A judicial ideology known as “judicial activism” maintains that judges have the authority and duty to evaluate the wider social ramifications of their rulings in addition to the relevant legislation. The term “judicial activism” describes the judiciary’s interpretation and application of the law, which frequently goes beyond the conventional bounds of judicial restraint. This idea has generated a lot of discussion, especially in nations like the US and India that have a long history of judicial independence. When judges are perceived as going beyond just applying the law as written to establishing new standards or changing preexisting ones —often in reaction to changing societal demands— judicial activism takes root. It is occasionally employed as the opposite of judicial restraint.[1]
The phrase often suggests that judges rely on decisions more on their personal opinions than on prior decisions.[2] Contentious political concerns surround the notion of judicial activism and the particular rulings that fall under this category. Judicial activism and the interpretation of statutes, as well as the division of powers, are closely connected topics. Judicial activism is the term used to describe the judiciary’s proactive involvement in interpreting and changing the law, especially when it comes to constitutional issues. Judicial activism in India has greatly influenced the creation of constitutional laws. The judiciary, particularly the Indian Supreme Court, has taken an active role in interpreting the Constitution to uphold justice and increase rights.[3]
The ideas of judicial restraint and judicial activity are crucial in determining how the court interprets the law and upholds justice in the field of jurisprudence. As the highest court in India, the Supreme Court is frequently at the center of discussions pertaining to these principles[4]. The supreme court has the broadest authority to protect citizens’ constitutional rights, so there is no reason why it shouldn’t take an activist stance akin to American courts and give state governments directives that may entail taking proactive measures to ensure the fundamental right’s enforcement.
In January 1947, Arthur Schlesinger Jr. used the phrase “judicial activism” in an article titled “The Supreme Court: 1947” in Fortune magazine.[5] Ever since its inception, the term has generated controversy.Schlesinger’s original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad, according to Craig Green’s article, “An Intellectual History of Judicial Activism,” which critiques Schlesinger’s use of the term.[6] The general idea was known even before this phrase was coined. Thomas Jefferson, for instance, made reference to the Federalist federal judge’s “despotic behavior”,specifically mentioning Chief Justice John Marshall.[7]
HISTORY OF JUDICIAL ACTIVISM IN INDIA
Ideological disagreements between the government and legislative on the one hand, and the judiciary on the other, emerged out of sincere concern for the welfare of the people, as is the case in the United States and the United Kingdom. As opposed to executive excesses or zeal beyond the law, judicial activism or overreach stems from the coexistence of a conservative judiciary and a progressive Parliament, or from a conservative administration and a progressive judiciary.[8]
The fascinating history of judicial activism in India reflects the dynamic interplay between the legislative, executive, and judicial branches of government. It shows how the Indian judiciary, particularly the Supreme Court, has consistently adopted a more assertive stance in interpreting and applying the law in order to uphold the rights of citizens and advance justice. A pivotal point in the development of India’s legal and political environment occurred during the pre-independence era of judicial activism. The court was instrumental in opposing colonial tyranny, defending fundamental rights, and creating the framework for constitutional government throughout this time. The Ilbert Bill debate, also known as R v. Secretary of State for India, is a prominent instance of judicial activism in this era.[9] The Ilbert Bill, proposed in 1883 by the British colonial administration, aimed to give Indian courts the authority to hear cases involving defendants from Europe. The law was fiercely opposed by European settlers, meanwhile, who feared losing their sense of superiority. Indian judges responded by speaking out against the discriminatory actions of the colonial government and promoting equality before the law, most notably Justice Romesh Chunder Mitter.
Furthermore, the pre-independence court was essential to the advancement of fundamental rights and civil freedoms.The Indian court exercised judicial restraint in the early years after independence, adhering to precise legal interpretations and showing deference to other institutions of government. The judicial branch adhered to legislative sovereignty and the separation of powers with a conservative stance.Interpreting laws was the judiciary’s main duty from the 1950s through the 1960s. “The Supreme Court evolved to challenge legislative and executive slowness and inefficiencies” throughout the 1970s.[10] The Indian judiciary started to step in under the pretext of judicial engagement in an attempt to curb the authoritarian mentality in both the legislative and executive branches of government. The Supreme Court of India established the foundation for judicial review and the defense of individual rights by stating its jurisdiction to examine legislation and governmental acts in instances such as A.K. Gopalan v. State of Madras (1950)[11]. In the same vein, the judiciary showed a dedication to freedom of speech and expression in decisions like Romesh Thappar v. State of Madras (1950)[12], overturning censorship laws and defending democratic government values.
During India’s emergency, the government tried to exert control over the courts. Thus, the courts developed public interest litigation as a tool to engage the public directly and grant recognition even in cases when the plaintiff may not be the victim. The courts are able to take up these cases on their own thanks to “suo motu” cognizance.
