Monday, 31 January 2022

Judicial Activism-by Vedant Karia at LexCliq

 Judicial Activism-by Vedant Karia at LexCliq

Judicial activism has long been a hot topic, especially in light of recent developments. The Supreme Court judges, as well as the other High Courts, have recently re-ignited a long-running controversy. But what exactly “judicial activism” means remains a mystery. The Indian Constitution mandates the state to ensure justice, liberty, equality, and fraternity. In this respect, the Indian court has defended the Indian Constitution. The Indian court has, whenever required, acted to preserve the individual's fundamental rights against the State's unjust, excessive, and unequal actions/inactions. So judicial activism is the polar opposite of judicial restraint. Some court rulings are characterized by judicial activism or judicial restraint.

The English ideals of ‘equity' and ‘natural rights' inspired judicial activism. It is difficult to trace judicial activism in India. For a long time, the Indian judiciary had an orthodox view of judicial activism. But it would be incorrect to state that there has been no judicial activism in India. A few isolated instances of judicial activism have occurred. But they were hidden because the concept was unknown in India. However, judicial activism in India began in 1893 with a dissenting judgment by Justice Mehmood of the Allahabad High Court.

Modern judicial activism arose in India much later. This origin can be attributed to David McClelland's Theory of Social Want. The judiciary had to act owing to executive abuses and excesses. Examinons la justification de cette intervention. It has always been perceived as a hostile department of government since independence from the British Raj. This notion grew in popularity when the bureaucracy devolved into a system for personal benefit.

Politics has always included exploitation and corruption. The unfettered deeds of Money Power, Muscle Power, Media Power, and Ministerial Power subjugated the populace. Judicial policymaking can support or oppose legislative and executive policy initiatives. True judicial activism is making judgments under the mood and time of the times. Justice policy action advocates principles like freedom, equality, and justice. It must be the social movement's arm. A social-economic cycle is triggered by an activist judge.

Given that the judiciary was established as an independent and distinct government entity by the Government of India Act, 1935, and later by the Constitution of India, it would be prudent to trace the judiciary's origins to the period following 1935. A new rule is implemented not only to address and settle the current issue but also to address and resolve all future issues that are not currently before the Court but are expected to emerge. According to Black’s Law Dictionary judicial activism is described as: “a theory of judicial decision-making by which judges allow their personal opinions on public policy, among other factors, to direct their decisions, usually with the implication that adherents to this theory appear to find constitutional violations and are willing to disregard precedents.” 

Judicial activism occurs when the Courts, after hearing both sides, assume the role of the legislature and enact new legislation, new regulations, and new policies. During the first decade of independence, the judiciary was virtually completely inactive, with political veterans running the executive, the parliament working enthusiastically, and the judiciary collaborating with the executive. The Supreme Court held a comprehensive judicial and institutional vision of the constitution from the 1950s to the 1970s. The first significant case of judicial involvement through social action litigation occurred in Bihar, in Hussainara Khatoon vs. the State of Bihar. In 1980, several law professors disclosed the barbaric conditions of incarceration at the Agra Protective Home through a written appeal under Article 21, which was followed by a lawsuit against the Delhi Women's Home filed by a Delhi Law School student and a social worker. 1967 The Supreme Court concluded in Golak Nath v. the State of Punjab that the fundamental rights included in Part III of the Indian Constitution could not be amended, notwithstanding the absence of such a restriction in Article 368, which required a two-thirds majority in both Houses of Parliament.

Following that, in the well-known case of Kesavananda Bharati, two years before the declaration of emergency, the Apex Court held that the government lacked the authority to interfere with the constitution and alter its essential characteristics. In Kesavananda Bharati v. The State of Kerala, a 13-judge Supreme Court bench reversed the Golakh Nath ruling but declared that the Constitution's essential structure could not be altered. What is meant by simple structure' is still unclear, even though some subsequent verdicts have attempted to clarify. The critical aspect to remember is that Article 368 does not refer to the inability of the basic structure to be amended. As a result, the ruling modifies Article 368. Because a considerable number of Supreme Court India cases in which it took an aggressive stance to refer to Article 21 of the Indian Constitution, we will discuss it separately.

Three types of judicial intervention exist: To begin, by declaring any statute unconstitutional; to continue, by declaring judicial precedents unconstitutional; and to conclude, by reading the Constitution. In simple terms, judicial activism refers to the judiciary's political role, similar to the executive and legislative branches. Judicial activism is justified on a variety of grounds, including the collapse of the government, which necessitates the judiciary's assistance and public welfare policies. Activism is defined differently in each community; these categories include law professors, business owners, judges, police officers, administrative officials, and students, among others. Any act perceived as activism by one party can devolve into judicial inactivity for other groups. Judiciary populism can be equated with judicial absolutism, judicial chaos, judicial hegemony, and judicial imperialism. Judicial restraint is alternatively referred to as judicial independence. It is a euphemism for judicial liberalism. Judicial intervention and judicial restraint are terms used to emphasize the Courts' 'correct position.'


The recent Supreme Court ruling provides exciting insight into the transformation of judicial activism in India, giving it a provocative face for the citizens. The Indian Supreme Court's gaze has now shifted beyond social and economic justice and public administration. Its views are often aspirations rather than pronouncements. In post-emergency advocacy, the Supreme Court has surpassed legal positivism.

The Supreme Court, using a literal reading of the Constitution, expands the people's rights to equality and personal liberty. Article 21 of the Indian constitution defines life, liberty, and personality broadly. The Supreme Court, after consulting the Chief Justice, abolished the constitutionally vested power of the President of India to select judges and vested it in the Chief Justice and the Collegium of Four Judges. This demonstrates judicial activism in the territory, as no other country has the power to select and appoint judges.


Whatever the criticisms of judicial activism, it is undeniable that it has improved the lives of the masses in the country. It is righteous wrongs were done by both states and individuals. The slow functioning of the judiciary, also referred to as judicial inertia or legal tardiness, robs the most vulnerable of legal protection. Judicial activism has also started to eliminate these rare aberrations. This can only be achieved by sincere and vocal judicial advocacy, not by lowering the judiciary's public image. The judiciary's greatest asset and the strongest weapon is the public's trust in its ability to deliver fair justice and keep the scales balanced in any dispute.

Vedant Karia


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