The Judiciary’s Proactive Stance: A Journey Through Judicial Activism

When citizens face systemic injustice and constitutional violations, where do they turn? In India, the judiciary has emerged as a powerful guardian of fundamental rights through a practice known as judicial activism. This proactive approach has transformed how courts interpret the Constitution and enforce accountability across all branches of government.

What is judicial activism? 🔗

Judicial activism represents the proactive role of the judiciary in protecting citizens’ rights and promoting justice in society. Rather than passively interpreting laws, activist courts actively shape legal frameworks to address emerging social issues and fill legislative gaps.

In India, the Supreme Court and High Courts possess the power to examine any law’s constitutionality and declare it unconstitutional if it contradicts constitutional provisions. This judicial review power, established under Articles 13, 32, and 226 of the Constitution, forms the foundation of activism.

The term originated in the United States, first coined in 1947 by American historian Arthur Schlesinger Jr. In India, pioneering justices including V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai laid the groundwork for this transformative approach during the 1970s and 1980s.

The evolution of judicial activism in India 🔗

India’s judiciary was relatively passive in the early decades after independence. Courts functioned primarily as technocratic bodies, strictly interpreting laws without venturing beyond their traditional role. However, the 1970s marked a turning point when the Supreme Court began adopting a more active approach through constitutional interpretation.

The transformation accelerated following the Emergency period of 1975-1977. After Indira Gandhi’s Emergency regime ended, the Supreme Court expanded popular access and broadened its jurisdiction through Public Interest Litigation cases involving human rights violations and governmental failures.

The landmark Kesavananda Bharati case in 1973 established the basic structure doctrine, declaring that the executive had no right to tamper with the Constitution’s basic structure. This decision fundamentally reshaped the balance of power between branches of government.

Public Interest Litigation as a catalyst 🔗

Public Interest Litigation was introduced by Justices P.N. Bhagwati and V.R. Krishna Iyer as a relaxation of the traditional locus standi rule. This innovation allowed any concerned citizen to approach courts on behalf of disadvantaged groups unable to seek justice themselves.

The 1979 case of Hussainara Khatoon marked a watershed moment. The Supreme Court ordered the release of 40,000 undertrial prisoners in Bihar who had been detained longer than their potential sentences, establishing the right to speedy trial as fundamental under Article 21.

PILs eliminated traditional standing requirements, allowing any public member to file a writ petition on behalf of persons who cannot approach courts directly due to poverty or disadvantage. Simple letters to the Court could be accepted as petitions with no filing fee.

Landmark judicial interventions 🔗

Judicial activism has produced transformative decisions across multiple domains, from environmental protection to workplace rights and social justice.

Workplace protection for women 🔗

The 1997 Vishakha case exemplifies how courts filled legislative vacuums. After Bhanwari Devi, a social worker preventing child marriage, was gang-raped and denied justice by the Rajasthan High Court, women’s groups filed a PIL under the collective platform of Vishakha.

In the absence of specific legislation from Parliament, the Supreme Court laid down legally binding guidelines to protect women against sexual harassment at the workplace. The Court defined sexual harassment comprehensively and mandated employers to establish complaints committees, demonstrating judicial willingness to legislate from the bench when necessary.

These guidelines remained in force until Parliament enacted the Sexual Harassment of Women at Workplace Act in 2013, showing how judicial activism can prompt legislative action.

Environmental jurisprudence 🔗

The Supreme Court elevated the right to a clean and healthy environment to fundamental right status under Article 21. Through cases like M.C. Mehta’s environmental PILs, courts introduced principles like absolute liability, polluter pays, and the precautionary principle.

Judges issued detailed directives forcing the Executive to implement pollution control measures, including mandatory unleaded petrol and establishing the Central Pollution Control Board. Courts even ordered Delhi’s auto-rickshaws to convert to natural gas to reduce pollution.

