Judicial Activism in India

This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues that existing public law theories, including regime politics, institutionalist models, and strategic models, fail to provide a complete account of patterns of judicial assertiveness in the Supreme Court of India. Instead, these theories should be supplemented by focusing o...

Beginning from 1970, Judicial Activism is still now multi-debated factor in the Indian socio-economic-political sphere. Alongside the judges of the High Courts and the Supreme Court, many scholars, even the students also deliver their statements and opinions focusing on this particular mysterious factor. They did their beautifully and perfectly. But in spite of this kind of efforts, they do not reach to a final single conclusion. So, focusing on this particular debate, they are divided into two sections. In them, one section claims that the Judiciary is continuously trying to color the provisions of the Constitution by practising the judicial activism. As per their view, it is not fair and good for the health of a democratic republican state where the theory of separation of powers has been permitted, because, by the judicial activism, Judiciary is trying to do this kind of job which is already vested in the hands of the Legislature. As a result, the concept of separation of powers which is considered as the backbone of a democracy is hampered. The other section on the other hand argues that the main job of the Judiciary is to protect the fundamental rights of the people alongside the Constitution in any difficult situation. So, Judiciary itself can take significant steps to remove the disputes which are considered as inconsistent with the fundamental rights contained in the Constitution. According to themselves, it is not judicial transgression, but it is the judicial activism to protect the nation and the aims of the Constitution-makers.
In this article, I am trying to show other various angles of this debate and also trying to go to a final decision.

This article discusses and analyzes the Judicial Activism and its application in protecting environment, and steps taken by judiciary to accelerate this objective. The main objective behind this research is to identify the contemporary picture and study the nature and extent of till date developments in various environmental statuses through judicial procedure. It also analyzes the role of judiciary, recent development and improvement of environment protection. It further views upon the constitutional aspects and the new trends in judicial approach in environmental protection.

Updated version of the ESG report on review of "A Review of Health and Environmental Implications of Bengaluru’s Solid Waste Landfills, Waste, Processing Sites and Dumping grounds"
This report was released to the press on 2.3.2018
The press release and the summary of the report can be found here: http://www.esgindia.org/campaigns/resources/justice-mr-n-kumar-retd-calls-widespread.html

In India, the Constitution is regarded as Supreme law of the land. No one is above the Constitution. It provides for three organs of the Government, viz., the Legislature, Executive and the Judiciary, each to function independently so that the rule of law in the state could be
upheld in the State. But, due to ineffective legislature and also because of the powers of the executive being in the hands of one person, there has been a series of inaction by the legislature. Henceforth, the Judiciary has involved itself to bridge the gap in the law which the state is lacking by means of establishing new doctrines, expanding the horizons of the law by giving wide interpretations and also by declaring new principles. Thus, the question arouse is that whether in doing so, is Judiciary encroaching the powers of the Legislature?

Amongst other things, this work presents a periodized study of Public Interest Litigation (PIL) in Pakistan based on an extensive qualitative and quantitative review of all 218 reported judgments of the Supreme Court in its original jurisdiction over a 25-year period (1988 to 2013). The qualitative analysis aims to provide a wide range of metrics for gauging shifts in PIL jurisprudence, the nexus of these shifts with judicial strategy, and the overall trends in judicial activism—and retreat—over time. The quantitative analysis is juxtaposed with the qualitative analysis to: (1) chart changes in the frequency and proportion of unconstitutional rulings (broadly defined as rulings that declare executive action or legislation unconstitutional); (2) observe the differential make up of litigants; and (3) examine the evolution of types of issues adjudicated over time.

On the basis of a combined evaluation of the qualitative and quantitative data, the study identifies and divides PIL into three “waves” of judicial activism punctuated by two “troughs” signifying judicial retreat. These waves and troughs are further sub-divided into distinct phases that represent milestones within each wave or trough. The periodized study also introduces into the PIL discourse new analytical categories for identifying and enumerating different types of PIL cases as well as for gauging the relative importance and currency of each type of PIL over time. These categories include: Typical PIL, Political PIL, Class Action PIL, and High Court Writ PIL.

A central conclusion of the PIL study is that despite the many changes that PIL has undergone in the quarter-century of its existence, it continues to evolve on a continuum that is remarkably unchanging in terms of the structural relationship between the judiciary and civilian-democratic politics. This is because of cyclical military interventions that have stunted, even hijacked, democratic transition and, in the process, used the constitutional courts for the twin purposes of legitimation of de facto government and de-legitimation of civilian politics. At the same time, the unique status of the Supreme Court as an intermediary between authoritarian and elected governments allows it to assert its autonomy and ascendancy over the political sphere in periods of civilian rule – and more recently against military-civilian partnerships that derive their formal legitimacy through international aid and rule of law rhetoric. The Supreme Court‘s assertion of autonomy grows out of its need for self-legitimation at the beginning of every cycle of democratic transition. The main casualty of this deeply institutionalized practice of “judicial self-legitimation” is the democratic process.

This article analyzes how the Supreme Court of India, through its activism and assertiveness, has emerged as arguably the most powerful court among democratic polities. Over the past four and a half decades, the Court dramatically expanded its role in the realm of rights and governance, asserting the power to invalidate constitutional amendments under the basic structure doctrine, control judicial appointments, and govern in the areas of environmental policy, monitoring and investigating government corruption, and promoting electoral transparency and accountability. In this article, I argue that the Court’s shift toward greater, yet selective, assertiveness in India’s governance can most adequately be explained by a new theoretical approach—elite institutionalism. This theory posits that the unique institutional and intellectual atmosphere of the Court shaped the institutional perspectives and policy worldviews that drove activism and selective assertiveness in governance. Elite institutionalism expands the scope of regime politics and institutional theories by situating judicial decision-making within the larger intellectual context of Indian judging. The identities of justices on the Indian Supreme Court are a subset of their overall intellectual identity and worldviews, which they share with professional and intellectual elites in India. This article illustrates how “elite meta-regimes” of opinion—the collective values and currents of professional and intellectual elite opinion on sets of constitutional or political issues—shaped justices’ worldviews. The broader shifts in the Court’s activism and assertiveness reflected a shift from the meta-regime of “social justice” to one of “liberal reform.”

