This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article is an insight into judicial activism, its background, and its evolution in India.

This article has been published by Sneha Mahawar.

Introduction

Lord Hewart, CJ, who is famous for saying, “It is fundamentally important that justice not only be done but also be clearly and undeniably seen to be done,” gave rise to the concept of judicial activism, which manifested itself in the decisions of numerous so-called “activist” judges. They have been held accountable for bringing justice to the doorsteps of the citizens, even if it means taking unwarranted and unnecessary measures. By stretching the letter of the law a little and acting according to the spirit behind it, the judiciary has intervened in cases where there is a blatant misuse of executive discretion or an unconcerned attitude toward booking the corrupt and other anti-social elements in society.

Under the Indian Constitution, the State has the primary responsibility for ensuring the country’s justice, liberty, equality, and fraternity. The State is obligated to protect the fundamental rights of individuals and to implement the Directive Principles of State Policy. To prevent the state from evading its responsibilities, the Indian Constitution has granted the Court’s inherent powers to review the state’s actions. In this context, the Indian judiciary has been regarded as the protector and guardian of the Indian Constitution.

Following its constitutional obligation, the Indian judiciary has actively defended individuals’ fundamental rights whenever necessary from the state’s unjust, unreasonable, and unfair actions or inactions. By upholding human rights, the judiciary has come a long way in terms of judicial activism, from defending the rights of women in the workplace to implementing the fundamental principles of sustainable development. The judiciary has approached every aspect of human life and proven to be an advantage for the poor by shifting from the “Locus Standi” principle to Public Interest Litigation (PIL). 

Origin and development of judicial activism 

The theory of judicial activism emerged during the judicial review process in the United Kingdom. The British Constitution is an example of an unwritten constitution that allows for judicial activism. During Stuart’s reign (1603-1688), the unwritten constitution created the possibility of judicial review, and thus judicial activism was born.

The judicial review principle was established in 1610 by Justice Edward Coke. In the Thomas Bonham v. College of Physicians case (1610), he made the decision that any law passed by parliament that is against common law or reason can be reviewed and declared void by the courts. This theory of judicial review and, correspondingly, judicial activism was supported by Sir Henry Hobart, who succeeded Sir Edward Coke as Chief Justice of the Court of Common Pleas in 1615.

The first significant case involving the idea of judicial review was Madbury v. Madison (1803), in which the US Supreme Court explicitly declared certain provisions of the Judiciary Act of 1801  unconstitutional. For the first time in American history, a court declared a piece of legislation to be unconstitutional. Since the Supreme Court ruled that federal courts have the authority to invalidate unconstitutional laws, judicial review has gained popularity in the United States.

However, the exact phrase “judicial activism” was used by Arthur Schlesinger Jr. in his article “The Supreme Court: 1947,” which appeared in the January 1947 issue of Fortune Magazine. He used the phrase to categorise the American Supreme Court judges at that time as judicial activists, champions of self-restraint, and judges positioned in between the two sections. 

Further, the American judiciary used the power of judicial review to usher in the era of judicial activism in 1954, with the landmark case of Brown v. Board of Education (1954), where the US Supreme Court ruled unanimously (9-0) that racial segregation in public schools violated the Fourteenth Amendment to the Constitution, which forbids states from depriving anyone within their jurisdictions of equal protection under the law. Furthermore, the Supreme Court in the case of Plessy v. Fergusson (1896) not only abolished laws that treated Black people as a separate class but also guaranteed such rights that were clearly provided for in the Constitution.

The term “judicial activism” was later used on numerous occasions, but the first time a judge used it in a court was in the case of Theriot v. Mercer in 1959. In a related case, Judge Joseph C. Hutcheson used it to oppose a dissenting judgement. He was opposed to judicial activism and the outcomes it sought. The usage also made reference to the shift in connotation that took place in the middle of the 1950s. Some judges viewed the term “judicial activism” as an encroachment.

Furthermore, the ability to engage in judicial activism became a requirement for the existence of an independent judiciary in nations that upheld the rule of law, and other modern democracies quickly followed, giving rise to the concept of judicial activism.

What is judicial activism 

The concept of “judicial activism” is opposed to the idea of “judicial restraint.” Both of these terms are frequently used to describe the assertiveness of judicial power, and they are also used from the perspectives of personal and professional views, putting the courts in a position to lean towards one of the views to play the appropriate role. The terms “judicial activism,” “judicial supremacy,” “judicial absolutism,” “judicial anarchy,” and others are frequently used interchangeably in the United States. The term “judicial activism” is also regarded as ascriptive. This implies that the judges’ performance is based on their ideologies, opinions, values, and interests.

The scope of judicial activism is so broad that no precise definition exists. It does not have a statutory definition because each jurist or scholar defines it differently. Supporters of judicial activism claim it to be a proper form of judicial review.  In contrast, Thomas Jefferson refers to it as the ‘despotic power’ of Federal Judges. According to V.D. Kulshrestha, judicial activism occurs when the judiciary is charged with actually participating in the law-making process and subsequently emerges as a significant player in the legal system.