Prison reforms and human rights 🔗

In Sheela Barse v. State of Maharashtra, a journalist’s letter addressing custodial violence against women prisoners was treated as a writ petition, demonstrating the flexibility courts adopted to address human rights violations.

Courts expanded Article 21’s scope to include the right to live with human dignity, free legal aid, and protection from cruel treatment. These interpretations transformed constitutional guarantees from theoretical promises into enforceable rights.

Why judicial activism became necessary 🔗

Several systemic failures necessitated the judiciary’s proactive stance. Rampant corruption, executive callousness, parliamentary ignorance of legislative duties, and degrading democratic principles created a vacuum that courts felt compelled to fill.

The executive’s inability or unwillingness to address pressing social issues left marginalized communities without recourse. Traditional litigation procedures created barriers for the poor and disadvantaged, who lacked resources to approach courts through conventional channels.

In this context, judicial activism emerged not as judicial overreach but as a constitutional necessity to uphold the rule of law and democratic values when other institutions failed.

The role of Article 142 and judicial legislation 🔗

Article 142 of the Constitution empowers the Supreme Court to pass orders necessary for doing complete justice. The Supreme Court can legislate under this provision when there is a vacuum in law on the concerned subject matter. However, such judicial legislation remains in force only until Parliament enacts proper legislation.

This approach recognizes that Parliament possesses greater resources and democratic legitimacy for lawmaking, while acknowledging courts’ duty to prevent injustice in the interim.

Criticisms and concerns 🔗

Despite its achievements, judicial activism faces legitimate criticism. The practice can disturb the delicate principle of separation of powers and checks and balances, leading to tensions between the judiciary and other government branches.

Critics argue that activist judges sometimes allow personal biases to influence decisions rather than strictly applying legal principles. The line between necessary intervention and judicial adventurism can blur when courts venture into administrative domains without adequate expertise.

The original promise of PIL from the 1980s has devolved into a confused jurisprudence, with courts struggling to distinguish genuine public interest cases from publicity-seeking or vested-interest litigation. Data shows that over 920,000 PILs were filed between 1985 and 2020, with the Court receiving an average of over 25,000 PILs annually.

The Supreme Court itself has acknowledged problems, observing that PIL has become prone to misuse by busybodies and individuals with private motives masquerading as public interest advocates.

Judicial activism as a democratic safeguard 🔗

Ultimately, judicial activism in India represents the judiciary’s response to institutional failures that threatened constitutional values. By expanding access to justice, protecting vulnerable populations, and holding government accountable, activist courts have reinforced democratic governance.

The practice works best when balanced with judicial restraint, as former Chief Justice A.S. Anand noted when emphasizing that judges must exercise self-discipline to prevent activism from becoming adventurism. The challenge lies in maintaining this balance while fulfilling the constitutional duty to protect fundamental rights.

Through mechanisms like PIL and expansive constitutional interpretation, Indian courts have demonstrated that an active judiciary can serve as society’s conscience, pushing for progressive change while respecting democratic boundaries. The success of this approach depends on judges’ wisdom in knowing when to intervene and when to defer to other branches of government.

What do you think? Has judicial activism in India struck the right balance between protecting rights and respecting democratic boundaries? Should courts continue to fill legislative gaps, or does this undermine the separation of powers essential to democracy?

References

1. https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/judicial-activism
2. https://blog.ipleaders.in/judicial-activism/
3. https://digitalcommons.law.buffalo.edu/book_sections/465/
4. https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
5. http://www.clarkcunningham.org/PIL-India.html
6. https://en.wikipedia.org/wiki/Vishakha_and_others_v._State_of_Rajasthan
7. https://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-2B84EFE0ABCA.pdf
8. https://www.scobserver.in/75-years-of-sc/what-a-jagged-little-pil-the-peoples-court-at-75/
9. https://www.scobserver.in/journal/on-an-average-the-court-receives-over-25000-pils-a-year/