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Judicial Activism in India

In this article, the author has defined and explained the concept of Judicial Activism in the context of India, with the help of secondary data.


Judicial activism, an approach to the exercise of Judicial review, or a description of a particular Judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions


Judicial activism has flourished in India and acquired enormous legitimacy with the Indian public. However, this activist approach by the judiciary is bound to create friction and tension with the other organs of the state. Such tension is natural and to some extent desirable.

Judicial activism earned a humane face in India with the liberalizing of access to justice and granting of relief to disadvantaged groups and the have-nots through public interest litigation (PIL).

A postal letter or even a postcard addressed to the court is accepted to initiate prerogative writs, with courts disregarding the technicalities. The Supreme Court of India relaxed the traditional concept of the locus by allowing public-spirited citizens to bring public causes to the court. Thus, the number of PIL actions has increased since 1977.

The growth of PIL post-1977 is mainly attributed to incidents that happened during the emergency rule between 1975 and 1977. One can see the marked differences between the Judicial approach before 1977 and post-emergency rule in India. This shift in strategy reflected the changing times and desires of the people. Several cases of abuses of fundamental human rights were identified during the emergency period, but the courts took a cautious approach.

In ADM Jabalpur v Shukla (1976) 2 SCC 521, the Supreme Court held that a prisoner under preventive detention did not have a common law right to obtain relief from the courts for an unconstitutional and unreasonable preventive detention order, even though it was given without legal authority. The reason given by the court was that the fundamental rights guaranteed under the constitution were suspended during the emergency.

Since the judiciary was formed as an independent and separate government body under the Government of India Act, 1935, and then the Constitution of India, it is prudent to trace the origins of the judiciary after 1935. A new rule is introduced not only to address and fix the current issue but also to address all possible concerns that are not currently before the Court but are likely to arise in the future.


Judicial activism is when the Courts, after hearing both sides, move from their conventional position of decision-making to the position of the legislature and make new legislation, new rules, and new policies.

In the first decade of independence, activism on the part of the judiciary was almost nil, with political stalwarts running the executive, and the parliament working with great enthusiasm, the judiciary working with the executive.

From the 1950s to the 1970s, the Supreme Court held a full Judicial and institutional view of the constitution. In 1967

In Golak Nath v. the State of Punjab, the Supreme Court held that the constitutional rights of Part III of the Indian Constitution could not be modified, even though there was no such limitation in Article 368, which only included a resolution of a two-thirds majority in both Houses of Parliament. 

Subsequently, two years before the declaration of emergency, the Supreme Court ruled in the well-known case of Kesavananda Bharati that the government had no power to intervene with the constitution or change its fundamental characteristics.

In Kesavananda Bharati v. The State of Kerala, 13 Judge Bench of the Supreme Court overruled the Golakh Nath decision but held that the fundamental framework of the Constitution could not be changed. As to what is meant by ‘simple structure,’ it is still not clear, although some later verdicts have sought to clarify it. The point to be remembered, however, is that there is no reference in Article 368 that the basic structure could not be modified. Accordingly, the decision has amended Article 368.

A significant number of decisions of the Supreme Court of India, in which it has played an activist position, refer to Article 21 of the Indian Constitution, and we are therefore dealing with it separately.

Judicial intervention can be seen in three ways: Firstly, by overturning any statute as unconstitutional, Secondly, by overturning Judicial precedents, and, Thirdly, by reading the Constitution. In simple terms, Judicial activism can be seen as the political role played by the judiciary, much like the other two executive and legislative ones.

Evolution and Growth of Judicial Activism

Law comes primarily from two sources- legislative enactments and precedents or Judicial decisions.

Many provisions of the Constitution enable the judiciary to play an active role by asserting itself.

Article 13 empowers the Court to declare any law unconstitutional if it violates any fundamental right of citizens guaranteed by the Constitution.

An aggrieved person can approach the Supreme Court under Article 32 or any High Court under Article 226.