In contemporary definite terms, judicial activism is frequently seen as a way to correct executive faults by using democratic power within the limits of the Constitution.  It is said that judicial activism empowers judges to act as individual policymakers and independent trustees on behalf of the citizens of the country, in addition to their traditional role. In general, judicial activism refers to the judiciary’s proactive role in correcting errors made by the executive or legislative branches to ensure the efficient coordination of all three crucial pillars.

The discussion above clearly demonstrates that the term “judicial activism” refers to a broader concept. The meaning of the phrase is ambiguous. It is impossible to combine all of it into one concise definition. There are numerous ways to define and comprehend judicial activism. Judges of the Supreme Court and High Courts have rendered several contentious rulings over the past few years that have sparked heated debate. However, it is still unclear exactly what is meant by the term “judicial activism.”

Evolution of judicial activism in India

In the early years after independence, India’s courts were technocratic in nature. Although the goal of justice did not always coincide with this fundamental aspect of how courts functioned, the judiciary was more concerned with following the procedures that were expected of it. To put it another way, the majority of judges at the time were not as creative and did not bother to look for ways to carry out the goal of justice for which they held their positions. Some judges in the British Empire and a newly independent India went out of their way to issue decisions that are now regarded as foundational examples of judicial activism.

The beginning of judicial activism can be traced back to 1893 when Justice Mehmood of the Allahabad High Court issued a dissenting decision that sowed the seeds of activism in India. The case involved an undertrial who couldn’t afford legal representation. In his dissenting opinion, he criticised the rule that appeals should be dismissed solely on the basis that the appellant is unable to pay for the translation and printing of the record in English. This amounted to some form of activism meant to defend the severely harmed undertrials. Although it didn’t sit well with the English judges on the bench, J. Mahmood was forced to resign for using these tactics in court.

Furthermore, the concept of judicial activism in India gained more traction in the late 1960s or early 1970s, when Mrs. Indira Gandhi served as Prime Minister and Mohan Kumaramangalam, a renowned attorney and legal luminary, served as the Union Minister. In order to better serve the interests of the poorer sections of society, the late Mrs. Gandhi attempted to put into practice her favourite slogan, “Garibi Hatao” (remove poverty), by abolishing the privy purses and privileges granted to the former rajas and princes of the princely States of pre-independent India and nationalising the 14 major banks. However, the conservative judiciary took it personally and overturned her attempts. 

Mrs. Gandhi responded strongly and unequivocally, viewing the Supreme Court of India’s ruling in the Privy Purse abolition and bank nationalisation cases as an example of judicial overreach. On the recommendation of Mr. Kumaramangalam, it is believed that the conservative and senior Supreme Court justices who participated in the majority decisions in the aforementioned cases were passed over for appointment to the position of Chief Justice of India. The appointment of the dissenting judge, Mr. A.N. Ray, who was fourth in the line of seniority, led to the resignation of the three senior judges (Justices Hegde, Shelat, and Grover). This served as the foundation for the theory of judicial activism, which emerged as a result of the conflict between the executive and the judiciary. 

Early cases of judicial activism 

The following Supreme Court rulings provide insight into the development of judicial activism in independent India.

During the reign and dominance of British courts, the Supreme Court functioned as a technocratic court, but it gradually began to take an activist stance. The first landmark case in this regard was A.K. Gopalan v. the State of Madras (1950), in which a writ was filed to determine whether detention without trial was a violation of fundamental rights under Article 14, 19, 21, and 22. The Supreme Court opined that the written Constitution contains the authority for judicial review. Even though the challenge was unsuccessful, it did start a new legal trend that became apparent in the years that followed.

Freedom of press

In the case of Sakal Newspapers Pvt. Ltd. v. Union of India (1962), the government sought to regulate the number of pages in relation to the price of the newspaper in accordance with the Newspaper Act of 1956 and order of 1960. The Supreme Court ruled that newspapers could not be subject to the same regulations as other businesses because they served as a forum for the exchange of ideas and information. This decision broadened the protections for free speech provided by Article 19(1)(a) of the Constitution.

Reservation policy

In the case of Balaji v. State of Mysore (1963), the Supreme Court reasoned that economic backwardness was the root cause of social backwardness. The Court distinguished caste from class and ruled that caste should not be used to assess backwardness. Additionally, it was decided that the reserved category’s percentage of the total should not exceed 50%. It was decided that Article 14, as well as the subsets of Articles 15 and 16, must be complied with. Similar limitations on the reservation were imposed by the Court in the case of Chitralekha v.  State of Mysore (1964).

Doctrine of prospective overruling

The doctrine of prospective overruling first appeared in the American legal system.  It states that a decision made in a specific case will only affect the future and will have no retrospective effect on previous decisions. In Golaknath v. State of Punjab (1971), the Supreme Court of India pioneered the idea of “prospective overruling” while addressing the constitutional validity of the 17th Amendment to the Constitution and determined that Parliament lacked the authority to amend Part III of the Constitution or to abridge any of the fundamental rights.

