Judicial Activism: An Impact on Government

Rupal Sinha


Judiciary has always played a major role in maintaining the proper governance of a country. Since the framing of the Constitution of India, all the three organs of the government have been assigned their respective roles. Judiciary has been given the power of being the foremost authority for inferring the laws made by the legislature, by liberally interpreting them with an open vision and unrestricted decision making. The basic purpose of the ‘independent judiciary’ is to protect the interests of the citizens. This endeavour of our constitution-makers has brought a sense of faith and assurance in people, as to have some authority for paying them relief. And thus, this activism has somehow resulted in the dominant role of the judiciary over the government. The administration works to provide benefits to themselves like an authoritative approach over the people’s welfare whereas the judiciary acts for the promotion of justice in the society. For instance, the declaration of ‘Emergency’ in India, from 1975 to 1977, was assumed as a state of helplessness to the people. On one hand, the government acts on the basis of the performance of law and on the other hand, the judiciary applies a practical understanding with adherence to law. This paper emphasizes on the impact of an active role of the judiciary on the government as the judicial activism concept assures the decisive power of the court with a reformist interpretation, conferring to the changing time and mind sets, which helps to maintain the law, as well as the ethical values of the society.


A country is called ‘democratic’ if there is supremacy of law instead of the authority of the administrators. Our constitution clearly states the differences between the three organs of the government i.e. the Legislative, the Executive and the Judiciary. The Constitution of India provides with the provisions, the powers and the functions that are premeditated for the protection of the Judiciary. Since 1950, our democracy has confronted many modifications over the years in the statues regarding the dominance over people’s welfare by the ruling parties on their various political issues and agendas, for personal benefits. The proclamation of the Emergency[1] under the prime ministership of Indira Gandhi due to her controversial state of affairs of political insecurity, is one of the examples. There was nothing in the name of justice and prosperity of the people of India as there was a sheer dominance of the parliament then. These acts, previously committed by the legislative authority, interfered with the functioning of the judiciary and thus it was made sine qua non for the country’s welfare. It was then, when the judiciary came into the picture with its powers laid by our Constitution makers. The independence of judiciary was secured by the constitution and the judicial interventions resulted in the birth of concepts like judicial activism, public interest litigation (PIL) etc. In the case of Shankari Prasad v. Union of India[2], it was clearly stated that the Parliament had absolute power to amend the Constitution, including the fundamental rights under Article 368 of the Constitution. In Golak Nath v. State of Punjab[3], the previous decision was reversed, saying that the power to amend the Constitution has limitations and fundamental rights cannot be altered in any way. Although it was overruled six years later, this case was the beginning of judicial activism in India. The Court continued saying that no institutional body could alter the democratic essence of the Constitution. But soon ex post facto the Twenty-fourth Amendment in 1971 was passed, that enabled the Parliament to change the fundamental rights. It amended Article 368 of the Constitution too, to provide clearly that the Parliament has the power to alter any provision of the Constitution by any procedure of addition or repeal. In Keshavananda Bharti v. State of Kerala[4], the 24th Constitutional Amendment Act was held valid. It was stated that the Parliament had power to amend any provision including the fundamental rights, but this power was subject to innate limitations. The legislative authority cannot use this power to alter the basic structure of the Constitution. Then, in the years later, in the case Indira Gandhi v. Raj Narain[5], after the Allahabad High Court invalidated Ms. Indira Gandhi’s election on the grounds of corrupt electoral practices, the Thirty-ninth Constitutional Amendment Act, 1975 was enacted to exclude ‘judicial review’ in election disputes involving the Prime Minister. SC held that the power of judicial review cannot be taken away as it is key to democracy. In the Fourty-second Constitutional Amendment Act, 1976, the Parliament amended Article 368 to bar courts from exercising judicial review over constitutional amendments, and provided that there would be no limitations on power to amend. In the case of Minerva Mills v. Union of India[6], the 42nd Constitutional Amendment Act was held invalid as the power of judicial review and limited amending power are the basic features of the Constitution. The Judiciary issues such guidelines under Articles 32 and 142 of the Constitution. These provisions empower the Judiciary to protect the fundamental rights and issue any order to do complete justice and helps keep law and order in place. Maintaining its Status quo, the Judiciary has taken up its responsibility in favour of the welfare of people by providing them with integrity. It has also undertaken an active participation in the socio-economic modernisation of the society by taking progressive interpretations and affirmative actions at work. All the above cases have proven the proactive role of the Courts over the dominance of the Parliament. Further, we’ll go through the impact on the government in the light of increasing judicial activism.

