POLITICAL SCIENCE

PROJECT

SHUBHRA BAGHEL
ID- 216046
SECTION- ‘A’
 ACKNOWLEDGEMENT

Every project big or small is successful largely due to the effort of a number of wonderful people
who have always given their valuable advice or lent a helping hand. I sincerely appreciate the
inspiration; support and guidance of all those people who have been instrumental in making this
project a success.

I, SHUBHRA BAGHEL, the student of The West Bengal National University Of Juridical
Sciences, am extremely grateful to my Project Guide Ms. ANUPAMA GHOSHAL, who assisted
me in compiling my Project entitled “JUDICIAL ACTIVISM IN INDIA” by giving critical
advice and guidance.

Last but not the least I place a deep sense of gratitude to my family members and my friends who
have been constant source of inspiration during the preparation of this project work.

SHUBHRA BAGHEL

(ID – 216046)

Date- 03-10-2016
 JUDICIAL ACTIVISM IN INDIA

AN INTRODUCTION
Judicial Activism, in its layman's term, mirrors the dynamic role played by the Judiciary in advancing
justice and equity. It is fundamentally a sort of Judicial decisions focused upon individual or political
interests .

Black's Law Dictionary1 has defined 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.”

Merriam Webster’s dictionary of Law2 explained Judicial Activism as “The practice in the Judiciary of
protecting or expanding individual rights through decisions that deport from established precedent or
are independent of or in opposition to supposed constitutional or legislative intent”.

It is not all together a different idea or thought from the typical Judicial activities or exercises. "Activism"
alludes to 'being active’, or at the end of the day, 'doing things with decisions'. Justice Krishna Iyer
commented that “every judge is an activist either on the forward gear or on the reverse”3

Judicial activism, to some implies positive and decisive part by the Judiciary in implementing the
Constitutional Rights, all the more especially the Fundamental Rights ensured to the residents; to others
it implies restraining and, if need be, dressing down the Executive and the Parliament; to some others it
connotes execution by Judiciary of a few capacities which don't entirely fall in the area and locale of the
Judiciary and which should have been performed by alternate wings of the State. For some it is an
inventive measure started by the Supreme Court towards accomplishing intrinsically appointed targets
as Public Interest Litigation. To some others still, it might mean doing equity to the mistreated,
discouraged, stifled, poor and defenseless quiet larger part who can't approach the Court.

RESEARCH QUESTIONS :
1. What is the historical background of Judicial Activism in India?

1
Black’s Law Dictionary 126 (9th ed. 2009).
2
Merriam Webster’s Dictionary of Law.(New ed.)
3
Judicial Activism in India: Origins, Meaning, Causes and Course,YourArticleLibrarycom The Next Generation
Library (2014), http://www.yourarticlelibrary.com/essay/judicial-activism-in-india-origins-meaning-causes-and-
course/24914/
2. What are the various functions and criticisms of Judicial Activism in India?

3. What is the legal framework of the judicial activism in India?

4. How the concept of Public Interest Litigation rooted in Indian Judiciary?

ORIGIN OF JUDICIAL ACTIVISM IN INDIA

Supreme Court in the A. K. Gopalan v. State of Madras4 examined the question of Judicial
Activism for the first time in India.The Court in this case interpreted key fundamental rights
enlisted in the constitution including article 19 and 21. A writ of Habeas Corpus was filed under
the contention that his detention under The Preventive Detention Act, 1950 is violative of his
fundamental rights. But the judges limited the scope of fundamental rights by interpretting them
in isolation of article 21 and 22 which provided guidelines for preventive detention and said that
A “LAW” affecting life and freedom could not be said to be unconstitutional just because it lacks
natural justice or due process. Thus, article 20 and 21 provided no exemption against a
legislative action.