Doctrine of basic structure

In the case of Keshavananda Bharti v. State of Kerala (1973), the Supreme Court issued a decision that is regarded as a watershed moment in Indian constitutional jurisprudence. While addressing the scope of the amending power conferred by Article 368 of the Constitution, the Court developed the theory of “basic structure.” By a 7:6 majority, a Bench of 13 judges ruled that Parliament had broad powers to amend the Constitution but that power must not abridge or destroy the basic structure or basic framework of the Constitution.

Habeas corpus case

The case of ADM Jabalpur v. Shivkant Shukla (1976), in which Article 21 was brought up, resulted in the most contentious Supreme Court decision regarding judicial activism. The majority of the Bench hearing the case of ADM Jabalpur held that in cases of dire emergencies, such as those that existed between 1975 and 1977, a legal procedure could be established, following which even human life could be taken away. Although Justice Chandrachud, who wrote the decision, faced criticism for penning a pro-government opinion, the legal theory he advanced was an excellent illustration of judicial activism.  Justice Chandrachud has interpreted Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to maintain the country’s sovereignty if it is threatened by either internal or external aggression.

Some other cases

In the case of Maneka Gandhi v. Union of India (1978), Maneka Gandhi argued that the government had violated her personal freedom by seizing her passport. The court ruled that the seizure of the passports was unlawful. The A.K. Gopalan case ruling was overturned by the Supreme Court, ensuring the legitimacy of personal liberty under Articles 14, and 21.

In Minerva Mills v. Union of India (1980), the Supreme Court rejected the attempt by the government to overturn the Kesavananda Bharti decision and usurp unrestricted power to amend the Constitution to its liking. As a result, the Court decided that judicial review is an essential part of the legal system and that Parliament is not permitted to broaden the purview of the previously granted limited powers.

Furthermore, Justice P.N. Bhagwati, India’s father of judicial activism, strengthened the concept in several decisions, including Hussainara Khatoon v. Home Secretary, State of Bihar (1979), and Khatri v. the State of Bihar (1981). This paved the way for it to be used as a tool in the hands of judges to ensure complete justice.

Thus, the evolution of judicial activism in India can be divided into three broad stages: 

  1. 1950-1970: The period of the classical judiciary, which did not engage in any kind of activism.
  2. 1970-2000: The period in which the judiciary and judges established the concept of judicial activism and it gained popularity. 
  3. 2000-till now: Judicial activism has flourished and touched various aspects, but it has also been infested by judicial overreach.

Constitutional powers of the Supreme Court and High Courts in India 

Judicial activism is the practice of using the courts’ authority to examine state actions. According to Articles 32 and 226 of the Indian Constitution, the higher judiciary has the power to consider any legislative, executive, or administrative action as unconstitutional and void if it does so. One of the core provisions of the Indian Constitution is the right to judicial review.

Article 32 of the Indian Constitution 

Article 32 of the Indian Constitution provides that every person has the right to directly file a case with the Supreme Court of India for the enforcement of their fundamental rights. Any fundamental right under Article 32 may be enforced by an order or writ issued by the Supreme Court.

The Supreme Court held in Fertilizer Corporation Kamgar Union v. Union of India (1981) that the Supreme Court’s authority granted by Article 32 is an important part of the fundamental framework of the Indian Constitution because “it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.” It cannot be suspended, even in an emergency. In many cases, the Supreme Court has increasingly used a very liberal interpretation of Article 32 to uphold fundamental rights even when faced with private entities performing public duties.

Article 226 of Indian Constitution

Article 226 of the Indian Constitution provides that the High Courts have the power to issue any suitable order or writ for the enforcement of basic rights and other legal rights. In this case, it appears that the High Court’s jurisdiction under Article 226 goes beyond the Supreme Court’s jurisdiction under Article 32. Articles 32 and 226 form the foundation of the Indian Constitution. Furthermore, the High Court was also granted authority over lower courts, tribunals, and special courts by Article 227.

Article 136 of the Indian Constitution

In addition, the Supreme Court may grant special leave to appeal any judgment, decree, determination, sentence, or order made by any court or tribunal in any cause or matter under Article 136 of the Indian Constitution. In situations where there has been grave injustice or there is a significant legal issue, the Supreme Court uses its unique authority.

With the discretionary authority provided by Article 136, a case may be decided in accordance with justice, equity, and good conscience. However, it needs to be used carefully and with caution. In Pritam Singh v. the State (1950), the Supreme Court ruled that the broad discretionary power granted by Article 136 should only be used in exceptional circumstances. 

Additionally, the Supreme Court created the idea of the curative petition in the case of Rupa Ashok Hurra v. Ashok Hurra (2002),  while debating whether an aggrieved person has any right to relief even after the Supreme Court’s final decision.

