliefs. The history of judicial activism shows us
however, that both liberals and conservatives are known to take part in, and
benefitting from the practice, while accusing the other group of doing so.
powers of the Supreme Court and High Courts in India
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.2
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 India3 held 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 their enforcement,
if 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
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.
2 L. Chandra Kumar v. Union of India, (1997)
3 S.C.C. 261.
3 A.I.R. 1981 S.C. 344.
4 People’s Union for Democratic Rights v Union of India,
(1982) 3 S.C.C.
Further more, 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.5 However it should be used with proper care and caution. In Pritam Singh v. The State,6 the Supreme
Court said that wide discretionary
power under Article
136 should be exercised sparingly and in exceptional cases only. In Tirupati Balaji
Developers Pvt. Ltd. v. State of Bihar,7 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.
curative petition has been
invented by the higher
judiciary in order
to prevent abuse of processor to cure gross miscarriage
of justice. It is also maintainable
in case of violation of the principles of natural justice.8 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.
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.
5 Union of India v. C Damani and Co., 1980
Supp. S.C.C. 707.
1950 S.C. 169.
8 RupaAshokHurrav. AshokHurra,(2002)4S.C.C.388.
In Vishaka v.
State of Rajasthan,9 the Supreme
Court held that in the “absence of
enacted law to provide for
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 guide lines and norms specified here in after for due observance
at all work places 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
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.10 Again,
the Supreme Court in Kalyan
Chandra Sarkar v. Rajesh
acknowledged the importance of Article 142 of the Indian
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 Work place (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
10 Vineet Narain
India, A.I.R.1998 S.C.889.
Judicial Activism and shift from Locus
Sstandi 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.12 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 Court
sin India have been
adopting innovative ways for redressing the grievances of the disadvantaged persons. In many
cases, the Supreme Court exercised
its epistolary jurisdiction13 and took suo motto actions on
mere post allotters 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 and given the birth to the Public
interest litigation in India.
public interest litigation made the
judicial process “more participatory
and democratic.”14 S.P. Sathe says: “The traditional
paradigm of judicial
process meant for private law adjudication had to be replaced
by an ewparadigm that was poly centric and even legislative. While under the traditional paradigm, a judicial decision
was binding on the parties (resjudicata) and
was binding in personam, the judicial
decision under public interest litigation
bound not only the parties to the litigation but all those similarly
12 Imtiyaz Ahmad v. State of Uttar
13 Sunil Batra
v. Delhi Administration,(1978)4S.C.C.494
14 S.P. Sathe,
in India (Sixth Indian Impression, OUP 2010)17
The Supreme Court
for Democratic Rights v. Union of India16
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. 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.
Corporation Kamgar Union v. Union of India,17 the court
held that public interest litigation
is part of the participative justice.
Further more, the Supreme Court in Bandhua
Mukti Morcha v. Union of India18
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
The Supreme Court of India in Sheela
Barse v. Union of India19 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.20
the land mark cases relating to the public
interest litigation was Hussainara Khatoon (I) v. State of Bihar.21 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.
16 (1982) 3S.C.C.235.
19 (1988)4 S.C.C.226.
20State of Himachal Pradesh v. A Parent of a
Student of Medical College, (1985) 3 S.C.C.169.
writ petition drawing the Court’s attention to the issue was
filed by an advocate. 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 bailor final release.
case of Sheela
State of Maharashtra,22 a
letter alleging custodial violence of women prisoners in jail was addressed to the Supreme Court. The
letter was written by
a journalist who had interviewed some women prisoners in jail. Treating the letter
as a writ petition, the Supreme
Court took cognizance and issued directions to the concerned authority.
Similarly, epistolary jurisdiction was exercised by the Supreme Court
v. Delhi Administration23 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 can not stop the
court from protecting the civil liberties
of the individuals.
In Municipal Council, Ratlam v.
Vardichand,24 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.25
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 Katarav. Union of India,26 a
writ petition seeking court’s directions, in order to provide immediate
medical treatment to the persons injured in road or other
accidents with out going through the technicalities
of the criminal procedure, was
filed by an advocate. 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.27 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
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 goun-redressed and justice is done to him.”28
However, the public interest
litigation should not be abused
by anyone.29 It
cannot be allowed
to be used for creating nuisance or for obstructing administration of justice.30
28 Id. at162.
Nathuji Thaware v. State of Maharashtra, A.I.R.2005 S.C.540.
Cause (A Regd. Society) v.
Union Of India and Others.
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, let it spring from the Judiciary.
power of judicial review is recognized as part of the basic structure of the
Indian Constitution. The activist role of the Judiciary is implicit in the said
power. Judicial activism is a sine qua non of democracy because without
an alert and enlightened judiciary, the democracy will be reduced to an empty
shell. Judicial activism in its totality cannot be banned. It is obvious that
under a constitution, a fundamental feature of which is the rule of law, there
cannot be any restraint upon judicial activism in matters in which the legality
of executive orders and administrative actions is questioned. The courts are
the only forum for those wronged by administrative excesses and executive arbitrariness.
activism is not an aberration. It is an essential aspect of the dynamics of a
It is a counter-majoritarian check on democracy. Judicial activism, however,
does not mean governance by the judiciary. Judicial activism must also function
within the limits of the judicial process.
judiciary is the weakest body of the state. It becomes strong only when people
repose faith in it.3 Such
faith constitutes the legitimacy of the Court and of judicial activism. Courts
must continuously strive to sustain their legitimacy. Courts do not have to bow
to public pressure, but rather they should stand firm against public pressure.
What sustains legitimacy of judicial activism is not its submission to
populism, but its capacity to withstand such pressure without sacrificing
impartiality and objectivity. Courts must not only be fair, they must appear to
be fair. Such inarticulate and diffused consensus about the impartiality and
integrity of the judiciary is the source of the Court’s legitimacy.
away judicial activism and tyranny will step in to fill the vacant space.
to sum up the judicial activism in India, it will be very appropriate to quote
the words of Dr. A.S. Anand, Chief Justice of India who said :
the Supreme Court is the custodian of the Indian Constitution and exercises
judicial control over the acts of both the legislature and the executive.”
2 S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.
L. & Pol’y 029 (2001)