Also Read  Human Rights of Under-Trials in India

An Impact on Government

With the beginning of modern state system, the functioning of the government has increased intensely. The people now have high expectations from the government to take care of all their needs from cradle to grave. Thus, the functions of judiciary are bound to increase as law cannot afford to be stagnant at this point of time. The judiciary is expected to work with their open visions for the interpretations of statutes and laws drafted by the Parliament. But, with the changing times, this has become insufficient for the people. The interpreting skills of the judiciary are appreciated only when it satisfies the needs of the society as a whole. Recently, in 2018, the Supreme Court of India declared Section 377 of the Indian Penal Code as unconstitutional and decriminalised homosexuality in the case of Navtej Singh Johar and Ors. v. Union of India[7]that reversed their previous verdict[8]on homosexuality. There are many other cases and ongoing cases that put the power in the hands of the judiciary. But, taking into account the practical aspect, the judiciary does have limitations of its own. It can’t function beyond its frontier, set by the legislature. No organ can be given sole authority of powers of their own and other organs as well. The famous quote by John Emerich Edward Dalberg Acton, “Absolute power corrupts absolutely” clearly defines the limits up to which an act shall be done. The Constitution of India provides with the doctrine of ‘separation of powers’ that establishes the relationship between the three organs of the government. The functioning of each organ of the government is defined in the statutes and none of them should exercise it all. It lowers the burden on one authority and also sets limit so as to prevent the misuse of it. The notion of Judicial Activism has been divided into two phases of time: in Pre-Emergency period and then in the Post-Emergency period. ‘

Pre-Emergency Period

The judicial activism in pre-emergency period, from 1950 to 1975, was not that active. The Courts interpreted laws very conventionally and were also limited to very few types of cases such as the Right to Property. The Courts used to adhere to the laws and neglect the practicality of the situation. This resulted in overpowering of the Legislature, and ultimately in the overlooking of the justice and welfare of the people.

Post-Emergency Period

In this era, after 1977, the concept of judicial activism came into an active role. In 1978, the Right to Property was removed from the fundamental rights of the Constitution by the 44th Amendment. It seemed that from the Shankari Prasad Case till the Emergency, our judiciary made many changes and alterations for good of the society and in favour of providing justice to the detriments of the citizens of India. The landmark case, M.C. Mehta v. Union of India[9]marked the introduction of Public Interest Litigation. PIL is the chief implementer of the concept of Judicial Activism in India as people were made aware of their new right. This not only favoured the prosperity of the people, but also developed a sense of faith in them as they now had someone to listen to them. This was recognised and adopted by the people at large in the later years. Recently in 2018 after referring to the case Aruna Ramchandra Shanbaug v. Union of India[10], the Supreme Court of India legalised passive euthanasia under strict guidelines.

Also Read  Criminal Victimization and Justice Administration in India

Whether Judicial Activism Is Needed For Our Democracy?

Theoretically, this concept of Judicial Activism for our democracy is violating the ‘Basic Structure’ of the Constitution as the Legislature is authorized to make laws and the Judiciary is authorized to interpret them well as drafted. But, the doctrine of ‘Separation of Powers’ also comes in the purview as, with the changing epochs and advancement in the technological areas, the mind-sets of the people have also changed as compared to the earlier times. Now, practically looking at the increasing rates in corruptions and scams, there is an urgent need for a separate power who listens to the people and addresses their grievances without any partiality. Montesquieu said, “There is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.” Thus, there should be a powerful, decisive and an independent authority to decide the rights and duties of the people.

