Growth of judicial activism


Stating that judicial activism must not be confused with judicial overreach and adventurism Kamayani Bali Mahabal says, the apex court cannot usurp the powers of legislature, but only balance the deficiencies in law by giving it a new interpretation.

Judicial activism is that legal process by which relief is provided to the disadvantaged and aggrieved party. Thus where there is a gap in the legislation or the law is silent on a specific point and prompt redress is needed, the judiciary exercises its inherent powers by virtue of being a custodian and watchdog of the Constitution.

Categories of judicial activism

Broadly speaking, judicial activism falls into two categories. The first consists of evolving new principles, new concepts, new maxims, new formulate, new relief going beyond and sometimes even alien to the hitherto known and evolved jurisprudence and substantive and procedural law.

The second extends to laying down priorities, policies and programmes and giving directions to execute them when they are not obligatory, and are entirely in the direction of the executive and the legislature or other authorities, and thereby usurping their function, power and wisdom; to taking over detailed administration of a policy, scheme or programme even if they are obligatory instead of monitoring their performance; giving directions to execute a plan or a policy in a particular manner when equally good or better alternatives are available; preventing implementation of schemes and projects on grounds unsupported by and unverified with the expert knowledge; interfering with the working of the independent autonomous bodies by meddling with their decisions for no reasons other than their alleged impropriety; foisting the court’s choices, directing enactment of laws when they are at best directory; interpreting the Constitution and statutes contrary to their language and original intention, or by going beyond their accepted and well established and understood meaning, so on and so forth.

Role of the Supreme Court

Judicial activism in India can be witnessed with reference to the review power of the Supreme Court of India under Article 32 (can appeal in the Supreme Court) and under Article 226 (can appeal in the respective High Court) of the Constitution particularly in Public Interest Litigation. The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, antidiscrimination measures and the regulation of prison conditions among others.

The Supreme Court has expanded the frontiers of fundamental rights and of natural justice. In the process it has rewritten some parts of the Constitution. The right to life and personal liberty and the procedure established by law has been converted de facto and de jure into a procedural due process clause contrary to the intent of the makers of the Constitution.

This expanding right has encompassed, within itself, the right to bail, the right to a speedy trial, immunity against cruel and unusual punishment, the right to dignified treatment in custodial institutions, the right to legal aid in criminal proceedings and above all the right to live with basic human dignity. The Supreme Court has developed a new normative regime of rights and insisted that a state cannot act arbitrarily but must act reasonably and in public interest on pain of its action being invalidated by judicial intervention. The Supreme Court has evolved a strategy of public interest litigation and made it possible for the problems of the disadvantaged to be brought before the courts.

Landmark judgments by SC

The guidelines laid down by the Supreme Court with respect to procedure of arrests in the celebrated case of D K Basu Vs State of West Bengal saw passing of The Code of Criminal Procedure (Amendment) Bill, in 2008 which amended Sec 41 Cr.Pc. The amended section has, now, put fetters on the power of police to arrest the accused persons involved in offences punishable with imprisonment up to seven years.

Similarly, the guidelines laid down by the apex court in Vishakha case with respect to sexual harassment of women at workplace was incorporated into The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Vineet Narain Case which exposed the Jain Hawala Scandal and failure of CBI to get high profile people accused in the case prosecuted, the Supreme Court made directions that included supervision of the CBI by the Central Vigilance Commission.

Thus, the directions issued by the Supreme Court, fill the vacuum until the legislature enacts substantive law. The law creating power of judges should not be narrowly interpreted. The apex court has become a symbol of hope for the people who do not understand the technicalities of law and yearn only for justice. It is essential for the court to exercise the power of judicial creativity in order to save our democracy from being subverted. However, judicial activism must not be confused with judicial overreach and adventurism, the apex court cannot usurp the powers of legislature and it can only balance the deficiencies in law by giving it a new interpretation.

Face of activism in India

The progressive judicial activism is the result of complex interaction effects: textual precedent, creative judicial agency, constitutional design, radical social upsurges, strategic concessions by the executive, and the fragmentation of power in the wider political arena. The move by India’s Supreme Court over the last three decades to make various socioeconomic entitlements in the Constitution justiciable through its substantive reinterpretations and the innovation of public interest litigation has been enormously valuable. This move has highlighted the severe human deprivations that still afflict millions of citizens in the world’s largest democracy, and seeks to protect many of them in individual judicial cases.

Significantly, the apex judiciary has also challenged the declining norms of the political class and the failure of the state to discharge many of its basic governance functions, especially since the early 1990s. By highlighting the nexus between socio-economic rights violations and poor governance, the higher judiciary in India has emerged as the defender of a normative and homogenous civil society of equal citizens, allaying the fear that non-elected public institutions would increasingly become the abode of privileged social classes in the wake of increasing electoral participation by historically subordinate groups.

Delivering justice is not a mechanical procedure; it is rather a dynamic process. Each case differs from the other. The creation of justice implies and involves every time a fresh application of mind, interaction with the parties and their lawyers, appreciation of the oral and documentary evidence against the particular background of each dispute, of the arguments advanced and the relief sought. The judges are required to be live partners in the process of justice and to respond creatively in each case. Creativity and innovation amongst the judiciary are as necessary as impartiality and
independence. The judges are not expected to be mere mechanics and masons. They are required to be designers and architects. So long as their innovations are within the bounds of their jurisdiction and are designed to advance the cause of justice, and do not violate the legal norms, however unorthodox and unprecedented they may be, the innovations have to be welcome as accreditations to the legal armoury to preserve and promote justice which should be the object of the any legal and judicial system.


Kamayani Bali Mahabal

The writer is an expert in gender, health and human rights issues.