After the landmark case of the Menka Gandhi5, courts have expected a activist stance and
approach to the salvage of oppressed and aggrieved citizens. . In that case, it was held by the
judges that legislative restrictions on 'individual freedom' ought to be all things considered tried
against the sureties of decency, non-intervention and sensibility that were recommended under
Articles 14, 19 and 21 of the Constitution. The Court built up a hypothesis of 'between
relationship of rights' to hold that administrative activity which abridged both of these rights
ought to meet the assigned limit for limitations on every one of them 6. In this way, the Courts
fused the surety of "Substantive Due Process" of U,S.A into the dialect of Article 21 7. This was
trailed by a progression of choices, where the originations of "life" and 'individual freedom' were
translated generously to incorporate rights which had not been explicitly counted in Part III. In
the expressions of Justice Bhagwati:

"We surmise that the privilege to life incorporates the privilege to live with human
poise and all that accompanies it, in particular the minimum essentials of life, for
example, satisfactory nourishment, attire and safe house over the head and offices

4
A. K. Gopalan v. State of Madras, AIR 1950 SC 27
5
Maneka Gandhi v. Union Of India, AIR 1978 SC 597
6
S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001)
7
Sweta rathJudicial Activism Under Article 21: Going Beyond The Four Walls Of The Judiciary, available at
http://www.lawctopus.com/academike/judicial-activism-under-article-21-going-beyond-the-four-walls-of-the-
judiciary/
 for perusing, composing and conveying everything that needs to be conveyed in
assorted structures."

In various cases, subsequent to the Maneka Gandh’s case, the judiciary deciphered the
established constitutional provisions in its more extensive conceivable meaning to ensure
essential common freedoms and the fundamental rights of all. During this period, judiciary of
India built up the idea of Public Interest Litigtaion and Social Interest Litigation by disposing of
the customary and self imposed restrictions on its jurisdiction.

Two dissenting judges in Sajjan Singh v. State of Rajasthan case raised questions whether the
basic privileges of natives could turn into a toy of the greater part party in Parliament.

The judges had the feeling that the law went by the Legislature can be announced void in the
event that it disregards the Fundamental Rights.

In his minority judgment in Minerva Mills v. Union of India, Bhagwati, J., watched:

"It is the legal to maintain the constitution values and to implement the
established constraints. That is the pith of the tenet of the law, which bury alia
requires that 'the activity of the forces by the Government it be the lawmaking
body or the official or whatever other power, be molded by the constitution and
the law.' The force of the Judicial Review is a fundamental part of the constitution
framework… . the force of legal survey… . Part of the fundamental structure of
the Constitution."

In Kesavananda Bharati v. Condition of Kerala8 Justice Khanna said that Judicial Review has
turned into a necessary piece of our Constitutional framework and if the arrangements of the
Statutes are to be discovered violative of any of the Articles of the Constitution which is the
touchstone for the legitimacy of the considerable number of laws, the Supreme Court and the
High Courts are enabled to strike down the said arrangements of the Statutes.

CONSTTUTIONAL POSITION
The Constitution of India expressly builds up the precept of Judicial review in a few Articles, for
example, 13, 32, 131-136, 143, 226 and 2469. The regulation of Judicial review is accordingly
immovably established in India, and has the unequivocal approval of the Constitution.

8
Kesavananda Bharati v. Condition of Kerala, AIR 1973 SC 1461
9
Constitution of India.
The principle object of Article 13 is to secure the Fundamental Rights. Article 32 and 226
endows the parts of the defender and underwriter of essential rights to the Supreme and High
Courts. Article 245 states that the forces of both Parliament and State governing bodies are liable
to the arrangements of the constitution. Article 246 (3) guarantees the state council's select
powers on matters relating to the State list. Article 131-136 depends the court with the ability to
arbitrate debate between people, amongst people and the state between the states and the union
yet the court might be required to decipher the arrangements of the constitution and the
elucidation given by the Supreme Court turns into the law respected by all courts of the area.

JUDICIAL ACTIVISM V/ JUDICIAl

RESTRAINT
Judicial activism ("free constructionist") and "judicial restraint ("strict constructionist") are the
methods for deciphering the Constitution. A judge who is a strict constructionist may control in
cases in a way that peruses the Constitution truly or depends on the first goal of the designers. A
judge that is a legal extremist may lead in an exceptionally wide way that takes into account how
circumstances are different since 1787.

