EVOLUTION OF THE ROLE OF JUDICIARY THROUGH JUDICIAL

ACTIVISM

Abstract
In its essence, India’s judiciary with the Supreme Court sitting at the apex are the
interpreters of the law of the land. To romanticize it further, they are the defenders of Indian
democracy and the holy grail of the land which is the Indian Constitution.

Judicial Activism is a state of mind. It has its genesis in the apathy and ignorance of a
country’s executive and legislature. It helps the judiciary transcend its traditional operation
of settling disputes in accordance to the law of the land. It is a pro-active approach to ensure
the welfare of the State and its citizens whilst being in tune with the constitutional framework
of the country.

Keywords: Judicial Activism, judicial review, public interest litigation, Suo Motu

According to G. Austin, the Supreme Court of India has to safeguard the rights and future of
Indian minorities of socio-economic and religious clothing. It needs to play the role of
“guardian of social revolution.”

In its essence, India’s judiciary with the Supreme Court sitting at the apex are the interpreters
of the law of the land. To romanticize it further, they are the defenders of Indian democracy
and the holy grail of the land which is the Indian Constitution.

An independent judiciary is necessary for the existence of human rights and is a requisite for
federal polity. However, an active and progressive independent judiciary can evolve the
status of human rights and can play an instrumental part in achieving equilibrium in the
society.

Which brings us to the question of what is judicial activism?

While acquainting ourselves with the concept of judicial activism, it is imperative to note that
judicial activism is much more than a concept. It is a state of mind. It has its genesis in the
apathy and ignorance of a country’s executive and legislature. It helps the judiciary transcend
its traditional operation of settling disputes in accordance to the law of the land. It is a pro-
active approach to ensure the welfare of the State and its citizens whilst being in tune with the
constitutional framework of the country.
Judicial activism has expanded the role of Indian judiciary as it allows the latter to exercise
certain powers to achieve socio-economic equality through the implementation of the
directive principle of state policy laid down in Part V of the Indian Constitution – which are
not enforceable by law – whilst being the guardian of the citizen’s fundamental rights.

The active adjudication prowess of India’s judiciary has its source in the nature constitution
of India itself. However, it took the judiciary, the executive’s barbaric empathy and a liberal
interpretation of the Constitution to realize its unbridled, yet dormant powers.

The concept of judicial activism has been around for quite a while in the jurisprudence of
common law. One of the first instance was the case of Marbury v. Madision1in 1801 where
the American Supreme Court, invalidated an Act of Congress.

One of the first hints of judicial activism in India was the case of AK Gopalan v. Madras2
where the court performed a judicial review where it asserted that judicial review is a power
which is inbuilt in the Indian Constitution and that the court always has the power to declare
any legislative enactment void, if it were to transgress its limits.

“There are two models of judicial review. One is a technocratic model in which Judges act
merely as technocrats and hold a law invalid if it is ultra vires the powers of the legislature. In
the second model, a court interprets the provisions of a constitution liberally and in the light
of the spirit underlying it keeps the Constitution abreast of the times through dynamic
interpretation.”3

The use of judicial review has been of great use to advocate progressive ideals in the country,
especially in the 1970s and during the emergency, which was a tumultuous period for the
country and the judiciary likewise.

To name some of the iconic doctrines and judgements which have been laid down by the use
of the judicial review,

1. The doctrine of the basic structure of the constitution was laid down in the judicial
review of the 25th and 26th Amendment Acts of 1971 in the case of Keshavananda
Bharti v. State of Kerala4, whereby in a 5:4 judgement, the court ruled that the

1
Marbury v. Madision 5 U.S.137 (18)
2
AK Gopalan v. Madras AIR 1950 SC
3
S.P SATHE, JUDICIAL ACTIVISM IN INDIA - TRANSGRESSING BORDERS AND ENFORCING LIMITS 5 (2002)
4
Keshavananda Bharti v. State of Kerela AIR 1(973) S. C 1461
 legislation cannot destroy the basic structure of the constitution. That there is a
difference between ordinary law and a constitutional amendment. A non-exhaustive
list of the basic structure was also listed which included, fundamental rights, secular
character, federalism etc.
2. One of the progressive judgements of the Supreme Court through judicial review
would be the one given in Mitthu v. State of Punjab5. The court noted that section 315
of the Indian Penal Code, 1860 was unconstitutional as it was violative of article 21 of
the Indian Constitution.
3. In cases of Indira Gandhi Nehru v. Raj Narain 6and Minerva Mills v. Union of India7,
it was held that judicial review was part of the basic structure of the Indian
Constitution, thereby solidifying the extended role of the Indian judiciary to maintain
the essence of constitutionality in all the laws governing the nation of India.

The Indian judicial system was introduced to a new dimension in public administration,
during the infamous emergency. Justice YV Chandrachud and Justice P.N. Bhagwati, were
the torchbearers of the new phenomenon of judicial activism – public interest litigation.