Mrs Gandhi viewed the Supreme Court of India’s ruling in the Privy Purse abolition and bank nationalisation cases as judicial overreach, and her response was both forceful and clear-cut. The conservative and senior Supreme Court justices who took part in the majority ruling in the aforementioned instances are said to have been recommended for nomination to the position of Chief Justice of India on the suggestion of Mr. Kumaramangalam. The dissenting judge, Mr A N Ray, who was fourth in the line of seniority, was appointed, and this resulted in the resignation of the three senior judges (Justices Hegde, Shelat and Grover). This marked the starting point of the theory of judicial activism that actually resulted from the stand-off between the executive and the judiciary.
During the emergency, “Justices V.R. Krishna Iyer and P.N. Bhagwati sowed the seeds of judicial activism. A new phenomena known as Public Interest Litigation (PIL) emerged, expanding the judiciary’s role in public affairs. Justice Iyer stated, “Law is a social auditor, and only someone with the public interest can ignite this.”[13] The emergency led to many landmark judgements which evolved the future of Judicial Activism in India and the development of various important matters which became an important turning point in Indian Constitutional Law.
CONSTITUTIONAL BASIS FOR JUDICIAL ACTIVISM
Judicial activism and judicial review frequently go hand in hand, with the former providing the latter’s constitutional foundation. While judicial activism is a more discretionary approach where judges actively impact public policy by interpreting laws widely, judicial review is the judiciary’s power to interpret laws and establish their constitutionality. Judicial activism and judicial review are closely related; judicial activism is the proactive use of judicial power to solve larger societal challenges, while judicial review provides the constitutional foundation for the judiciary’s engagement. Historical examples like Kesavananda Bharati, Maneka Gandhi, and Vishaka show how judicial activism can develop from judicial review to safeguard basic rights, close gaps in the law, and maintain justice. By use of these procedures, the Indian court maintains its vital role in maintaining constitutional principles and adapting to the evolving requirements of society.
The Indian Constitution grants the higher judiciary the authority of judicial review through Article 13 as well as Articles 226 and 32. This implies that whenever an executive, legislative, or administrative action contravenes the Constitution, the judiciary has the authority to declare it null and void. The authority of judicial review was reaffirmed in L. Chandra Kumar v. Union of India (1997)[14] as a fundamental aspect of the Constitution that cannot be limited by constitutional amendment. Everybody has the right to directly file a complaint with the Supreme Court of India to seek the enforcement of their fundamental rights, according to Article 32 of the Indian Constitution. The Supreme Court may issue an order or writ to enforce any basic right guaranteed by Article 32. In Fertilizer Corporation Kamgar Union v. Union of India (1981)[15], the Supreme Court ruled that “it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated”. This ruling established the Supreme Court’s authority under Article 32 as a key component of the Indian Constitution’s fundamental framework. The Indian Constitution’s Article 226 gives High Courts the authority to issue any necessary writ or order to enforce other legal rights, including fundamental rights.
Furthermore, under Article 136 of the Indian Constitution, the Supreme Court may grant special permission to appeal any judgment, decree, conclusion, sentence, or order rendered by any court or tribunal in any cause or case. The Supreme Court exercises its special power when there has been serious injustice or when there is a big legal dispute. Article 136 grants discretionary authority, which can be used to decide a case in a way that aligns with justice, equity, and good conscience. It must, however, be used cautiously and carefully. The Supreme Court held in Pritam Singh v.The State (1950)[16] that Article 136 extensive discretionary power should only be exercised in extraordinary situations. In addition, during the debate over whether an aggrieved party has any claim to redress even after the Supreme Court’s final ruling, the Court developed the concept of the curative petition in the case of Rupa Ashok Hurra v. Ashok Hurra (2002)[17].
The most important clause regarding judicial activism is found in Article 142 of the Indian Constitution, which grants the Supreme Court the power to issue an order to guarantee full justice in the particular case. An example of such an order is the one rendered by the Supreme Court in M Siddiq (D) Thr Lrs v. Mahant Suresh Das and Ors (2019)[18], also known as the Ram Janmabhoomi/Babri Masjid case. The Supreme Court upheld the finding of the Allahabad High Court (2010) in line with Article 142 of the Indian constitution. Although the primary jurisdiction to legislate legislation remains with the Parliament of India, the Supreme Court of India is empowered to do so under Article 142 of the Indian Constitution. Note that this article can be invoked when there is a gap in the law or where the order is in the public interest. The order will remain in effect until Parliament introduces legislation to remedy the issue.
