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JUDICIAL ACTIVISM AND ITS LIMITATIONS

Author: Ojaswi Ishani, III year of B.A.,LL.B. from Banasthali Vidyapith


Judicial Activism shows that judiciary in India is the most vigilant defender of democratic values and human rights. At the same, the Court cannot create rights which do no exist and have to be careful to see that they do not overstep their limits.


To understand this paragraph above first we have to comprehend judicial review

Article 13 of Indian ConstitutionAct 1950 [1]says that “State shall not make any law which takes away or abridges the right conferred by this part and any law made in contravention of this clause shall to the extent of the contravention be void”[2]. It speaks about laws inconsistent with or in derogation of fundamental rights. If we carefully analyseit, we will find that it is negative definition because it doesn’t say that what is law. Instead, it’s saying that what is not law.


But what if the state makes a law which does not satisfy Article 13? Of course, it will be void. But who will declare it void? These powers are given to supreme Court and High Courts. And this is called power of judicial review. The power of judicial review is given in Article 13 which says that: Any law, any action, any legislation, any amendment which is in

  • Violation

  • Abridgment or

  • Contravention

Of any thing which is given in part 3 of constitution will be declared as ultra vires. That means it will be null and void and will be struck down.


Later on, in the case of 'I.R coelho case vs State of Tamil Nadu 2007’[3] the supreme Court declared the power of the judicial review as a basic feature of the constitution or an element of the basic structure of the constitution. Hence, the power of judicial review cannot be curtailed or excluded even by a constitution amendment.


Judicial review is the mother of Judicial activism

The sentence is well said that judicial activism shows that judiciary in India is the most vigilant defender of democratic values and human rights. We will later see in this article that why it is called defender by illustrating some magnificent cases.


The concept of judicial activism originated and developed in the USA. This term was first coined in 1947 by Arthur Schlesinger Jr., an American historian and educator[4].


In India, the doctrine of judicial activism was introduced in mid-1970s. Justice V.R. KrishnaIyer, Justice P.N Bhagwati, Justice O. Chinnappa Reddy, Justice D.A Desai laid the foundation of Judicial activism in the country.


Meaning of judicial activism

“Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of Justice in the society. In other words, it implies the assertive role played by the judiciary to force the other two organs of the government(legislature and executive) to discharge their constitutional duties”[5].


Judicial activism is also known as “judicial dynamism”. It is the antithesis of “judicialrestraint”, which means theself control exercised by the judiciary.

Judicial activism is defined in the following way:

  • “Judicial activism is a way of exercising judicial power that motivates judges to depart from normally practiced strict adherence to judicial precedent in favor of progressive and new social policies. It is commonly marked by decision calling for social engineering, and occasionally these decisions represent intrusion in the legislative and executive matters”[6]

  • “Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent, or are independent of, or in opposition to supposed constitutional or legislation intent”[7].


Justification of judicial Activism

According to Dr.B. LWadehra, the reason for judicial activism are as follows:[8]

There is near collapse of the responsible government, when the legislature and Executive fail to discharge their respective functions. This results in erosion of the confidence in the constitution and democracy amongst the citizens. The citizens of the country look up to the judiciary for the protection of their rights and freedoms. This leads to tremendous pressure on judiciary to step in the air for the suffering masses.


Judiciary Enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. Itencourages the public interest litigation and liberalises the principle of ' Locus standi'. Here I would like to explain the concept of SUO MOTU” (The term is usually applied to actions by a judge taken without a prior motion or request from the parties)”[9]I think that it is also a part of judicial activism because Courts in India takes cases on their own and this power is not given to them or it is written nowhere. I have a report of “National human Rights commission which says that the Court took suo motu cognizance in 17 cases of alleged human rights violations reported by media during May, 2018”[10].


Legislative Vacuum, that is, there may be certain areas, which have not been legislated upon. It is therefore, upon Court to include in judicial legislation and to meet the changing social needs.


The constitution of India has itself adopted certain provision, which gives judiciary enough scope to legislate or to play and active role. Many times, those in power may be afraid of taking honest and hard decision for fear of losing power and, for that reason, may have public issues referred to courts as issues of law in order to mark time and delay decision or to pass on the odium of strong decision making to Courts.


The concept of judicial activism is closely related to the concept of public Interest Litigation (PIL). It is the judicial activism of supreme Court which is the major factor for the rise of PIL. In other words, PIL is an outcome of judicial activism. In fact, PIL is the most popular form (or manifestation) of judicial activism.