Article 142 of the Indian Constitution

Article 142 of the Indian Constitution, which gives the Supreme Court the authority to issue an order to ensure full justice in the case at hand, is the most significant provision in relation to judicial activism. The Supreme Court’s decision in M Siddiq (D) Thr Lrs v. Mahant Suresh Das and Ors (2019), also known as the Ram Janmabhoomi/Babri Masjid case, overturned the Allahabad High Court’s (2010) ruling in accordance with Article 142 of the Indian constitution, is an illustration of such an order.

The Supreme Court of India has the authority to enact laws under Article 142 of the Indian Constitution, despite the fact that the Parliament of India retains the primary authority to do so. The order will be in effect until Parliament passes legislation to address the problem, but it should be noted that this Article can be invoked when there is a gap in the law or the order is in the public interest.

arbitration

Notable forms of judicial activism 

The invention of Public Interest Litigation 

Judges like V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and D A Desai supported judicial activism and issued numerous decisions addressing people’s fundamental rights. It is frequently claimed that the development of public interest litigation and the ensuing liberalisation of the Locus Standi rule are the roots of judicial activism.  PIL was conceived with the noble goal of empowering the oppressed, poor, and needy by ensuring justice for them by relaxing the rigour of Locus Standi. 

Since the 1970s, the Supreme Court has accepted genuine cases even from people who are not affected. Public Interest Litigation encompasses situations in which the general public interest has been violated or harmed as a result of official indifference and the decisions made in these cases fall under the umbrella of judicial activism. PIL guarantees justice for a larger group of people who do not have access to it. In India, social activists and public interest litigators have actively supported the higher judiciary in advocating measures to ensure the welfare of the oppressed, underprivileged, and exploited classes.

The judiciary has evolved into a reformer with the ability to influence socioeconomic situations. The PILs provide an overview of how proactive Indian courts work to change society. So far, the Supreme Court has considered the issue and the rights of children and women, oppressed and vulnerable groups in society, bonded labour, casual labour, mentally and physically handicapped, undertrial prisoners, detainees, and convicted persons held in custody, and so on.

Judicial decisions on PILs

  1. The practice of taking matters of public importance directly to the Supreme Court began with the case of Maharaj Singh v. State of Uttar Pradesh (1976). In this case, the court agreed that a lack of legal standing would not be sufficient to dismiss a case where harm had been done to the community. The term “PIL” was first used by Justices Iyer and Bhagwati in the Fertilizer Corporation Kamgar Union case. The Court’s decision also referred to petitions that were submitted in the form of letters as having epistolary jurisdiction.
  2. In Hussainara Khatoon v. State of Bihar (1979), a petition was filed with the Supreme Court in response to newspaper articles about the circumstances surrounding undertrials in prison. Some of the defendants had already served more time than was permitted for the crime for which they were detained. The cases were pending for years before an overburdened judiciary, and those on trial were unable to obtain bail because they did not have enough money to pay as bonds and sureties. As a writ, the petition was approved. If they were unable to raise the required bail sum, Justice Bhagwati and the other judges on the bench mandated their release on personal bonds. They claimed that a speedy trial was a fundamental right that couldn’t be restricted due to money. The right to unrestricted access to legal representation is part of the court’s ruling on both the right to life and the right to personal liberty. With this ruling, the judicial system fixed a flaw, and thousands of people facing such undertrials have been granted bail since then.
  3. The court in SP Gupta v. Union of India (1982) also acknowledged the disadvantageous circumstances facing many citizens and ruled that anyone with sufficient interest and a sincere intention could petition the court on their behalf. They argued that the court would treat letters as writ petitions and proceed accordingly and that procedures are nothing more than the handmaidens of justice and cannot be rejected solely for technical reasons.
  4. The Supreme Court ruled in People’s Union for Democratic Rights v. Union of India (1982) that public interest litigation is distinct from the conventional adversarial justice system. The court claims that the goal of public interest litigation is to advance the public good. Public interest litigation was created to provide justice to the poor and other socially or economically disadvantaged members of society. Such a large number of people’s constitutional or legal rights should not go unnoticed.
  5. In the Municipal Council, Ratlam v. Vardichand (1982), the Court accepted a writ petition submitted by a group of citizens seeking orders against the local municipal council for the removal of open drains. The Court stated that if “the centre of gravity of justice is to shift, as indeed the Preamble to the Constitution mandates, from the traditional individualism of Locus Standi to the community orientation of public interest litigation, the court must consider the issues as there is a need to focus on ordinary men.” In a similar vein, the Supreme Court of India accepted a petition for court orders to safeguard the lives of people who used the Ganga’s flowing water as public interest litigation in the case of M.C. Mehta v. Union of India (1988). In this case, the court ordered local governments to take appropriate action to stop Ganga River pollution.

Thus, the goal of public interest litigation is to ensure justice for the most vulnerable members of society, whereas judicial activism is a tool for ensuring justice for all members of society. The Supreme Court and the high courts have used their judicial activism authority to issue numerous rulings since the declaration of the emergency.