Judicial activism and Judicial restraint are two inverse methodologies. Judicial restraint, which
are exceptionally pertinent in the United States, are connected to the legal arrangement of a
nation, and they are a check against the deceitful utilization of forces of the administration or any
sacred body.

1. Judicial activism is the understanding of the constitution to advocate contemporary values and
conditions. Then again, legal limitation is constraining the forces of the judges to strike down a
law.

2. In the Judicial restraint, the court ought to transfer all demonstrations of the congress and the
state assemblies unless they are damaging the constitution of the nation. In legal limitation, the
courts by and large concede to understandings of the constitution by the congress or some other
sacred body.

3. In the matter of judicial restraint and Judicial activism, the judges are required to utilize their
energy to remedy any bad form particularly when the other established bodies are not acting.
This implies Judicial activism has a incredible part in figuring social approaches on issues like
assurance of privileges of an individual, social equality, open ethical quality, and political
injustice.
The Supreme Court has in light of the judicial invasion into unchartered territory,developed and
recommended the convention of Judicial Restraint as a measuring stick for the judiciary to keep
an eye on itself. As indicated by the apex court, with a perspective to see that judicial activism
does not get to be "judicial adventurism"; the courts must act with alert and with some
appropriate restraint. Judicial restraint is predictable with and also correlative to the parity of
power and force among the three branches of the State. It achieves this in two ways. To begin
with, judicial restraint not just perceives the equality and fairness of the other two branches with
the Judiciary, it additionally cultivates that balance by minimizing the interference between the
branches by the Judiciary.

Judges ought to dependably attempt to choose cases on the premise of:

1. The first expectation of the individuals who composed the constitution.

2. Point of reference – past choices in prior cases.

3. The court ought to leave approach making to others.

They "control" themselves from setting new arrangements with their choices. They settle on
choices entirely in light of what the Constitution says.

PUBLIC INTEREST LITIGATION IN INDIA

In Indian law, open interest case implies case for the assurance of the general population interest.
It is prosecution presented in an official courtroom, not by the oppressed party but rather by the
court itself or by some other private gathering10. It is a bit much, for the activity of the court's
locale, that the individual who is the casualty of the infringement of his or her privilege ought to
by and by methodology the court. Open interest prosecution is the force given to general society
by courts through judicial activism. In any case, the individual documenting the request must
demonstrate as per the general inclination of the court that the appeal is being petitioned for an
open intrigue and not pretty much as a pointless case by a meddler.

Such cases may happen when the casualty does not have the essential assets to start prosecution
or his flexibility to move court has been stifled or infringed upon. The court can itself take
comprehension of the matter and continue suo motu or cases can start on the request of any open
energetic individual.

Origin and Development :

10
Vineet Kothari and Shreshtha Gupta, What Is Pil?, available at
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-
b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
 In India, the concept of public interest litigation initially came up in 1976 by Krishna Iyer J., in
Mumbai Kamagar Sabha vs. Abdul Thai11 and then it was initiated in Raihvaiy v. Union of India,
where there was an unregistered association of workers which was permitted to introduce a writ
petition under Article 32 of the Indian Constitution for the reprisal of common grievances.
Justice Krishna lyer gave the reasons for liberalizing the rule of Locus Standi in Fertilizer
Corporation Kamgar vs. Union of India12 and after that the principle of ‘Public Interest
Litigation’ was blossomed in S.F. Gupta vs. Union of India,13

Public Interest Litigation and Judicial Activism:

Public interest litigation, also called ‘social interest litigation’ has great importance today and it
drew the interest of all concerned. The customary rule of “Locus Standi” that people, whose
rights are infringed alone can file a writ petition, has been significantly relaxed in its recent
decisions of the Supreme Court. Now, any public determined citizen can approach the court for
the public cause (in the benefit of the public or public welfare) by filing a writ petition in:

