“Arise, Awake, and Stop Not Till the Goal is Reached,” by Swami Vivekananda, urges not only individuals but also institutions like Judiciary to step forward to safeguard Justice.

Justice D.Y. Chandrachud once remarked that, ‘Judiciary is the first and last access for citizens in distress and need.‘ Bharat, has separation of powers i.e. three organs- Legislative, Executive and Judiciary perform different functions and duties as per the Constitution of India, 1950. However, there may arise situations when Fundamental Rights are violated and social justice is at stake, due to arbitrary actions of Legislative or Executive. In such situations, Judiciary “arises” and “awakens” by playing a transformative role, where they go beyond traditional adjudication, and act proactively against such arbitrariness by expanding rights, issuing policy guidelines, or monitoring governance i.e. exercising Judicial Activism.

What is Judicial Activism?

In simple terms, Judicial Activism means, an active role played by the Judiciary to protect Fundamental Rights of individuals against arbitrary actions of Legislative and Executive. Here, Court goes beyond traditional adjudication and actively participates in the policy shaping process to uphold the Constitution, Rule of Law, social justice and ethics.

Is Judicial Activism a Part of the Indian Constitution?

The term ‘Judicial Activism’ is explicitly not mentioned in the Constitution of India. However, through judicial interpretations, it has been developed with time.

If it was originally not a part of the Indian Constitution then, how did it evolve?

1) Pre-Emergency:

• Passive stance of Judiciary post- Independence, e.g., in ‘A. K. Gopalan v. State of Madras (AIR 1950 SC 27)’, where Court followed a literal interpretation of ‘Article 21’, ruling that “procedure established by law” includes any law enacted by the legislature, not requiring them to be fair, just, and reasonable.

• Thereafter, a shift towards a more activist orientation became visible in ‘Golaknath v. State of Punjab (1967 AIR 1643)’, where Court held that, Parliament could not amend Fundamental Rights, thereby prioritising ‘constitutional supremacy over parliamentary sovereignty’.

• Later, in ‘Keshavananda Bharati v. State of Kerala (AIR 1973 SC 1461)’, where Court emerged as the ultimate guardian of the Constitution to develop the ‘Basic Structure Doctrine’.

2) Post-Emegency:

• Two years later in 1975, national emergency was declared which saw rampant use of power and State arbitrariness. This was a major trigger after which Judiciary completely evolved itself towards Judicial Activism. For e.g., in ‘Maneka Gandhi v. UOI case’ Court overruled precedent set by A. K. Gopalan case and introduced the concept of ‘due process of law in India by upholding that “procedure established by law must be fair, just, and reasonable,” and not arbitrary.

That is how Judiciary evolved itself from Judicial Self restraint to Judicial Activism.

Tools of Judicial Activism:

  1. Public Interest Litigation (PIL): PIL is a legal mechanism by which individuals can seek judicial intervention to address matters of public interest. Any person either the aggrieved or third party can file a writ petition under Article 32 to Supreme Court (SC) (for enforcement of Fundamental Rights) and Article 226 to High Court (HC) (for enforcement of Fundamental Rights and Legal Rights). The first reported case of PIL was ‘Hussainara Khatoon v. State of Bihar (1979 AIR 1369)’ from where a new era of the PIL movement began. Petitions filed by M. C. Mehta are landmark cases herein.

  2. Expansive Judicial Review: There’s a slight difference between judicial review and judicial activism. Judicial review is where courts only declare the actions of legislative or executive as unconstitutional. But through judicial activism they go one step ahead to play a pro-active role by themselves being the policy & law makers. Judiciary has dynamically adopted judicial activism during its exercise of Judicial Review (under ‘Article 13’) to advance constitutional governance. For instance, in abovementioned ‘Maneka Gandhi case, a writ petition was filed under Article 32. Court using its judicial power to review, inspected the actions of passport authorities and declared them as unconstitutional, but it went a step ahead to expand Article 21 to include ‘Right to travel abroad’ and established the ‘Golden triangle principle’.

  3. International Conventions: In absence of domestic laws over a particular issue, international conventions although not binding, are often relied upon by the Judiciary for Constitutional interpretations (provided they are aligning with the Fundamental Rights). For e.g., in the ‘Vishaka Case (1997)’, India had no laws of its own against sexual harassment of women at workplace. But being a ratified member of an international treaty called CEDAW (Convention on Elimination of All Forms of Discrimination against Women), it used the principles of this treaty & established binding ‘Vishaka guidelines’ through Judicial Activism.