Article 19 enables the Supreme Court to determine whether restrictions imposed on the fundamental right are reasonable or not. Article 131 upheld the federal principle.

The Supreme Court is the highest Court of appeal in all criminal, civil, and constitutional matters, it enjoys advisory jurisdiction and has rulemaking power. It has the authority to make a final declaration as to the validity of the law and all its judgments are binding on all other Courts in India except itself.

From the above stated constitutional provisions, it is clear that the constitutional framework has given enough scope for Judicial activism as the judiciary, and especially the Supreme Court enjoys a unique position.

The emergence of Judicial was because of trends like the expansion of the power of Judicial review over the administration, extending the scope of its interpretation to achieve economic, social, and educational objectives and excessive delegation without limitation, etc.

Dimensions of Judicial Activism

The concept of Judicial activism is multidimensional, however, there cannot be a universal application of these dimensions; they vary according to constitutions and ideologies.

Political Science Professor Bradeley C. Canon had observed Judicial behaviour in leading democracies and considered six important dimensions – Majoritarianism, Interpretive Stability, Interpretive Fidelity, Substance Democratic-Process Distinction, Specificity of Policy, and Availability of Alternative Possible Maker.

  1. Majoritarianism: While exercising the power of Judicial review, the Court gives preferences to its own policy rather than legislative enactment. Majoritarianism is violated when any legislative enactment is declared unconstitutional by Court.
  2. Interpretive Stability: This is to measure the extent to which the Supreme Court upheld or overrules any precedent or any Judicial doctrine. An important example can be variance in interpretation of ‘personal liberty’ under Article 21, from A. K. Gopalan v. State of Madras to Maneka Gandhi v. Union of India.
  3. Interpretive Fidelity: This is to measure Judicial activism while interpreting the provisions of the Constitution when general meaning is ignored and a new meaning is assigned to it in accordance with the changing social and economic scenario of the society. More importance is given to the spirit of provisions than to its literal meaning, and in the case of provisions having some contradictions, a harmonious construction of meaning is emphasized. An important example can be the Basic Structure Doctrine that was propounded to have Judicial control over amending power of Parliament.
  4. Substance Democratic-Process Distinction: This includes court-made policies to regulate non-political activities of some institutions. In the Indian scenario, we have examples like reservation for oppressed classes and its extent, the theory of creamy layer, the doctrine of legitimate expectation, etc.
  5. Specificity of Policy: This category includes policies for taking over the management of schools, hospitals, and other institutions, and also includes the policies that specify the behavior to be followed by the government agencies.
  6. Availability of Alternative Possible Maker: This includes the cases when Court frame policies at the place of some other agency which is supposed to do so. Though the Supreme Court in India does not play much active role we have instances of Judicial policymaking. Supreme Court has framed policies regarding shifting of industries, policies to eradicate child labor and payment of compensation to child labor by their employers, guidelines regarding sexual harassment of women at the workplace, etc.


Judicial activism is good when it is for the benefit and development of under-advantage sections of society, but it should not interfere with the policy making power of government.

Now if the defence of failure of other branches of government is taken, the question can be raised about the results of failure of the judiciary to meet expectations, and also about its inefficiency.

By the same logic, they will take over the functions of the judiciary. Justice J. S. Verma said that Judicial activism is a sharp tool that has to be used by a skilful surgeon and not as a knife to kill.

It cannot be ignored that this socio-economic movement of the court has increased the hope of people for justice. This is necessary for democratic set-up and establishment of rule of law.

This activism should be accompanied with honesty and should win confidence and inspire faith in the minds of the public.

Judicial activism is an essential aspect of the dynamics of the constitutional court. It must work for the benefit of citizens but within the boundary or the limits of the Judicial process.

Court has to learn from its experience, adapt itself to social, economic, and cultural changes. While being active, the Court has to keep the scales in balance while deciding any dispute. 

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