1. Supreme Court - Article 32

2. High Court - Article 226

3. The Court of Magistrate - Sec.133, Cr. P.C.

SEPERATION OF POWERS

“Have we not lived enough to know that two men may honestly differ about a question, but both
be right? In this paradox lies the secret of judicial process. There are areas where the judges
must be activists and there are areas where they must be passivists. In which areas they should
be activist, and in which areas they should be passivist, can be gathered from the knowledge
we get by experience.” - Abraham Lincoln

The separation of powers is on the guidelines of “trias politica”. The Doctrine of Separation of
Power is the precursor to every one of the constitutions of the world, which appeared since the
times of the "Magna Carta". Despite the fact that Montesquieu was under the mistaken
impression that the establishments of the British constitution lay in the rule of Separation of
Power, it discovered its beginning in the American Constitution. Montesquieu had an inclination
that it would be a panacea to great administration yet it had its own downsides. A complete

11
Mumbai Kamagar Sabha vs. Abdul Thai AIR 1976 SC 1455
12
Fertilizer Corporation Kamgar vs. Union of India AIR 1981 SC 149
13
S.F. Gupta and others vs. Union of India, AIR 1982 SC 149
Separation of force without satisfactory balanced governance would have invalidated any
constitution. It was just in light of this the establishing fathers of different constitutions have
acknowledged this hypothesis with adjustments to make it important to the changing times.

In Indian Constitution there is express arrangement that "Official force of the Union should be
vested in the President and the official force of the State might be vested in Governor.." (Article
154(1) of Indian Constitution). In any case, there is no express arrangement that administrative
and legal forces might be vested in any individual or organ.14

President being the official head is likewise enabled to practice authoritative forces. In his
authoritative limit he may declare Ordinances keeping in mind the end goal to meet the
circumstance as Article 123(1) says "If whenever, with the exception of when both Houses of
Parliament are in Session, President is fulfilled that conditions exist which render it fundamental
for him to make quick move, he may proclaim such Ordinance as the conditions appear to him to
require".

ISSUES AND CONCERNS

Justice Jackson, U.S. has appropriately said: “The doctrine of judicial activism which justifies
easy and constant readiness to set aside decisions of other branches of Government is wholly
incompatible with a faith in democracy and in so far it encourages a belief that judges should be
left to correct the result of public indifference it is a vicious teaching.”15

The accompanying are the primary issues or territories of worry with an activist Judiciary-

(1) There the judiciary meddles with the capacities plainly of regulatory or administrative
nature, in such cases, is the judiciary responsible to anybody for the discharge of such
capacities and what are established and legal sanctions behind such requests made and
headings given by courts, by method for judicial activism.

(2) Weakening of the hypothesis of Separation of Powers is in advertent when there is a

dissident judiciary. The critics trust that it goes against the Indian Constitution.

14
Aishwarya Talwar, Separation of Powers and Judicial Activism in India,
http://www.lawctopus.com/academike/separation-of-powers-and-judicial-activism-in-india/

15
T. R. Andhyarujina; “Disturbing trends in Judicial Activism”;August 6 2012; The Hindu
 (3) Judicial Activism could be utilized by the present day political establishments to get their
interests secured and in this way there may be abuse of the judicial Process.

CRITICISM
The Opposition to Judicial Activism also comes from the difficulties created in implementation
of the directives given by the court, in the form of some affirmative action. This So-called
affirmative activism may require the court to supervise the continuous action which affects large
number of individuals. Consequently, it often produces extensive administrative responsibilities
for the court. In the process, the court formulate controversial programs of affirmative action
requiring detailed administration for protracted periods of time under constant judicial
supervision. In India, the continuing monitoring of “Jain-Hawala-Dairies Scam”, investigation
by the supreme Court in Vineet Narain Vs. UOI , by forming a new writ called “Continuing
Mandamus” and the series of positive directions pertaining to shifting of polluting industries
causing damages to Taj Mahal and their closure and banning of the plying of 15 years old and
more than 15 years of old commercial vehicles in the National Capital Region of Delhi
demonstrate this kind of Judicial Administration which is continuous. This judicial attitude raises
both pragmatic and jurisprudential questions about the limits of the Judicial Power.

