Submitted By: Shraddha Srivastava *
The purpose of this paper is to provide a detailed overview of judicial activism and its development since the past. Judicial Activism is the innovative approach adopted by Courts to regulate the wings of governance and more specifically to reach out to the oppressed section of the society. The role of democracy cannot be restrained to watertight compartments of replacing governments and as such to broaden the influence of interpretation on every aspect of governance, judicial activism came forward as a big necessity. The paper also illustrates a comprehensive pathway of judicial activism and its growth case by case.
The paper states various significant recent landmark cases in which judicial activism played a vital role. There has been a constant instability in social, as well as, the economic area of society due to the ineffectiveness of administrative authorities. To confront this, an evaluation upon the rise of judicial activism has been made with a focus upon flaws that are responsible for corruption, poverty and infringement of human rights. The paper concludes with unveiling the contribution made by judicial activism in the past, its significance in the present and the necessity of further activism in future.
Keywords: Judicial Activism, Keshavananda Bharati, judiciary, Supreme Court of India, Constitution.
*Second Year Student, B.A. LL.B (Hons.), Babu Banarasi Das University, Lucknow.
The Constitution of India comprises of salient features, most remarkable of which are the Fundamental Rights. These rights are defined in Part III of the Constitution and are conferred as prohibitions against the State. For their enforcement and proper safeguard, an independent and impartial judiciary with the power of judicial review has been established under the Constitution of India. The independence of judiciary calls for the separation of powers viz., the legislature and executive cannot interfere with the functions and decisions of the judiciary but there are cases where the judiciary has to fill the vacuum created by the failure, inactiveness and negligence of the other two wings. Thus, the judiciary and especially the Supreme Court of India (SC) have been assigned to play a pro-active role under the constitutional framework. The approach of the judiciary has turned from a positivistic view to an activist view by the end of 1970s. Basically, judicial activism is not a separate concept from judicial activities; it is a dynamic process of judicial outlook in a changing society. In general, judicial activism refers to the use of judicial powers to enforce and articulate what is beneficial for the society and render the decisions which are based on personal or political considerations rather than on existing law. In short, it can be seen as the dynamism of judges or as judicial creativity to fill the gap between the positive and normative aspects of law through the judiciary.
II) DEFINING JUDICIAL ACTIVISM
The term “judicial activism” was introduced by Arthur Schlesinger Jr. in January 1947 through the Fortune magazine article titled ‘The Supreme Court: 1947’. The word ‘activism’ means ‘being active’ or ‘doing a thing with decisions’ and the expression ‘activist’ means one who favours ‘intensified activities’ and thus it concludes that every judge is an activist.
The meaning and scope of judicial activism are not confined to a single definition. Different people defined it differently, for some, it signifies the performance of such acts which are beyond the domain of the judiciary or which ought to have been performed by other wings of the State i.e., it can be seen as a political role played by the judiciary. For some, it means regulating and if needed dressing down the Executive and the Parliament. Some others regard it as an innovative measure initiated by the highest court towards attaining the objectives ordained by the constitution in the form of Public Interest Litigation (PIL). To some others, it is regarded as the role of shaping social policy and doing justice to the oppressed and helpless sections who cannot approach the court.
Judicial activism is that way of exercising judicial power which seeks fundamental recodification of power relations among the dominant institutions of the State, manned by members of the ruling classes.
Justice P.N. Bhagwati (the pioneer of judicial activism), observed that “ Judicial activism is now a central feature of every political system that vests adjudicatory power in a free and independent judiciary.
III) PATHWAY OF JUDICIAL ACTIVISM
The emergence of judicial activism can be traced back to 1893; when Justice Mahmood of the Allahabad High Court (HC) delivered a dissenting judgment. The question in issue was whether the under-trials could be adjudged only on the basis of their papers as they were not in a position to afford an attorney.  The court held that the pre-condition of the case being ‘heard’ (as opposed to merely being read) would be fulfilled only when somebody becomes a speaker.
A major instance of judicial activism can be seen in the famous Keshavananda Bharati case (which ruled over the Golaknath case) in which it was decided by S.C that though the Parliament has vast powers of amending the Constitution under Article 368 of the Constitution, it cannot take away or abridge the Basic Features of the Constitution.
In A.K. Gopalan v. State of Madras, the Supreme Court asserted that its power of judicial review was inherent in the very nature of the Indian Constitution. Chief Justice Kania, observed:
“In India, it is the Constitution that is supreme and that a statute law to be valid, must be in all conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not”.
In Maneka Gandhi’s case, the Supreme Court overruled the A.K. Gopalan case and gave a liberal interpretation to the expression ‘liberty’ and ‘procedure established by law’ under Article 21 of the Constitution which provided that nobody could be deprived of his life or personal liberty except according to the procedure established by law. It was observed by Justice Bhagwati that the term ‘liberty’ used in the article is of the widest amplitude and the term ‘procedure established by law’ will be interpreted as reasonable, just and fair and not enacted piece of law.
Another instance of activism can be seen when the Supreme Court interpreted the word life in Article 21 to mean not mere survival but a life of dignity as a human being.
P.I.L. (Public Interest Litigation) can also be seen as a symbol of judicial activism. The shift from locus standi to public interest litigation made the judicial process “more participatory and democratic.” It was due to P.I.L. the Court heard the grievances of prisoners, bonded labourers, pavement dwellers, Bhagalpur (Bihar) blinded prisoners, etc. Thus, this type of action gained momentum as it displays the potentiality of the legal system and has also brought a spirit of general awakening among the depressed section of the society.