The Basic Structure Doctrine 

In addition to creating procedural techniques, the Supreme Court’s activism has enriched jurisprudence with pioneering concepts like the basic structure doctrine. According to this, any amendment that alters the basic structure of the Constitution is unconstitutional.

The Supreme Court ruled in Kesavananda Bharati v. the State of Kerala that the power to amend the Constitution guaranteed by the Constitution did not include the possibility of amending the most fundamental and essential elements of the Constitution. The Constitution’s underlying framework cannot be altered by any amendment. The majority defined the fundamental elements of the constitution as the rule of law, secularism, federalism, equality, and democracy.

Following the Keshavananda Bharati ruling, the Supreme Court invalidated a number of Constitutional Amendments, putting their fundamental test of basic structure. The 39th Amendment was declared unconstitutional by the court in Indira Nehru Gandhi v. Raj Narain (1975) because it sought to uphold Mrs. Gandhi’s election after it had been declared invalid by the Allahabad High Court and while her appeal was still pending before the Supreme Court.

In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court ruled that Parliament had expanded its limited power of amendment contained in Article 368 into absolute power.

In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court determined that paragraph seven of the Constitution’s 10th Schedule, which prohibited judicial review of the Speaker’s or Chairperson of the House’s decision regarding the disqualification of MLAs or MPs, violated the basic structure of the Constitution.

By developing the basic structure doctrine, the Supreme Court ensured that at least some fundamental rights of the underprivileged, minorities and weak cannot be curtailed by the Constitution, not even through Constitutional Amendments. 

Article 21 and judicial activism

If there is a Supreme Court decision that has revolutionised the interpretation of Article 21, which safeguards the right to life and personal liberty, it is Maneka Gandhi v. Union of India (1978). This decision has awakened the Indian judiciary from a persistent state of dormancy with regard to the right to life and the freedom of the individual guaranteed by Article 21 of the Constitution.

A new interpretation of Article 21 of the Indian Constitution was provided by the Supreme Court of India in the case of Maneka Gandhi v. Union of India. It set a great precedent for the further evolution of concepts of reasonableness and fairness. According to the Supreme Court, the concept of life encompasses not just a mere animal existence but also an existence with all the rights that entails. The Supreme Court declared for the first time that simply outlining a process for denying life and liberty is insufficient; the process itself must be just and reasonable.

To protect the rights of millions of people who lack access to justice, Article 21 of the Constitution was expanded to include a broader definition of life, personal liberty, and “procedure established by law.” It actively denounced the abuse of power and inaction on the part of public officials as it fought for the interests of the average citizen. A few cases are as follows:

In the case of P. Rathinam v. Union of India (1994), the Court was asked whether the right to die falls under the purview of the right to life. The majority of the Bench found that it does, and Section 309 of the Indian Penal Code was ruled invalid and unconstitutional. This was overruled in the case of Gian Kaur v. State of Punjab (1996), where the Court ruled that while Article 21 does include the right to die with dignity, the right to life does not include the right to die and that committing suicide is punishable under Indian law. Furthermore, the Supreme Court determined that passive euthanasia is covered by the definition of the right to life under Article 21 in one of the most well-known cases, Common Cause (A Regd. Society) v. Union of India (2018).

The right to privacy is now recognised as an essential component of the right to life and personal liberty. The sanctity of a person’s private sphere is upheld by the ruling in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2018). The “right to be alone” is only one aspect of the right to privacy, and it has grown significantly since then.  It includes the freedom to make important personal decisions without unjustified state interference, including those involving intimate sexual behaviour.

In the case of Navtej Singh Johar v. Union of India (2018), the Supreme Court declared a portion of Section 377 of the Indian Penal Code to be unconstitutional and stated that it “violates the right to life and liberty guaranteed by Article 21, which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions of a human being”.

In the case of Shakti Vahini v. Union of India (2018), the Supreme Court ruled that the right to choose one’s life partner is a fundamental right protected by Article 21 and ordered the government to take all reasonable preventive steps to prevent honour killings and related crimes.

In the case of Olga Tellis v. Bombay Municipal Corporation (1986), the Court stepped in to support pavement dwellers in Bombay by pointing out that the right to life also includes the right to a livelihood.  In the M.C. Mehta case, Article 21 recognised the right to a pollution-free environment as a fundamental right. 

The pro-environmental stance of the judiciary 

The Indian judiciary has taken an active role in protecting the environment for the benefit of the population. Given that a pollution-free environment was deemed to be a fundamental right pursuant to Article 21 of the Constitution, the Indian judiciary deserves all the credit for sustainable development and environmental protection. The courts have decided on a number of historic rulings requiring public bodies to address environmental issues. 

One of the judiciary’s most crucial tools was Public Interest Litigation.  Several cases involving environmental protection, preservation, and sustainability have been handled through PIL, making environmental protection a constitutional duty and obligation. The principles and doctrines that have enriched environmental jurisprudence have steadily grown as a result of PIL cases and the accompanying activist approach of the judiciary.