CONCLUSION
“The judge infuses life and blood into the dry skeleton provided by the legislature and creates a
living organism appropriate and adequate to meet the needs of the society”16

The activity of the force of judicial activism has on occasion produced debates and controversies
between the courts, the official and the lawmaking body. For instance the affirmations in the aria
of the property relations, administrative benefits, and protected revisions have been dubious and
have even prompted a few established changes which were attempted to fix or weaken judicial
decisions which the central Government disliked. For instance the decision given in Shah Bano
case17 the Supreme Court of India held that Muslim ladies can assert for maintenance after

16
S. P. Gupta v. Union Of India, AIR 1982 SC149
17
Mohd. Ahmad Khan. V. Shah Bano Begum, 1985 SCR (3) 844
separation yet the Government passed Muslim Women's Act18 to overrule the decision given in
Mohd. Ahmad Khan. V. Shah Bano Begum19.

The Judiciary can't assume control over the Executive. The Courts themselves must show
judiciousness and control and be aware of the requirement for comity of instrumentalities as
essential to great administration. An extremist Court is unquestionably much more compelling
than a lawful positivist conservative Court to protect the public against authoritative adventurism
and official oppression.

Judicial activism is a sine qua non of majority rules system in light of the fact that without a
ready and illuminated judiciary, the vote based system will be diminished to a void shell. Judicial
activism in its totality can't be banned. Clearly under a constitution, a principal highlight of
which is the standard of law, there can't be any limitation upon legal activism in matters in which
the lawfulness of executive orders and authoritative activities is questioned.

Judicial activism is not a deviation. It is a crucial part of the flow of an established court20.
However, Judicial activism, in any case, does not mean administration by the judiciary. It should
work within the limits of the judicial procedure.

Take away Judicial activism and domination will venture to fill the empty space. It will be
exceptionally appropriate to cite the expressions of Dr. A.S. Anand, former Chief Justice of
India who said :

"… . the Supreme Court is the caretaker of the Indian Constitution and it exercises judicial
control over the activities of both the legislature and the executive.”

I might want to finish up by expressing that the Courts are not over the Constitution and must be
aware of the still, small voice of the Preamble. At the same time, the judiciary needs to take care
of the welfare of all the citizens equally. The function of the judicial activism is judicial policy
making which brings about some social change or articulates concepts such as liberty, equality
and justice.

18
Muslim Women’s (Protection of Rights on Divorce) Act, 1986
19
Mohd. Ahmad Khan. V. Shah Bano Begum, 1985 AIR 945
20
S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001)
 BIBLIOGRAPHY

PRIMARY SOURCES:
1) BRICE DICKSON, JUDICIAL ACTIVISM IN COMMON LAW SUPREME COURTS (2007).

2) S. P. Sathe, Judicial Activism in India, Oxford University Press (2nd ed. 2002)

SECONDARY SOURCES
1) Satyabrata Sinha, “Judicial Activism: Its Evolution and Growth”

2) DR. K. N. Katju, “Separation of powers and judicial activism in India”

ELECTRONIC AND WEB SOURCES

1) “Judicial Activism under Indian Constitution” by K. G. Balakrishnan, former CJI,
http://www.supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_d
ublin_14-10-09

2) Judicial Activism in India, https://www.scribd.com/document/318617226/Judicial-

Activism-in-India

3) Vineet Kothari and Shreshtha Gupta, What Is Pil?,

http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-
aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence

4) Sweta rathJudicial Activism Under Article 21: Going Beyond The Four Walls Of The
Judiciary, available at http://www.lawctopus.com/academike/judicial-activism-under-
article-21-going-beyond-the-four-walls-of-the-judiciary/