Judicial Activism- As A Watershed Justice In India


Justice P.N Bhagwati, the founding father of Public Interest Litigation observed that “Greatness of the bench lies in the creativity of the judgement rendered by Courts in the case where a decision one way or the other will count for future, which will advance, retards sometimes much or sometimes less, but the development is always in the right direction. It is from these types of decisions from such cases where a judge leaps into the heart of legal darkness, where the lamps of precedents and common law principle flicker and fade, that the judges gets an opportunity to mould the law in its own way and give the shape and direction. This is what we have been trying to do in India.”

Today, in the world of science and technology the ambit and sphere of judicial activism has casted its light on each and every aspect of life which ranges from human rights issues to human rights development. Judicial activism means the power of the Court (Supreme Court and High Courts) to declare the law as unconstitutional and void on the ground if the laws enacted by the Parliament/legislature are inconsistent with the Part III of the Indian Constitution. Black Law dictionary defines “Judicial Activism” in the following words, “it is the philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors to guide their decision.” The term judicial activism means the dynamic, innovative and law making role of the court in which court playa positive role exhibiting the term which is called “Judicial Activism”. The most remarkable and significant feature of the Indian Constitution is that it deals with the separation of powers. The concept of separation of power was propounded by the French Jurist Montesquieu. The concept of judicial activism in India can be witnessed with reference of review of powers of Supreme Court of India and various other High Courts under Article 32 and Article 226 of the Indian Constitution.  There are two models of judicial review. One model is the one in which judge act merely as technocrats and holds a law/act invalid on the ground if such act is ultravires or infringes the rights prescribed in Part III of the Indian Constitution. Whereas the second model of judicial review deals with the power of the court to interpret the provision of the Constitution in the light so that the spirit of the constitution keeps intact. A court giving a new interpretation to the provision of the act to suit the changes as per social and economic conditions or expanding the ambit of individual rights is said to the activist court. The term “Judicial Activism” came into the existence in the 20th Century in order to describe the act of the legislation i.e. Judges making positive law (Judicial Legislation). Although the underlying debate of Judicial Activism continued since the days of Bentham and Blackstone. The brief study of India reveals that a slight glimpse of judicial activism and judicial review were there in the Pre Independence era, in various judgement of the Privy Council which had the jurisdiction to review the decision of Company’s Court established in India. In the case of Emperor v. Sibnath Banerjee[1] the Privy Council held that the court can investigate the validity of orders passed under Section59(2) of the Government of India Act 1935. In the another case of High Commissioner for India v. I.M. Hall[2] the Privy Council incorporated the principles of reasonable opportunity of being heard within the meaning of Section 240 (3) of Government of India Act 1935.

Examples Of Judicial Activism In India

The concept of Judicial Activism that is followed in India is much wider and broader to the concept of Judicial Activism that is being followed in the United States of America. The probable justification of such wider powers is the constitutional scheme envisaged by the grundnorm of the land. Thus, apart from exercising the power of Judicial Activism, the court is under obligation to exercise even wider power. The court can exercise the power to do anything to render the concept of complete justice. The court has assumed itself the power to determine the validity of the Constitutional Amendment rendered by Article 368 of the Indian Constitution in the aftermath of Keshavanand Bharathi v. State of Kerala[3]. Probably no court in the world can exercise such power and this can be cited to be one of the best examples of judicial activism. At its very outset it becomes difficult to have or predict any definite pattern of the Court to have the power of Judicial Activism. It has been rightly opined by Rajeev Dhawan that “Court has been mechanical in its approach to the problem in which it has been called upon to adjudicate.[4]

In Keshvanand Bharati v. State of Kerala[5] popularly known as the Fundamental Right’s Case in which 13 Judge Bench dealt with the Constitutionality and validity of 24th and 25th Amendment Act 1971. The principle question before the Supreme Court in this case was whether the decision in the Golak Nath’s Case was to be upheld to be overruled. The Special Bench of the 13 judges unanimously upheld the constitutional validity of 24th Amendment Act, 1971 and in doing so overruled its prior decision in Golak Nath’s case and cleared the way of upholding the validity of other Constitution Amendment Act which was questioned before the special bench in the writ petition. It is pertinent to observe that the court does not define what constitutes the basic structure of the Indian Constitution. Instead of that, they illustrate the basic structure embodied under the Indian Constitution. They include

  1. Supremacy of the Constitution
  2. Republican and democratic form of the Government
  3. Secular Character of the Constitution
  4. Separation of powers between Legislature, Executive and Judiciary
  5. Federal Character of the Constitution
  6. Fundamental freedoms
  7. Sovereignty of India
  8. Mandate to build welfare State
  9. Fundamental Rights Under Part III of the Indian Constitution

The list mentioned above is illustrative and not exhaustive. What is unique in this context is the fact that there was no uniformity and unanimity in describing the essential and basic features of the Indian Constitution.