The Indian Supreme Court’s interpretation of the scope of the authority granted by Article 32 of the Indian Constitution to issue directions and orders ‘whichever may be appropriate’ in appropriate proceedings led to the establishment of the doctrine of absolute liability for harm brought on by hazardous and inherently dangerous industries. There are no exceptions to the newly developed doctrine of absolute liability for damages brought on by industry engaged in hazardous and inherently dangerous activities. This doctrine substitutes the English common law’s strict liability rule. This rule was developed in the case of M.C. Mehta v. Union of India (1987), also known as the “oil gas leak case.”

The Court in the above case held that the addition of exceptions to the rule, such as an act of God, the plaintiff’s default, the plaintiff’s consent, an independent act of a third party, and statutory authority, greatly diminished the strict liability principle developed in England more than a century ago in Rylands v. Fletcher (1868). The Supreme Court ruled that cases involving the determination of liability in hazardous and inherently dangerous industries in India did not fall under the exceptions to the strict liability principle.

Since then, beginning with the Rural Litigation Kendra case (1985), the Court has introduced concepts like “sustainable development,” “polluter pay,” and the public trust doctrine principle. It has also adopted some other concepts from international treaties like the Stockholm Declaration, Rio Declaration, Kyoto Protocol, Biodiversity Convention, various United Nations Environmental Programs, and so forth. 

In a progressive development of environmental jurisprudence, the Supreme Court elevated the right to a clean and healthy environment to the status of a fundamental human right under Article 21 of the constitution. India’s environmental governance has benefited from the application of such a constitutional shield to environmental concerns through active judicial activism. The Supreme Court has changed the definition of life from mere animal existence to a meaningful existence through a number of judicial decisions.

In Milkman Colony Vikas Samiti v. State of Rajasthan (2007), the Supreme Court ruled that the right to life includes the right to a clean environment, which contributes to a healthy body and mind. In Arjun Gopal and others v. Union of India and others (2018), the Supreme Court stated, “No one may be permitted to infringe on the right to health of others, granted under Article 21, under the guise of celebration.” 

Justice Shah stated, “We cannot endanger the lives of many people for the sake of a few. The right to life of innocent people is our top priority.”

India’s courts have played a special role in continuously advancing the notion of a decent life by addressing and resolving a variety of environmental issues. In addition to being a human right, everyone in nature, including human and non-human creatures, has a right to a clean and healthy environment. By adopting an activist stance, the Indian court has upheld the right to a clean and healthy environment that is guaranteed by the constitution.

Women empowerment 

The role of judicial activism extends beyond the aforementioned forms. Another area where this has been seen is in women’s empowerment. The judiciary has made significant progress in preventing workplace exploitation of women and improving conditions for women. 

This was also made clear in the case of Air India v. Nargesh Meerza (1981), where the Supreme Court ruled that the rule requiring an air hostess to leave the workforce following her first pregnancy was invalid, unconstitutional, and in violation of Article 14 of the Indian Constitution.

In Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985), the Supreme Court overruled Muslim Law and extended the period of Iddat from four months and ten days to provide justice to Shah Bano Begum. 

In Vishakha v. State of Rajasthan (1997), the Supreme Court issued guidelines for the prevention of sexual harassment cases under Article 32 read with Articles 141 and 142. These regulations from 1997 have been replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013.

In the Railway Board v. Chandrima Das (2000) case, employees of the Indian Railway gang-raped a Bangladeshi national in a room at Howrah’s Yatriniwas station. The government argued that it was immune from liability under tort law because the ‘Yatriniwas’ were not committed while it was performing its official duties. The Hon’ble Court, on the other hand, rejected this claim, stating that the Union of Indians employees, who are in charge of managing the establishment, including Yatrinivas and the railway station, are important components of the machinery of government that carries out commercial activity. 

If any of these employees violate the law, the union government where they work can be held vicariously liable for compensating the victim of their actions, provided that other legal requirements are met. The Supreme Court granted the victim a compensation award of Rs. 10 lakh. The scope of the right is very broad because it extends to non-citizens as well.

In the Laxmi v. Union of India (2015) case, in 2006, Laxmi, a victim of an acid attack, filed a petition calling for laws to control the sale of acid and to compensate the victim. In 2013, the Supreme Court put strict restrictions on the sale of acid due to the rise in cases involving acid attacks on women. 

The decision made it unlawful to sell acid. Dealers are only permitted to sell acid to customers who have valid identification and can justify the purchase. The dealer is required to notify the police of the sale within three days. Additionally, it prohibited the sale of acid to anyone under the age of 18.

By decriminalising adultery and striking it from the Indian Penal Code in the case of Joseph Shine v. Union of India (2018), the Court overturned its own decision in the case of Sowmithri Vishnu v. Union of India & Anr (1985), reasoning that the law was based on gender stereotypes and thus violated Articles 14 and 15 of the Constitution because it only considered the husband of the adulteress who was aggrieved rather than the wife of the adulterer. The Court went on to say that making adultery a crime would be an unjustified invasion of people’s privacy because it would make legalising interpersonal relationships more stringent than they already are.