LANDMARK JUDGEMENTS WHICH ROSE JUDICIAL ACTIVITIES IN ESTABLISHING INDIA’S CONSTITUTIONAL LAW
Judicial activism in India has played a crucial role in the evolution, and interpretation of the Constitution, ensuring that it adapts to changing societal needs and protects fundamental rights. Landmark judgments by the Supreme Court have not only interpreted constitutional provisions but have also sometimes necessitated constitutional amendments, thereby shaping India’s constitutional law. These judgments have addressed a wide array of issues, from fundamental rights and the balance of power between different branches of government to social justice and individual liberties.
In Golaknath Nath v. State of Punjab (1967)[19]after the Supreme Court ruled that Parliament could not change the fundamental rights enshrined in the Constitution, the 24th Amendment was created, which made it clear that Parliament could change any part of the Constitution, including the fundamental rights. It also added Article 13(4) and Article 368(3) to support Parliament’s amendment authority and made sure that changes to the Constitution could not be contested on the grounds that they violated fundamental rights. R. C. Cooper v. Union of India (1970)[20]the 25th Amendment was created as a result of the Supreme Court overturning many sections of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 that dealt with compensation for nationalizing banks. The phrase “compensation” in Article 31(2) was amended to “amount,” so giving the state the authority to set the amount for property purchase.The addition of Article 31C guards against challenges to laws passed to carry out the Directive Principles of State policy on the grounds that they violate fundamental rights.
In Kesavananda Bharati v. State of Kerala (1973)[21] the ruling established the Basic Structure Doctrine, which restricts the ability of Parliament to change the Constitution. The 42nd Amendment, which attempted to reinforce Parliament’s amending authority in response, was ultimately limited by a later judicial review,introduced which Articles 368(4) and (5), which said that no court could question changes. Added protection to all legislation by amending Article 31C. In Minerva Mills Ltd. v. Union of India (1980)[22], the 44th Amendment was created to maintain the proper balance between fundamental rights and Directive Principles after the Supreme Court invalidated portions of the 42nd Amendment that were in conflict with the Basic Structure Doctrine, removed Articles 368(4) and (5), restoring judicial review and the importance of fundamental rights. Article 31C was changed to shield laws that only pertain to Articles 39(b) and (c) from challenges alleging that they violate basic rights. In N. M. Thomas v. State of Kerala (1976)[23] healed modification resulted from the Supreme Court’s emphasis on the value of cooperative societies for economic democracy.The Constitution was amended to include Part IXB, which deals with the establishment, management, and dissolution of cooperative groups.Article 43B was included to encourage cooperative societies’ voluntary creation, independent operation, democratic governance, and expert management.
Later in Kihoto Hollohan v. Zachillhu (1992)[24], the Supreme Court permitted judicial review of the Speaker’s decision while maintaining the anti-defection law’s constitutionality. The anti-defection statute now has more precise provisions as a result of this ruling. The Tenth Schedule, which allows for members to be disqualified for defection, was added to the Constitution. It gave the Speaker or Chairman of the House the authority to make decisions on disqualification. Also in Unni Krishnan, J.P. v. State of Andhra Pradesh (1993)[25] the 86th Amendment, which established education as a fundamental right, resulted from the Supreme Court’s recognition of the right to education as a fundamental right under Article 21. Inserted Article 21A, which mandates that all children between the ages of six and fourteen get free education.Changed Article 45 to concentrate on early childhood education and care for kids under six. Included is a basic obligation under Article 51A(k) for parents or guardians to give their children, ages 6 to 14, access to education. In S. R. Bommai v. Union of India (1994)[26] the Supreme Court outlined the limitations of the President’s power under Article 356 to dismiss state governments, stating that such decisions are subject to judicial review.It curbed the misuse of Article 356 and reinforced the federal structure of the Constitution.
ARGUMENTS FOR AND AGAINST JUDICIAL ACTIVISIM
ARGUMENTS FOR
- Since judicial activism ensures that justice is not compromised by inaction on the part of the legislature or the executive branch, it is essential in defending the rights of citizens, particularly those from marginalized populations.It gives the judge the ability to interpret fundamental rights more broadly and modify them to take into account current events and societal shifts. In K.S. Puttaswamy v. Union of India (2017),[27] for example, the right to privacy was acknowledged, and this broadened the application of Article 21 (Right to Life and Personal Liberty).
- By keeping the legislature and the executive branch from acting arbitrarily or in violation of the constitution, judicial activism serves as a check on their authority. This equilibrium guarantees that no one branch of government gains excessive authority.Courts can preserve the rule of law and democratic ideals by using judicial review to declare unconstitutional laws and executive actions.
- Judicial activism can fill in the blanks and offer urgent remedies when the legislative ignores crucial concerns or takes too long to respond. This is especially crucial when there are pressing issues pertaining to human rights.It ensures that government actions are in line with constitutional values by holding the executive branch responsible for its policies and actions.
ARGUMENTS AGAINST
- Those who oppose judicial activity argue that activist judges violate their constitutionally granted authority by writing laws rather than interpreting them. They argue that the question of whether the courts should become involved in social concerns is more important than how they should be handled. Judicial activism critics contend that the courts are assuming duties that belong exclusively to the legislative and executive branches of government by deciding how to run prisons and schools.