It was novel methods to provide access to justice to majority of masses that are denied basic
human rights. The exposure of the brutality of bonded labour, pollution through industrial
effluents in Jamuna, environmental degradation, education capitation racket etc. were some
of the issues sought to be dealt with through PIL.

It guarantees justice to a larger section of society, which is deprived of access to justice. In

Its aim is to protect and enforce individual and collective rights. It is too much to expect from
poor and illiterate people that they would come out openly against the infringement of their
5
Mitthu v. State of Punjab AIR.
6
Indira Gandhi Nehru v. Raj Narain
7
Minerva Mills v. Union of India
individual or group-rights while fighting with those who are powerful. This argument gives
rise to further question as to what is the way out to get rid of this situation. This situation can
be tackled if some public- spirited men think for them and lend support in case of
infringement affecting the public adversely.

Indian judiciary has seen some ground-breaking incidence of public interest litigation,

1. Rural Litigation Execution Kendra (RLEK) v. State of Kerala8was the first case of an
environmental PIL. A fierce legal battle saw the arguments made by RLEK
instrumental in the drafting of the Environment Preservation Act in 1984. The case
was used as a stepping stone to reconcile the differences between industrialization and
conservation.
2. Parmanand Katara v. Union of India9saw the court take cognizance of a newspaper
report concerning the death of a scooterist and the apathy of the hospitals which
ensued. Thanks, to the activist nature of the judiciary, the case made sure that the
primary objective of hospitals were to save lives without fearing legal consequences.

SUO MOTU

It just so happens that there are some incidences where the Indian judiciary cannot afford to
observe the violation of individualism or the constitution from the bleachers. It gives in to the
urge of trying to make India a more progressive nation. The framers of the Constitution
understood the dilemma that would creep in the minds of the India judiciary and thusly,
framed article 32 and article 226 of the Indian Constitution which is essentially a right to
constitutional remedies but allows the Supreme Court and the High Courts respectively to
any directions or refrain from doing an act, thereby practicing the concept of epistolary
jurisdiction of Suo motu cognizance.

It allow the judge to pass orders on matter of public interest on his own accord without being
approached by the involved parties. Generally, the court uses this power for cases of
contempt of court, reopening an old case, or ordering a probe. However, there have been
instances where the court has undertaken its activist role through Suo motu cognizance:

1. Recently, the Supreme Court of India of Suo motu cognizance of the Lakhimpur
Kheri violence incident where eight people – reported to be farmers – were mowed

8
Rural Litigation Entitlement Kendra (RLEK) v. Union of India
9
Parmanand Katara v. Union of India, 9
 down by a vehicle from the convoy of Akaash Mishra who is a member of the
Parliament.10
2. Another incident would be the Supreme Court’s Suo motu cognizance of the killing of
an additional district judge of Jharkhand – Uttam Anand. The action taken by the
Supreme Court was in order to safeguard the courts and protect the judges.

The broad-minded interpretations of the law have made the judiciary liable to bridge the
social and economic gap that exist in our country. The courts have shown vision and intent in
their rulings like, relief to Mumbai Street dwellers in Olga Tellis v. Bombay Municipal
Corporation AIR 1986 SC 180 or when it came to the aid of Delhi hawkers in Saudan Singh
v. NDMC & Others (1992) 2 SCC 45.

The progressive judgements of the judiciary also include provisions for compulsory
education for children.

However, it must be noted that Indian judiciary has not been able to successfully yield their
powers as they rush towards humanitarian aid and despite leading a surge of re-
democratization of Indian polity with promotion of human rights at the forefront, Indian
judiciary’s stance on big matters have been somewhat incoherent.

For example, they would come down heavily on tannery businesses but fail to properly
advocate human rights against large-scale irrigation projects and nuclear powerplants which
would pose a serious threat to the environment.

The unevenness of judicial activism in India has brought about a lack of narrative and a
purposeful voice to their judgements, even though their hearts are in the right place. To
illustrate the point, the case of Visakha v. State of Rajasthan 1997 (5) SCALE 453, laid down
a much-needed judicial legislation for the victims of sexual harassment at workplaces but
failed to include any dialogue with the everyday victims.

Judicial activism undermines the separation of powers, as it allows unelected judges to make
policy decisions that should be left to the legislative branch. This can lead to an imbalance in
the system of checks and balances, potentially infringing on democratic principles.

10
THE HINDU https://www.thehindu.com/news/national/supreme-court-takes-suo-motu-cognisance-of-
lakhimpur-kheri-violence/article36866470.ece (Last Visited: 29/11/2021)
Additionally, judicial activism can result in inconsistent and unpredictable rulings, as judges
may base decisions on personal beliefs or preferences rather than the text and original intent
of the law. This creates uncertainty and undermines the stability and predictability of the
legal system. Furthermore, it can erode public trust in the judiciary, as the perception of
judges overstepping their bounds may lead to accusations of judicial activism and bias.
Overall, judicial activism, by exceeding the proper role of the judiciary, can have negative
consequences for the democratic process, the rule of law, and public confidence in the
judiciary.