The Delhi High Court’s decision to commission women into the Army on a permanent basis was recently upheld by a Supreme Court Bench in Defense Secretary v. Babita Puniya and Others (2020). The Supreme Court ruled that excluding women from command positions based only on their physical characteristics and domestic duties is unreasonable. The Court further declared that women’s complete exclusion is unlawful and in violation of Article 14 of the Constitution.

Transformation from activism to overreach 

Parliament has frequently charged the judiciary with judicial interference. The judiciary is acting outside of its constitutional authority, according to the parliament. Judicial activism that goes beyond all justifiable limits is referred to as “judicial overreach.” Judicial overreach occurs when the courts arbitrarily, excessively, and repeatedly intrude into the domain of the legislature and the executive. 

Although the differences between judicial activism and overreach are subtle, their effects on society are completely different. Contrary to the requirement of judicial activism, the intention of judicial overreach is not genuine. Overreach impedes the functioning of a healthy democracy’s institutions.

According to CJ J S Verma, “Judicial activism is appropriate when it is in the realm of legitimate judicial review. There shouldn’t be any judicial tyranny or ad hocism.”  

In April 2007, in New Delhi, Dr. Manmohan Singh spoke at a conference of Chief Ministers and Chief Justices of the High Court. He said, “Courts have played a salutary and corrective role in countless instances. Our people hold them in the highest regard for that. In addition, it is difficult to distinguish between judicial activism and overreach.” This statement sparked broader discussions about judicial accountability in India.

The judiciary has no justification for exercising restraint. In the case of Divisional Manager, Aravalli Golf Course v. Chander Hass (2007), the Supreme Court ruled that judges should not overstep their authority and should not attempt to seize control of the government. Each branch of government, including the legislature, executive, and judiciary, must respect the separation of powers and refrain from meddling in the affairs of the others.

The court emphasised that “judicial activism” should not be mistaken for “judicial adventurism,” noting that “judicial intervention,” “judicial encroachment,” and “judicial activism” are frequently justified by the argument that the legislature and executive are not carrying out their duties properly. The judiciary is no exception to this rule, with cases pending in various courts for more than fifty years. To maintain a healthy balance of power among the three branches of government, the courts should exercise a certain amount of restraint.

Many fundamental constitutional principles are violated by judicial overreach. There is no excuse for it, so it violates the separation of powers. It goes against the law’s supremacy, which is guaranteed by the rule of law. The court, on the other hand, places itself above the law and applies it however it sees fit. Additionally, it strikes against the democratic value of accountability. In a democracy, responsibility is established for all deeds committed, choices made regarding public policy, and executive action or inaction. However, there is simply no accountability of any kind when the court starts to intervene in these areas because courts operate independently of anyone.

Judicial restraint 

The growing number of cases involving judicial overreach sparked a debate about judicial restraint as a preventive measure. Judicial restraint stands in contrast to judicial activism and overreach.

Judicial restraint is a judicial decision-making philosophy in which judges avoid indulging in their personal beliefs about the public good in favour of merely interpreting the law as legislated and according to precedent. The fundamental concept underlying judicial restraint is that the will of the people is best expressed through legislative bodies and that people should bear the consequences of their political choices. Policies are bound to change when the government changes. And with their decision, judges should abstain from establishing new policies. 

To preserve the delicate balance of power among the various branches of democracy, the Supreme Court has repeatedly emphasised the significance of judicial restraint.

In the case of Minor Priyadarshini v. the Director of Elementary (2016), Justice Markandey Katju stated, “Under the Constitution, the legislature, the executive, and the judiciary each have their own broad spheres of operation. If any of these three state bodies ventures outside of their respective jurisdictions, the Constitution’s delicate balance will be upset. Therefore, the judiciary must use restraint and repress the desire to act as a super-legislature. It will only increase its own respect and reputation by exercising restraint.”

In the well-known case of S.R. Bommai v. Union of India (1994), the Court determined that there can be no judicial review when there is a high level of political interest involved and that the judiciary should not get involved. 

In Almitra H. Patel v. Union of India (2000), the Supreme Court rejected giving the Delhi Municipal Corporation instructions on how to clean Delhi, claiming that the matter was outside of its purview and that all it could do was ask the organisation to carry out its legal obligations.

In a number of other cases, the court has upheld the restraint principle and its limited application. In Divisional Manager, Aravali Golf Course v. Chander Haas (2007), the Supreme Court stated that “judges must know their limits and are not to run the government. Instead of acting like emperors, they must be modest and humble. The Constitution establishes a clear division of power, and each branch of government is obligated to respect the others and refrain from encroaching on their domain.”

The Supreme Court once more emphasised in Government of Andra Pradesh v. P Laxmi Devi (2008) that “invalidating a legislative act is a grave step that should never be taken lightly. A court may rule that a statute is unconstitutional not simply because this point of view is possible, but only when it is the only viewpoint that is not subject to the rational question“.

