The judicial system of any nation plays an important role in upholding and promoting the rights of the citizens. In India, it is an independent body that is unbiased and works within the limit of the Constitution. It interprets the Constitution and strikes down any that is not in conformity with it. The Supreme Court of India is the highest judicial authority in the country and protects the Fundamental Rights of the citizens. Judicial activism is an approach to the power of judicial review, where the judge is concerned with the constitutional issues in a particular case.
The term “Judicial Activism” can have different meanings, but usually, it connotes the philosophy behind delivering a particular decision. Black’s Law Dictionary defines judicial activism as a theory of judicial decision-making through which judges attach their personal opinions on public policy, among other aspects, to direct their decisions.
Judicial activism is a term associated with the reasoning and prudence of the judges over political or personal issues, instead of the issue at hand. It denotes the revision of a judgement of an inferior court by a superior court, or judicial review of judicial actions. On the other hand, judicial review of legislative or executive actions more often than not draws controversy since it is stronger and more vocal.
Origin and Development of Judicial Activism
The concept of judicial activism originated in the United States when Arthur Schlesinger Jr. introduced the term in 1947, in an article in Fortune Magazine. Even before the term could actually be named, the concept already existed, and had been controversial ever since. In the U.S., judicial review of legislation was popular in terms of American constitutional law. Even though the American constitution does not call for striking down of a law by the Supreme Court in case it is violative of the same, Chief Justice Marshall, in Marbury v. Madison, held that such power was implied, ultimately getting criticized. In India, it came to light much later, because for a long time, the Indian judiciary stuck to their orthodox approach towards the concept. After independence, the tussle between the two organs of the State, the executive and the judiciary, brought forth the concept, thereby giving it momentum.
The first decade following independence was absent in judicial action. The Supreme Court examined the Constitution of India between the 1950s and the 1970s, leading to the first few cases ever to come up where judicial activism was exercised in India, such as those of Hussainara Khatoon v. State of Bihar, Olga Telis v. Bombay Municipal Corporation, M. C. Mehta v. Union of India, etc. An earlier case of Golak Nath v. State of Punjab had also sparked some debate, where the Supreme Court held that the constitutional rights mentioned under Part III of the Constitution of India could not be modified. The decision of Golak Nath was however, overruled by the Supreme Court, in Kesavananda Bharati v. State of Kerala, but it maintained that the constitutional framework regarding Part III of the Indian Constitution could not be changed.
Judicial activism can be three-fold in India:
- The superior courts in India have the power to declare any act, law, or statute as unconstitutional, if it goes against the basic structure of the Constitution.
- Any previous decision of any court, can be overruled by a court subsequently, if it is felt that the previous judgement was violative of the Constitution in any way.
- The superior courts also have the power of reading and interpreting the Constitution, and ascertaining the meaning of the same, in order to facilitate the formulation of laws and policies.
The judiciary has been kept independent of the other two organs of the State, which implies that it is under no obligation from either the legislature or the executive, and can declare a law as void and unconstitutional. The power of judicial review, granted to the Supreme Court of India under Article 32 of the Constitution, and to the high courts under Article 226, is immense and cannot be abridged or taken away by the Parliament.
Present Trends of Judicial Activism in India
The courts today are no more passive. Merely declaring a law as void or striking it down does not fill the gap anymore. Instead, courts have taken a more affirmative approach, where they issue orders and decrees which direct remedial actions. According to an Indian citizen, the executive and the legislature have failed in their duties towards the public, and thus, are made accountable for their actions by the judiciary. It is felt that the administration has become so dispirited that the people have no option but to knock the gates of courts for redressal of their grievances. The inclination and trust towards judiciary has further strengthened because of Public Interest Litigation, or PIL, granting access to have-nots and the disadvantaged groups. The introduction of PIL in 1977 and the post-emergency period marked a new age in judicial activism in India, with several cases of violation of fundamental rights were registered, but the courts have still kept a low profile, in order to avoid clashes between the different organs of the State.
Criticism of Judicial Activism in India
Indeed, such an extensive power of the judiciary draws criticism generally, and it no doubt maintains a check on the judiciary itself, but the courts themselves are well aware of their limitations. The Supreme Court, in P. Ramachandran Rao v. State of Karnataka, observed that the Court did not consider itself as an ‘imperium in imperio’, or that it would function as a despotic organ of the State. Even the Indian Constitution does not mandate a rigid separation between the different organs or powers of the state, namely, the legislature, executive and judiciary, but defines their powers and limits. This was taken into account by the Supreme Court in State of Kerala v. A. Lakshmi Kutty, wherein it held that it was the responsibility of the judges to not encroach upon the powers of the other organs of the state and stay well within their limits.
Of course, judges cannot be legislators; they cannot be allowed to perform the role of the administration because neither do they have the required wisdom nor the permission of the Constitution to do so. It often happens that while interpreting the Constitution, the judiciary may rewrite or change the meaning of a provision entirely, which then go on to become permanent in the form of legal principles. Any field left open and unoccupied by the legislature may be touched by the judiciary, but the definite areas should not be entrenched upon. The line is fine but it does exist.
Exercise of excess power by the judiciary will not bear good results for a democracy, primarily because the judiciary is not accountable to the general public in the manner the legislature or executive is. The actions of the legislature and the executive, however, are subject to scrutiny and judicial review when there is injustice – social, political or economic – or violation of the provisions of the Constitution. The independence of the judiciary is a power in itself, which can be seen from the fact that when the legislature makes laws in contrary to the Constitution, the judiciary has the power to examine it, but if a judge or a bench exceeds its power, only a larger bench of the judiciary can intervene in the matter. Even the removal of judges is a difficult task, which is through impeachment.
But it must be kept in mind that the activism of the judiciary or judicial activism is a need in a country like India, where the citizens have lost all hopes from the rulers. Judicial activism is also important because sometimes, there comes a case where people are keen to know the stance of the judiciary, and at what level is justice put in the hierarchy of power. Such a case, if decided judiciously, opens new doors and windows for future decisions and laws. Judicial creativity should be promoted, but its limits should be defined.
 5 U.S. (1 (Cranch) 137 (1803).
 1979 AIR 1369.
 AIR 1980 SC 180.
 (1987) 4 SCC 463.
 1967 AIR 1643.
 (1973) 4 SCC 225.
 (1997) 6 SCC 241.
 (2002) 4 SCC 578.
 (1986) 4SCC 632.
 Supra note 9.