IV) RECENT EXAMPLES OF JUDICIAL ACTIVISM
The recent case of judicial activism was of Aruna Ramchandra Shanbaug vs. Union of India, in which the nurse Aruna was sexually assaulted and was in a permanent vegetative state since the assault (1973). In 2011, the SC heard the petition to the plea for ‘euthanasia’ filed by a social activist claiming to be the next friend of the victim. The court in its landmark judgment allowed ‘passive euthanasia’, i.e. withdrawal of life support to a person in a permanently vegetative state.
In the 2G Spectrum scam, SC had assumed a supervisory role in CBI investigation and had taken an unprecedented step in 2012 and cancelled 122 licenses distributed by the government in 2008 to different telecom companies, stating that it was their duty to strike down policies that were contrary to the public interest. Thus, it has become clear that through P.I.L. a check over the menace of corruption in Indian Administration can be brought.
In the Noida land acquisition case, the acquisition of land by U.P government was cancelled by the SC as it was acquired for industrial purposes but it was given to builders for making apartments. The court ordered that the land should be reverted back to the farmers from whom it had been acquired.
V) REASONS FOR THE RISE OF JUDICIAL ACTIVISM
The constitutional provisions have given enough scope to the judiciary for judicial activism and more specifically to the Supreme Court for playing an active role by asserting itself. Provisions such as Article 13 empower the court to declare any law unconstitutional if it violates fundamental rights. A citizen can move directly to the SC under Article 32 and to the High Courts under Article 226 if there is any violation of fundamental rights (role of the judiciary as a guardian of fundamental rights). Article 131 upholds the federal principal. SC enjoys advisory jurisdiction under Article 136 and also has rule making powers under Article 142 and Article 145 of the Indian Constitution. Under Article 141, the SC has the authority to make the final declaration on the validity of the law and all its judgment are binding on all courts in India except itself. The emergence of judicial activism can also be attributed to the following factors -
a) Near Collapse of Capable Government
When the Executive and Legislature fail to perform their respective functions then it is called as near-collapse of responsible government and in such an exceptional case the judiciary may legitimately enter into the areas earmarked for the other wings and this thus results in judicial legislation and governance by the judiciary.
b) Pressure on Judiciary to Step in Aid
The judiciary has to step in aid not only for the protection of fundamental rights but also for curbing the violence, injustice, oppression and any other crime which influence upon the rights and freedom of the citizens. This mounting pressure for doing something for the suffering masses makes judiciary play an active part.
c) Vacuum Created by Legislative Inactivity
Despite the presence of various pre and post-constitutional laws, there might be certain areas which haven’t been legislated upon yet. In this context, judicial legislation has to be understood as an incident to statutory interpretation and thus activism came into effect.
d) Judicial Zeal to Participate in Social Reform
With changing society, the law also changes which makes the judges to actively participate in social reformative changes. The role of P.I.L. falls under this category of change. Along with this, the public confidence and trust reposed in the courts become an encouraging factor for the advancement of judicial activism in India.
“Changing times make it appropriate for laws and courts to adapt themselves to new situations…courts are not the only guardians of the Constitution but are the last resort”, judicial activism emerged as a boon to the weaker sections of the society and more importantly, it eventually makes the judiciary powerful through its successful rising but the downside of it is that it violates the theory of separation of power and it is often claimed that in the name of activism, judiciary rewrites its personal or arbitrary opinions. However, its contribution towards the socio-economic revolution, which enhanced faith, confidence and hope for justice in people towards courts cannot be ignored. A court deviated towards activism will prove to be a true resemblance of justice particularly for the poor and the disadvantaged sector of the society. In the face of PIL, it emerges as a strong mechanism to bring changes at the social level. It has the vigour of developing the declining humanistic notion at a mass level. Judicial activism has now become an integral part of the justice system but its interference in other wings of governance should be regulated.
 Upendra Baxi, Courage Craft and Contention – The Indian Supreme Court in the Eighties (Bombay, 1985), p.10.
 Lakshminath, A., “Judicial Activism: Retrospect and Prospect”, Banerjea D. (ed) Judicial Activism Dimensions and Direction, Vikas Publishing House Delhi, 2002.p. 59
 The question in issue was whether the under-trials could be adjudged only on the basis of their papers as they were not in a position to the afford an attorney.
 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
 1967 AIR 1634, 1967 SCR(2) 762.
 AIR 1950 SC 27.
 Maneka Gandhi v. Union of India AIR 1978 SC 597.
 Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.
 S.P. Sathe, Judicial Activism in India (Sixth Indian Impression, OUP, 2010).
 AIR 2011 SC 1290.
Performance Audit Report on the Issue of Licences and Allocation of 2G Spectrum, Department of Telecommunications,http://cag.gov.in/sites/default/files/audit_report_files/Union_Performance_Civil_Allocation_2G_Spectrum_19_2010.pdf.
 Greater Noida Industrial Development Authority v. Smt. Rajbala and three others on 3 August,2017.
 Ward Berenschot , Rioting as Maintaining Relations: Hindu-Muslim Violence and Political Mediation in Gujarat, India, (June 11, 2014). See also Jutta Bakonyi and Berit Bliesemann de Guevara (eds), A Micro-Sociology of Violence: Deciphering patterns and Dynamics of Collective Violence, Routledge, pp. 18–37, ISBN 978-1-317-97796-4.
 CWG: Court Frames Charges Against Kalmadi, 9 Others". Outlook India. (4 February 2013 10:25 AM) https://www.outlookindia.com/newswire/story/cwg-court-frames-charges-against-kalmadi-9-others/788818.
 Draft Performance Audit, Allocation of Coal Blocks and Augmentation of Coal Production by Coal India Limited, Report of the Comptroller and Auditor General of India.
 Vinay Kumar, Chopper scam: Long-drawn legal battle ahead, The Hindu,( February 18, 2013).
 M.R. Biju, Developmental Issues in Contemporary India, p. 313, (2010)