Supreme court in India whose prime work is to interpret and protect the constitution of India and safe guard the fundamental rights of the citizens of India. It went under a roller coaster ride to revive and strengthen itself since its inception in 1950.during this journey it gave judgement which are considered as milestones in any legal system.It restored back the faith of citizens in judiciary through PILs.though criticized for intruding in other branches of state through its activism and populism.

"The Supreme Court of India is at long last becoming, after thirty two years of the Republic, a Supreme Court for Indians."
Upendra Baxi (1985: 107)

"The Indian Supreme Court clearly tried to spark a rights revolution
- but nothing happened."
Charles Epp (1998: 71)


BY their nature, socioeconomic rights evade the tidy codification and politically neutral language of first generation rights. Yet their proponents increasingly view the courts, the principal institutions for identifying legal duties and examining rights violations, as the natural, appropriate forum for demanding and enforcing socio-economic rights, with justiciability seen as a litmus test of a nation's capacity to protect and provide social justice.

Between the late 1970s and mid-1990s, the Supreme Court of India undertook a period of activism, proclaiming itself the "last resort for the oppressed and the bewildered"  and expanding existing rights to include justiciable socioeconomic dimensions.
This activism did not last and, while it did, it was by no means consistent. This paper seeks to explore why and how socioeconomic rights and rights-based discourses in general come to prominence in an apex court and how these discourses can just as quickly lose momentum. We find that, if there was a revolution, it was largely procedural and, a fortiori, that the Court adopted the language of socioeconomic rights but never truly embraced the Directive Principles as a site of sustained activism and that this failure is rooted in the nature of the Court as a strategic political actor seeking public legitimation rather than a 'rights revolution'.

In Part 1, we briefly discuss the nature and history of socio-economic rights and judicial activism in the Court, before exploring a selection of the post-Emergency Case Law in Part 2. Part 3 explores the 'supply-side' problem, attempting to understand the behaviour of the Court itself, while Part 4 seeks to understand the failure of wider society to translate judicial activism into an actual revolution, employing comparative cases from South Africa.

Judicial review is vulnerable to attack on two fronts. It does not, as it often claimed, provide a way for society to focus clearly on the real issues at stake. When citizens disagree about rights, and it is politically illegitimate, so far as democratic values are concerned by privileging majority among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality. JUDICIAL REVIEW IMRAN AYAZ

This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues that existing public law theories, including regime politics, institutionalist models, and strategic models, fail to provide a complete account of patterns of judicial assertiveness in the Supreme Court of India. Instead, these theories should be supplemented by focusing on a new variable — the values of national political, professional, and intellectual elites that influence judges‘ worldviews, attitudes, and role conceptions, as well as the way professional and political elites and the media evaluate assertive high court decisions. I refer to this approach as ― elite institutionalism. According to elite institutionalism, the unique institutional environment and broader normative and intellectual atmosphere of courts shape the institutional perspectives and policy worldviews that may drive or limit judicial activism and assertiveness. The article illustrates that the selective activism and assertiveness of the court in fundamental rights decisions reflected both the institutional values and motives of Supreme Court justices and the influence of elite meta-regimes — the broader consensus of political, professional, and intellectual elite worldviews on particular constitutional, political, and social issues. I argue that the Court's selective activism and assertiveness in politically significant fundamental rights decisions reflected a shift from the meta-regime of liberal restoration to that of reform.

The concept of independence of judiciary has always been a very passionating topic for discussion, which gained more momentum in the recent days owing to several reasons giving rise to many issues ranging from ones relating to judicial accountability to that of judicial activism vis-à-vis judicial independence. Lack of proper understanding of the concept of independence of judiciary has been the main cause for cropping up of such issues and undesirable delay in addressing them. There is an imperative need to understand that the concept of independence of judiciary is much more wider than mere separation of judiciary from legislature and the executive. It not only emphasizes on non-interference of legislature and the executive in the judicial proceedings but also requires the judiciary to remain independent. Judiciary’s duty to remain independent implies, inter alia, duty of the higher judiciary to allow the subordinate judiciary to remain independent and duty not to overreach on the legislative and executive domain in the name of judicial activism, which leads to fusion of power – an antithesis of separation of power. Judicial independence depends largely on judges themselves.

This paper delves into the history of the Judicial Activism in India and how some decision have stretched to be criticized as Judicial Adventurism, overreach. What truly matters is that the Activism arises from independent and uninfluenced thought of safe-guarding rights and fulfilling of a duty bestowed upon by a written constitution unto a Judicial Authority to check the imbalance of Separation of Powers-Legislative overreach and executive ordeal.

The author has ventured to design a series of six articles on "Higher Judicial Appointments and the Related Constitutional Virtues : A Contemporary Analysis".  This series of articles has basically been designed to concentrate on the conceptual analysis of the parameters involved in the higher judicial appointments. This issue relating to the higher judicial appointments has gained a lot of importance in India lately and it is required that the lawyers and the common citizenry stay informed with the intricacies of the issue, and the values involved at its heart, particularly in view of protection of the Constitutional virtues of Judicial Independence and Judicial Accountability. This article is the first article of this series and deals with the concept of judicial independence.