  4. Continuous Mandamus: Firstly, what is mandamus? Mandamus or ‘We command‘ refers to higher courts commanding lower courts, or public authorities to perform their public duties. In case of continuous mandamus, Court becomes a long-term watchdog. They keep a case pending voluntarily to exercise continuous judicial oversight until that issue is completely resolved. The Court here, orders a series of interim directions to monitor compliance when the executive fails to perform its said duties. In prominent cases like ‘Taj Trapezium case’ and ‘Ganga Pollution case’, Court monitored environmental pollution for years by directing the Central and State Pollution Control Boards to conduct inspections and submit compliance reports.

  5. Article 142: Empowers the SC to pass any order to ensure complete justice. Using this provision, Court exercised Judicial Activism in ‘Bhopal gas tragedy case (1984)’.

  6. Article 136: Allows Special Leave Petition against any order passed by any other court or tribunal in India, except armed forces laws. SC can intervene in cases of “substantial questions of law” or “grave injustice,” and exercise judicial activism.

  7. Article 21: It has been widely interpreted using Judicial Activism from time to time to include Right to Digital Access, Right to Clean Environment, Right to be Forgotten, etc. In ‘Justice K. S. Puttaswamy v. Union of India (AIR 2017 SC 4161)’ case, SC not only expanded Article 21 to include ‘Right to Privacy’ but also highlighted the ‘Right to be Forgotten’. Recently, the Court recognised menstrual health and hygiene as an integral part of the Right to Life under Article 21 in ‘Dr. Jaya Thakur v. Government of India & Ors.‘

Landmark Judgements:

1} Keshavananda Bharati v. State of Kerala (AIR 1973 SC 1461):  Swami Kesavananda Bharati was the head of Edneer Mutt, in Keralam. Keralam state government passed Kerala Land Reforms Act, 1963 that allowed them to take over the land of the Mutt. Later, the 24th, 25th and 29th Constitutional Amendments (1971–1972) were passed to protect land reform laws from judicial review and place certain statutes in the Ninth Schedule. Swami argued that this violated his Fundamental Rights, specifically the Right to property and Right to manage Religious Affairs. Hence, a writ petition was filed under Article 32. And, with the largest bench of thirteen judges, the concept of ‘Basic Structure Doctrine’ came into existence, by which Parliament was debarred from making amendments violating the Fundamental principles of the Constitution. Here, although Kesavananda Bharati lost his case, but the Indian Constitution won.

2} Vishaka and Ors. v. State of Rajasthan and Ors. (AIR 1997 SC 3011): “यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवताः।यत्रैतास्तु न पूज्यन्ते सर्वास्तत्राफलाः क्रियाः॥” Bhanwari Devi from Bhateri, Rajasthan was a social activist working under an initiative named Women’s Development Project (WDP) under the State of Rajasthan. Once she had been to a village to stop child marriage of less than a year old daughter of Ram Karan Gujjar. As a result of her actions, on 22nd September, 1992, she was brutally gang raped, in front of her husband, by five men. She did not receive any support from doctors, police and Trial Court. Later, a PIL was filed by an NGO named Vishaka under Article 32. Supreme Court held that sexual harassment of women at workplace infringes Fundamental Rights guaranteed under ‘Articles 14, 15, 19(1)(g), and 21’. Considering the lack of domestic laws governing protection against sexual harassment at work, Court used its power of Judicial Activism to issue certain guidelines known as ‘Vishaka guidelines’ until any legislation was passed, referring to the provisions of CEDAW. Court also . It laid down the definition of sexual harassment and necessary procedures for employers to follow in both the public and private sectors. Said guidelines became the foundation for Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

3} Hussainara Khatoon v. State of Bihar (1979 AIR 1369): In 1979, writ of ‘Habeas Corpus’ was filed by Adv. Pushpa Kapila Hingorani against denied bail, prolonged detention and inhumane treatment of undertrial prisoners (UTPs) in Bihar. Bench comprising Justice P. N. Bhagwati and Justice Desai, clarified that there was a violation of ‘Article 21’, which includes ‘Right to Speedy Trial’ as well. It further stated that, ‘Article 39A’ is inseparable of ‘reasonable, fair and just’ procedure by upholding ‘Justice Delayed is Justice Denied’. It directed the High Court and the State to enlist UTPs whose detention period had expired and release those who have served more time than their maximum potential sentence. Moreover, the Court here moved beyond traditional locus standi (only the aggrieved can approach the Court) to allow PILs, acting upon news reports, letters, etc.