Difference between judicial activism, restraint and overreach

Judicial activism

Judicial activism is the term for the judiciary’s proactive role in defending the rights of citizens. Judicial philosophy drives judges to reject established precedents in favour of innovative and progressive social policies.

Judicial restraint 

Judicial restraint is the exact opposite of judicial activism. It is a theory of judicial interpretation that urges judges to restrain their power. As a procedural theory, the idea of restraint urges courts to hold off on making decisions on legal matters, especially constitutional ones, unless the decision is necessary to settle a particular dispute between opposing parties. It encourages courts debating constitutional matters to accord the elected branches considerable credibility and to only reject their acts when they violate the constitution.

Judicial overreach

Judicial overreach is the term used when judicial activism turns into judicial adventurism. This type of activism involves frequent, arbitrary, and unjustified intrusions by the judiciary into legislative affairs. By doing this, the judiciary goes beyond its authority, risks interfering with the legislative or executive branches of government, and goes against the spirit of the separation of powers.

Difference between judicial activism and judicial restraint

Judicial activism and judicial restraint are terms used to describe the use of the power of the judiciary. Some of the differences between judicial activism and judicial restraint are as follows:

  1. Using the Constitution to promote existing values and conditions is known as judicial activism. Contrastingly, judicial restraint restricts the power of the judge to strike down a law.
  2. Judicial activism and judicial restraint have different objectives. Judicial restraint aids in the preservation of the balance of power among the three branches of government: the judiciary, the executive, and the legislative. In this case, the judges and the court advocated reviewing an existing law rather than changing it. Judicial activism contributes significantly to the creation of social policies on issues like the protection of individual rights, civil rights, public morality, and political injustice.
  3. Judicial activism considers changing aspects of society, whereas judicial restraint is not required to consider wider issues.

Difference between judicial activism and judicial overreach

  1. There is very little difference between judicial activism and overreach. Simply put, judicial overreach happens when judicial activism goes too far and turns into judicial adventurism. The court runs the risk of interfering with the operations of the legislative and executive branches of government when it exceeds its authority.
  2. Although judicial activism is viewed favourably as a supplement to the executive’s failings, overreaching into the executive’s purview is seen as an intrusion into the democratic process.
  3. Individual perceptions influence whether an action is considered activist or excessive. 
  4. The court, on the other hand, has always contended that they must intervene and issue orders due to legislative and executive overreach.

Conclusion 

The scope of judicial activism is so broad that no precise definition exists. The powers for judicial activism or review are derived from the Indian constitution, which empowers them to perform an effective function by asserting themselves. In the Judiciary, protection of the Constitution, rule of law, and constitutionalism are strengthened by judicial activism, which serves as a safety net in the event of a crisis brought on by a different interest group in society. The judiciary oversees the administration of justice and ensures that decisions are made in the public interest and in good faith.

However, courts should exercise caution when implementing the concept. The judges should exercise self-control and limit their interference with other organs. When judges become overly enthusiastic, they tend to cross certain lines, making it difficult to maintain the traditional functioning of the courts. As a result, there must be a distinction between judicial activism and judicial overreach because judicial overreach will destabilise the judiciary. To uphold the nation’s peace, prosperity, law, and order, the government must work more effectively and smoothly. The task of covering up and correcting the wrongdoing and poor judgement of the government cannot be placed as a heavy burden on the judiciary. The skill of judicial activism should be used with extreme caution because it is the height of judicial creativity and a delicate subject. Otherwise, the integrity of the system may be undermined.

FAQs

Why is judicial activism necessary in India?

The legislature has the authority to enact laws in India, and the judiciary is not permitted to intervene. However, there have been instances when the legislature has failed to pass legislation when it was required. In such cases, the judiciary may use the concept of judicial activism to deliver justice to the people, necessitating activism.

Does activism of the Supreme Court go against the Constitution?

No, the Supreme Court has always followed the Constitution. It has tenaciously performed its main duty of upholding constitutional goals. It is the Court’s constitutionally mandated duty to enforce the law, not just for minor infractions, but for those that have serious consequences for the public at large. In such cases, our constitutional framework does not allow for any criticism of such acts as judicial overreach.

Is the judiciary a despotic branch of the State?

The judiciary is not a despotic branch of the state. Despite expanding the areas in which it can weigh in on issues of public administration and policy, the Indian Supreme Court is well aware of the limitations that must be adhered to. The Supreme Court stated in the case of P. Ramachandran Rao v. the State of Karnataka (2002) that it does not consider itself to be an Imperium in Imperio or would function as a despotic branch of the State.

How does judicial activism strengthen democracy in India? 

Judicial activism gives judges the power to make decisions that support innovative and progressive social policies, which helps social engineering. By upholding constitutional restraints, judicial activism in a contemporary democratic system acts as a check on legislative excess and executive tyranny. Additionally, it contributes to the expansion and protection of individual rights.

References 


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