“It is said that activism is like beauty, often in the eye of beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged section of nation through public Interest Litigation is unexceptionable judicial activism”[11]. From 1979’ the judiciary led by supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the constitution and became an active participant in the dispenser of social justice.

In Hussainara Khatoon & ors vs home secretary, State of Bihar[12] and Sunil Batra, the court developed a new approach to secure access by the poor and the marginalised to justice — by relaxing the strict rules of standing to allow representative standing and modifying the rules of judicial notice to allow the court to take suo motu notice of public events and transform them into litigation. However, the “public interest litigation” doctrine was shaped and developed in three key cases: Fertilizer Corporation Kamgar Union, S.P. Gupta and People’s Union for Democratic Rights”[13].


“In 1979, supreme Court advocate Kapil Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails”[14]


There are many instances where judiciary has overstepped limits to insurejustice. They are following: -

  • Kesavananda Bharti vs state of Kerala[15].

Judiciary overstepped its limit and announced the verdict that the State can’t amend the basic structure of constitution.

  • Supreme Court in Fertilizer corporation kamgar union v union of India[16] held that power of supreme Court under Article 32 is an integral part of the basic structure of the Indian constitution “becauseit 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.

  • Maneka Gandhi vs Union of India[17]

  • In the case of Vishakha vs State of Rajasthan[18], the court laid down some guidelines for asprotection of women.


Judicial Activism or Judicial intervention

Thomas Jefferson has said “Theconstitution, on this hypothesis, is a mere thing of was in the hands of judiciary, which they may twist and shape into any form they please”.


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.


In Vineet Narain v union of India[19] the supreme Court involved Article 32 and 142 of the Indian constitution and issued direction to the government in order to bring transparency and accountability in the central bureau of Investigation (CBI).


The second judges’ case (1983), and Third judges’ case(1988), which created the collegium system of appointment of judges, we’re not based on any provision I. The constitution. Article 124, which prescribes how supreme Court judges are to appointed, does not talk about of any of collegium system.


Recently, on 16 October 2015 the constitution Bench of Supreme Court Advocates on Record Association v union of India[20], 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 exiting collegium 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 people.However, it is submitted that NAJC decision should not be read as if the judiciary has crossed it’s Laxamanrekha. The role of the judiciary is one of interpreting and applying the law, not making a new one - (Sandra Day O’Connor).


Judicial Activism vs Judicial restraint

Judicial activism and judicial restraint are the two alternative judicial philosophies in the United States. Those who subscribe to judicial restraint contend that role of judges should be scrupulously limited; their job is merely to say what the law is, leaving the business of law making where it properly belongs, that is, with the legislators and executives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to color their judicial opinion. This view holds the “original intent” of the authors of the constitution and its amendments is knowable, and must guide the court[21]


Supreme Court Observation

While delivering a judgement in December 2007, the supreme Court of India called for judicial restraint and asked courts not to take over the function of the legislature or the executive, saying there is a broad separation of power under the constitution and each organ of the state must have respect for others and should not encroach on other's domain. In this context, the concerned Bench of the Court[22].

[1] Indian constitution Act 1950. [2]Indian constitution Act 1950. [3] I.R coelho vs State of Tamil Nadu 2007. AIR 2007 SC 861. [4]His article entitled as “The supreme Court: 1947” was published in the Fortune magazine. [5] Indian polity by M Laxmikanth. Fifth edition, Publication: Mc Graw Hill Education. [6] Black’s law Dictionary. [7] Merriam Webster’s Dictionary of law. [8]Dr. B.L Wadehra, public Interest Litigation: A Handbook, second edition, 2009, Universal Law publishing Company., pp.161- 162. [9] https://www.myadvo.in/blog/suo-motu-cognizance-by-the-indian-judiciary/. [10] https://nhrc.nic.in/press-release/suo-motu-cognizance. [11]The Hindu. [12]Hussainara khatoon& ors vs State of Bihar. AIR 1369,1979, SCR (3) 532. [13] https://www.thehindu.com/opinion/lead/restoring-legitimacy-to-pils/article5970631.ece. [14] https://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece. [15] Kesavananda Bharti v state of Kerala. (1979) 4 SCC 225: AIR 1973 SC 1461. [16] AIR 1981 S.C 344. [17] 1978 AIR 597, 1978 SCR (2) 621. [18] AIR 1997 SC 3011. [19] (1988) 1 SCC 226. [20]Writ petition (civil) NO. 857 of 2015. [21]Iran McLean and Alistair McMillar, Oxford concise Dictionary of politics, First Indian Edition,2004,p.284. [22]The Hindu,” Don’t cross limits, Apex Court asks judges”, December 11 2007.