4} Khatri v. State of Bihar [1981 SCC (1) 627]: It is also known as the ‘Bhagalpur Blinding Case’ whereby a writ petition was filed of Habeas Corpus against custodial torture which violated ‘Article 21’, ‘Article 22’ and ‘Article 39A’ of the UTPs. Here, police poured acid into the eyes of a number of UTPs due to which they were blinded. Furthermore, UTPs were not legally represented during production before the magistrate and were deprived of being informed of their ‘Right to Free Legal Aid’ by the Magistrate. SC held that, ‘Right to Live with Human Dignity’ is inseparable of ‘Article 21’ and even UTPs are entitled to it. It further directed that State of Bihar had a constitutional obligation to ensure humane treatment of prisoners during custody. It also mandated to provide legal aid since the moment of production before a magistrate and ordered for compensation for violation of basic human rights by the State.

Case Studies:

  • Electoral Bonds Case or ‘Association for Democratic Reforms v. UOI (2024 INSC 113)’– On February 15, SC struck down the Electoral Bonds Scheme, 2017, declaring it unconstitutional. A five-judge Constitutional Bench, led by CJI D.Y. Chandrachud, repealed the scheme and related amendments to the ‘Income Tax Act, 1961’, ‘Representation of the People Act, 1951’ and ‘Companies Act, 2013’ for violating ‘Right to Information’ under ‘Article 19(1)(a)’, and enabling companies to influence politics excessively. Court directed State Bank of India to disclose names of all past donors to Election Commission of India and cease further issuance of bonds. The judgement emphasized transparency in political funding for free and fair elections.

  • Sukanya Shantha v. Union of India (2024 INSC 753)– A PIL was filed by journalist Sukanya Shantha which revealed that several state prison manuals promoted caste-based separate barracks and assigning cleaning/scavenging works to marginalized castes. Court held that such colonial era practices violated ‘Right to Equality (Article 14), Right against Discrimination (Article 15), Abolition of Untouchability (Article 17), Right to life and Personal Liberty (Article 21) and Prohibition of Forced Labour (Article 23).’ Court directed the Centre to amend ‘Model Prison Manual, 2016 and Model Prisons Act (2023)’ within three months to prohibit such discrimination. ‘Article 21’was further widened to include ‘Right to Overcome Caste Prejudices‘. It tasked NALSA and DLSAs to conduct regular inspections and submit reports to Court.

Significance:

  • Protects Fundamental Rights: As per the words of Justice M. C. Chagla, “It alone can act like the angel with flaming swords guarding the citadel of Human Rights,” likewise it acts as a guardian of individual liberties when executive or legislature fails. It aids to transform Fundamental Rights from negative rights to living rights using various tools of Judicial Activism.

  • Fills Legislative Vacuum: When there exist no domestic laws on a specific issue, Judiciary comes into the picture to actively interpret the Constitutional provisions and fill such a lacuna. It ensures continuity of governance even in the absence of laws and opens the door to justice for the common public.

  • Strengthens Rule of Law & Constitutional Supremacy: As it is often cited by SC that, “where there is Law/Righteousness, there is Victory,” judicial activism restrains arbitrary State actions, considers Law supreme not only on paper but also in practice and thus, upholds Rule of Law and Constitutional Supremacy.

  • Voice to the Vulnerable: In this Kaliyuga, where on one side someone is extremely rich with all the luxuries in life, on the other side someone is so poor that they are striving for basic food, Justice often seems an unanswered question to such vulnerable groups. However, through PILs, Judiciary becomes accessible to them thus promoting democratization of access to justice. ‘Article 32’ is emphasized as, “It is the very soul of the Constitution and the very heart of it,” by Dr. B. R. Ambedkar

  • Protection of Democracy and Accountability: Democracy involves the participation of citizens and is governed by their elected representatives. Judicial activism becomes important when shadow of arbitrariness takes over the ideals of Constitution, and Democracy is weakened. It helps to maintain accountability of the State to its citizens.

  • Social Transformation and Progressive Jurisprudence: Judicial activism is crucial for promoting social justice. It moves society towards equality, dignity, and liberty. If laws made by the legislature are outdated, judiciary makes the laws progressive and relevant to the current times through such proactive approach. For e.g., ‘Shayara Bano v. Union of India and Ors. (AIR 2017 SC 4609)’ wherein SC declared the practice of instant triple talaq as unconstitutional. 