2. Judicial activism critics contend that judges are incapable of handling complicated responsibilities like running jails, overseeing schools, and selecting employees for businesses. Judges are legal professionals, not social workers.
3. The fundamental principles of federalism and the division of powers are used by those who reject judicial activity as justification for judicial restraint. justifications for judicial activism. Judicial activism proponents contend that justice must be served in order to significantly improve society.
CONCLUSION
Judicial activism has had a major and revolutionary effect on India’s Constitution. Through proactive constitutional interpretation and safeguarding of fundamental rights, the court has fortified the democratic foundation and advanced fairness and impartiality. Although judicial activism has occasionally been a topic of discussion, its significance in upholding a fair and responsive legal system is highlighted by its role in defending individual rights, preserving the integrity of the constitution, and addressing societal demands. The dynamic between constitutional amendments and judicial interpretation underscores the dynamic aspect of India’s changing constitutional law, which keeps it effective and relevant in addressing modern issues and defending democratic and just values.
[1] Christopher Wolfe, “ Judicial Activism: Bulwark of Freedom Or Precarious Security?” 33 (Rowman & Littlefield Publication,Inc, Maryland,USA, 1st Edition,1997)
[2] “judicial activism | Definition, Types, Examples, & Facts | Britannica”. www.britannica.com. Retrieved 25th July 2024,. It is not pejorative, and studies suggest that it does not have a consistent political valence.
[3] Mamta Devi, “The Role Of Judicial Activism In Shaping Constitutional Law Of India” 1 (Epra International Journal Of Multidisciplinary Research (IJMR)) https://doi.org/10.36713/Epra15921 ,Retrieved 25th July 2024
[4]Dr. Ss. Gopakumar, “Balancing Act: Exploring Judicial Activism and Restraint in Recent Supreme Court Cases”,https://law.dypvp.edu.in/blogs/balancing-act-exploring-judicial-activism-and-restraint-in-recent-supreme-court-cases Retrieved on 25th July 2024.
[5] Keenan D. Kmiec, “The Origin and Current Meanings of “Judicial Activism”” 1463 (California Law Review,California,Vol. 92, No. 5 (Oct., 2004)
[6]Green and Craig “An Intellectual History of Judicial Activism” 4 (Emory Law Journal, Vol. 58, No. 5,Philadelphia, Pennsylvania, 2009)
[7]Charles Grove Haines, “The Role of the Supreme Court in American Government and Politics 1789-1835”. 294 (University of California Press,London,England, 1944)
[8] R Shunmugasundaram, “Judicial Activism and Overreach in India” 25 (Core) https://core.ac.uk/download/pdf/112282.pdf,Retrieved 25th July 2024
[9] Saha and Ruchira. “The Ilbert Bill Controversy and the Making of the Colonial Indian Legal Profession.” 3 (Modern Asian Studies Cambridge 2013 )
[10] Mamta Devi, “The Role Of Judicial Activism In Shaping Constitutional Law Of India” 1 (Epra International Journal Of Multidisciplinary Research (IJMR)) https://doi.org/10.36713/Epra15921 ,Retrieved 25th July 2024
[11] A.K. Gopalan v. State of Madras, AIR 1950 SC 27
[12] Romesh Thappar v. State of Madras, AIR 1950 SC 124
[13] M.M. Semwal & Sunil Khosla, ‘Judicial Activism’ 69 ( International Journal of Postmodern Studies (TIJPS) (2008) ) < https://www.jstor.org/stable/41856396> accessed 22 July 2021
[14] L. Chandra Kumar v. Union of India,(1997) 3 SCC 261
[15] Fertilizer Corporation Kamgar Union v. Union of India, (2020) 8 SCC 255
[16] Pritam Singh v. The State, 1950 AIR 16
[17] Rupa Ashok Hurra v. Ashok Hurra, 2002 INSC 189.
[18] M Siddiq (D) Thr Lrs v. Mahant Suresh Das and Ors, (2019) 15 SCC 1.
[19] Golaknath Nath v. State of Punjab,1967 AIR 1643
[20] R.C. Cooper v. Union of Inida , AIR 1970 SC 564.
[21] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
[22] Minerva Mills Ltd. v. Union of India & Ors, AIR 1980 SC 1789
[23] N.M Thomas v. State of Kerala , AIR 1976 SC 490
[24] Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651
[25] Unni Krishna J.P. v.State of Andhra Pradesh , (1993) 1 SCC 645
[26] S.R. Bommai v.Union of India , AIR 1994 SC 1918
[27] K.S. Puttaswamy v. Union of India,(2017) 10 SCC 1
Author: Jiss Anthony
Juris Centre 