Law Making In India


At the heart of any system based on the concept of Rule of Law, there is a strong judicial system equipped with powers, financial resources, material and skills that are necessary to protect human rights within the framework of the concept of administering justice.”[1]

It is true beyond fact and doubts that role of judiciary in the modern world of science of technologies and with the changing time has marked significant shift from its traditional role to more participatory one in order to cater the needs of changing society. Apart from the traditional role, judiciary has also played a vital role to act as the final interpreter of the constitution and other organic law, protector and harbinger of the fundamental rights of the citizens and as a guardian to keep necessary checks upon the constitutional transgression by other organs of the state.[2]

Under the Constitutional scheme the role of judiciary has been amply endowed with enormous powers to carry out the function ranging from issuing of writs to the entertainment of petitions by special leave etc. Further new tools resulting from new inventions and innovation resulted in the broad expansion of such powers as a tool in the hands of the judiciary to carry out the objectives as manifested and embedded in the Preamble of the Indian Constitution. The origin and the concept of Public Interest Litigation its rhetoric journey clarifies the role being played by the courts nowadays. Looking at the parlance of the judicial behaviour from the last ten decades shows that how the Apex court of India has gone through different oscillation in dealing with different aspects of rights of the individual as well in its approach and conduct. Thus the changing phase of the judiciary from mere an activist in becoming the ‘super activist’ emphasised the true role being played by the judiciary. Such extension of power in the guise of being the super activist has also given a new philosophy to the judicial power by branding it with the title ‘Judicial Overreach’.


Justice P.N Bhagwati said that, “Greatness of the bench lies in the creativity of the judgement rendered by the courts in the case where he decision in one way or the other will count for the future which will advance, retards sometimes much or sometimes less but the development is always is in the right direction. It is from these decisions  and 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 trying to do in India.[3]

It cannot be disputed that Judicial Activism had done a lot to ameliorate the conditions of the masses of the country. It is the citizens who have been denied the protection of law and at times fundamental rights have been infringed. Thus by means of Judicial activism court have started process to remove the occasional aberrations too. Thus for the democratic country the instrument like judicial activism is necessary to sustain the democratic system and concept of rule of law. Therefore it has been rightly said that one should be both adventurous and cautious in such respect and judiciary has to keep learning mostly by experience.

[1] Report of Secretary General, “The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies”, October 12, 2011 A35.

[2] Union of India v. Raghubir Singh (1989) 2 S.C.C. 754 at 766.

[3] Divya Sharma, “Judicial Activism under Article 21”, Academike Articles on Legal Issues accessed on dated 10:00 AM (14th July 2019).

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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