  • Expansion of Directive Principles into Enforceable Rights: Judiciary through its expansive interpretation has effectively made DPSPs into enforceable Rights by reading them into the Fundamental Rights. For instance, in ‘Unnikrishnan v. State of Andhra Pradesh (1993 AIR 217)’, SC considered ‘Right to Education‘ a Fundamental Right under ‘Article 21’ for children from 6 to 14 years of age, thus bridging the gap between ‘Article 45’ and Fundamental Rights.

Criticisms:

  • Encroachment in Legislative Domain: In ‘Shyam Narayan Chouksey v. Union of India (2016)’, SC mandated that all cinema halls must play the National Anthem before a film starts. Critics called this aggressive nationalism by violating Constitutional principles and argued that, this went beyond the ‘Prevention of Insults to National Honour Act, 1971’, and entered the domain of legislative policy. 

  • Disruption of the Separation of Powers: Excessive judicial activism can undermine the role of elected representatives and democratic processes by shifting policy-making responsibilities from elected representatives to the judiciary. As seen in cases like ‘Narmada Bachao Andolan’, where court intervention encroached upon executive decisions.

  • Lack of Democratic Accountability: Judiciary lacks direct democratic accountability, and when it makes policy decisions such as framing guidelines through PILs, it risks bypassing the legislature and enacting measures that may not reflect the will of the people.

  • Conflict of Interests: When judges go beyond strict interpretation and play an active role in interpreting rules, they may substitute their own values and beliefs for the law, making decisions based on personal interests which can be detrimental to the general public. For e.g., ‘National Judicial Appointments Commission case (2015)’ where the Parliament passed a law to replace the collegium with a commission including executive members. The Apex Court struck down the law as unconstitutional to protect judicial independence. Critics argues that judiciary acted as a “judge in its own cause”.

  • Public Trust: Public faith may be diminished in the capability and efficiency of the elected government and legislature when Court frequently steps into policy-making.

  • Judicial Delays: Such exercise of Judicial Activism may cause judicial delays abiding by the “Tarikh pe Tarikh” phrase causing overburden on the Judiciary.

  • Lack of Expertise: Judges may not possess adequate expertise or knowledge to make informed decisions on complex policy issues. This can prove to be fatal for the society at large.

From Judicial Activism To Judicial Adventurism:

“Judicial activism has provided citizens the ammunition to fight for their rights. But has it also gone overboard to become judicial over-reach?”- Senior Advocate and Former Solicitor General of India, Dipankar Gupta

There is a thin line of difference between Judicial Activism and Judicial Overreach. While judicial activism is considered positive to curb the inadequacies of legislative & executive bodies, Judicial overreach acts negatively signifying an unnecessary intervention into their functioning.

For instance, in ‘Shyam Narayan Chouksey v. Union of India (AIR 2018 SC 357)‘ also known as the ‘National Anthem Case’, SC mandated that, National Anthem must be played before a film begins, and everyone in the audience must stand up to demonstrate their respect and the National Flag should be displayed on the screen. Critics argued that, 

  • Court ignored the precedent set by ‘Bijoe Emanuel and Ors. V. State of Kerala and Ors. (1987 AIR 748)’ in which Court ruled that standing respectfully in silence without singing shall not constitute disrespect;

  • It violates ‘Article 19 (1)(a)’ , by coercing people to demonstrate patriotism;

  • Court’s mandate went beyond ‘Prevention of Insults to National Honour Act, 1971’, which criminalises active disturbances during the anthem, but it does not impose a “positive duty” or a legal requirement for it to be played in private;

  • Judiciary stepped into the shoes of other two bodies.

Way Forward:

  • Exercising Doctrine of Judicial Self-Restraint i.e. intervening in fuctions of other organs only when it deems necessary.

  • Judicial Accountability must be ensured through calculated and reasoned judgements without biasness, ensuring transparency.

  • Institutional dialogue must be promoted over adversarial supremacy.

  • Principle of Separation of Powers must be respected to avoiding judicial overreach.

  • Capacity Building and Research Support: Establishing stronger research wings and amicus mechanisms can ensure that activist judgments are well-informed, empirically grounded, and practically implementable.

Conclusion:

Judicial activism has played a transformative role in shaping Indian constitutionalism by expanding the scope of Fundamental Rights and ensuring social justice. However, such activism is an powerful tool only until it is exercised within constitutional limits. Hence, balance of power must be preserved and rights of individuals must be protected in this vibrant democracy like India.

:- Tanisha Tapan Samanta

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