Right to life and personal liberty is one of the most important fundamental rights guaranteed under Article 21 of the Indian Constitution. The Supreme Court has been entrusted with the task of interpretation of various other facets under Article 21 of the Indian Constitution which read as follow:

“No person shall be deprived of his life or personal liberty except according to the procedure established by the law”

The Supreme Court of India has widened the scope of Article 21 of the Indian Constitution through various judgements delivered by the court. The case of A.K. Gopalan v. State of Madras[6] was the first case decided by the Supreme Court involving the interpretation of right to life and personal liberty guaranteed under Article 21 of the Indian Constitution and the apex court was called upon to determine the constitutional validity of Preventive Detention Act, 1950. The court held that the Constitution has in Article 21 used the word personal liberty which has a definite connotation in law and that the personal liberty stating that it means a personal right not to be subjected to imprisonment, detention, arrest or other physical coercion in any manner that does not admit of legal justification.

The meaning of Personal Liberty came up pointedly for consideration in the case of Kharak Singh v. State of Uttar Pradesh[7] Supreme Court held that “Personal Liberty” used in Article 21 of the Indian Constitution is used as a compendious term to include within itself all the varieties of rights which go to make up the personal liberty of the individual other than those dealt within the several clauses of Article 19(1). It was also further observed by the Supreme Court that the word life in Article 21 means not merely the right of continuance of a person’s animal existence but a right to the possession of each of his organ- his arms his legs etc. and any intrusion into person’s home and the disturbance caused to him is violative of Article 21 of the Indian Constitution.

In the case of Satwant Singh v. A.P.O New Delhi[8] the Constitution bench of the Supreme Court held that liberty under Article 21 of the Indian Constitution bears the same comprehensive meaning as is given to the expression “Liberty by the 5th and 14th Amendment to the United States Constitution and the expression personal Liberty in Article 21 only excludes the ingredients of liberty enshrined under Article 19 of the Indian Constitution.

In the case of Maneka Gandhi v. Union of India[9] which is also known as water shed in the Indian Judicial Activism is one of the judgements which revolutionised the interpretation of Article 21 which guarantees the right to life and personal liberty. In Minerva Mills limited v. Union of India[10], the Supreme Court of India has highlighted the position of Part IV of the Indian Constitution and observed that “The Constitution is founded on the bedrock of the balance between Part III and Part IV of the Indian Constitution. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between the Fundamental rights and directive Principles of State Policy is an essential feature of the basic structure of the Constitution.


Recently the country has seen the beneficial judicial activism to a greater extent. Starting from the case of Indian Young Lawyer Association & Ors. V. State of Kerala & Ors.[11], Joseph Shine v Union of India[12], Justice K.S Puttaswamy (Retd.) & Anr. V. Union of India[13], Navtej Singh Johar and Ors. V. Union of India[14] and Atiya Sabri v. Union of India[15] are the aspects of Judicial Activism of the recent times. It cannot be disputed that Judicial activism had done a lot to ameliorate the conditions of the masses of the country. It has set a number of rights and wrongs committed by the states on their individual. The common masses are very often denied the protection of law due to the delayed functioning of the courts also called judicial inertia and judicial tardiness. Judicial activism has started the process to remove these occasional aberrations too. This furthered can only be done by honest and hardworking aspirants who can really understand the true meaning of law. The greatest asset and the strongest weapon in the armoury of the Judiciary is the confidence by which it commands and the faith which it imbibes in the minds of the people in its capacity to do even handed justice and keep the scales in balance of any dispute. The Chief Justice of India Justice Adarsh Sen Anand realized that the real source of the strength of the Judiciary lies in the public confidence in it and judges have to ensure that this confidence is not to be lost. Justice J. S Verma refereed Judicial Activism as a sharp edged tool which has to be used as a scalpel by a skilful surgeon to cure the malady. Thus, the socio economic movement generated by the court through Judicial Activism has to keep alive and this in return will alive the hope of the people for justice and thus has weaned people away from self help or seeking justice through a private system of justice. Therefore for a democratic country the instrument like “Judicial Activism” is necessary to sustain the democratic system and establishment of rule of law in the society. Therefore, one has to be both adventurous and cautious in respect and judiciary has to keep on learning mostly by experience.

[1] A.I.R. (32) 1945 P.C 156, p. 161

[2] A.I.R. (35) 1948 P.C 121

[3] A.I.R. 1973 S.C. 1461.

[4] Rajeev Dhawan, “The Supreme Court of India –A Socio-Legal Critique of its juristic, Techniques” (Bombay, 1977) p.421.

[5] Supra Note 12.

[6] A.I.R 1950 S.C. 27.

[7] A.I.R 1963 S.C. 1295

[8] A.I.R 1967 S.C. 1836.

[9] A.I.R 1978 S.C 597.

[10] Minerva Mills Ltd. v Union of India, A.I.R. 1980 S.C. 1789.

[11] W.P (civil) 373 of 2006.

[12] W.P (criminal) no. 194 of 2017).

[13] W.P No. 494 of 2012.

[14] W.P (Criminal) No. 76 of 2016.

[15] W.P (Criminal) No. 43 of 2017.

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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