Judicial interference is always seen when the other two organs of the government fail to perform their respective functions and duties. This thing, if we see, brings instability in the beliefs of the people with regard to the Legislature and the Executive because, after all, these two organs are to perform their duties at the same time as well. Our constitution makers, while constructing the by-laws for the nation, handed over the main tasks for the law-making to the Parliament. However, there are certain things that break it from attaining its assigned work scrupulously. While some people appreciate the activist concept of the judiciary because of their re-defining roles in a corruption-provoked system, others apprehend this concept as it distresses the constitutional arrangement. However, there are flaws in this administration as well as in the other mechanisms; it’s the corruption altogether. In some cases, Karambir Singh v. State of Punjab[11], Kalyaneshwari v. Union of India[12], Sushil Kumar v. State of Haryana[13], and Simranjit Singh Mann v. Union of India[14] there has been seen a clear misuse of Public Interest Litigation, corrupt misconducts like forgery, etc., which was already started in 1990s. Nevertheless, there is a perky side of PIL, as seen in the Environmental Protection[15]and Consumer Protection cases and many more. Therefore, judicial activism has been subject to reproof. Firstly, it has become obvious that judicial activism has provided an encouragement to the judiciary, as well as the Executive and Legislature. Hence, it has formed an environment of transparency and responsibility. A number of new legislations have come into existence because of this hyperactive role of judiciary. It prompts greater hope between government and citizens. Therefore, judicial activism is a fervent need of a socio-cultural society like India so that the government doesn’t get affected by mistrust of the people.

An Economic-Legal Analysis

Over the time, it is not just the rights of the ‘socially excluded’ that have been put up for judicial review and intervention, it is a whole array of issues such as the environment, consumer affairs, property rights, the malpractices of municipal corporations, educational institutions, politicians and the political parties. It is indeed widening of the subject matter that has caused judicial activism to become an eminent device of a social change. An inspection of judicial activism using the affirmative tools of economic analysis is recommended. A singular value of such an analysis lies in placing the concept of judicial activism in relation to the rule of economic efficiency. It enables a debate in which one cannot present the problem as one of the disputing ideologies, but in terms of the impact of judicial activism on the allocation of scarce resources. While some virtues, that is what an interpretational judicial activism is; other forms of judicial activism that infringes the legislative or executive decision-making on grounds of privilege can result in social costs that may exceed benefits.

Also Read  Democracy and the Rule of Law: Opposites or Coherence?

Conclusion and Recommendations

Courts in India have drawn the legality of their judicial activism from the Constitution of India itself. For the sake of legal realism, there are enormous differences in opinion regarding the extent to which judges do rely, or ought to rely, on their beliefs and preferences and their perceptions of society’s beliefs and preferences, in their decision making.[16] The scrutiny of whether judicial activism in the dominance over the other two organs of the government is a necessity or not has become a mundane concern these days. Unquestionably, judicial interference in the mechanisms of the other two organs has only been in existence due to the fact that these organs have failed to accomplish their commitments appropriately. Politics now has become much of self-conscious being with vote bank, rather than serving the people for their welfare. In these conditions, public finds the judiciary as the only redeemer. And the Courts too have been able to maintain their trust in them. Public trust is an important instrument to keep a check on judicial misconducts. Undoubtedly, the judiciary is the weakest of all the three organs of the government since it neither has force nor has motivation. It only has the force of judgment. It is just the public’s trust in them, which makes it strong. Judicial activism is an effort to comprehend the hope of the people and to build strong fundamentals of ‘rule of law’ concept, which is the base of democracy. For instance, in Vishaka v. State of Rajasthan[17] the court laid down proper guidelines in the absence of any legislation. Here, the proactive role of the Court was appreciated by the people at large. But the query whether it should be left without any check still arises. No doubt, we have doctrine of ‘checks and balances’ in our country, but it cannot be denied to say that it has failed to crisscross the power of the Apex Court. The reason behind this is simply because both the executive and legislature have indulged in fraudulent practices and thus, are unable to maintain a proper mechanism for checking the power of Courts. For example, in the reservation for backward classes’ case, Supreme Court declared that legislature cannot pass the bill until it is not examined by the apex body. Undoubtedly this approach will create problems for the democracy of this country. The Courts need to understand that rule of law does not mean rule of judges. The doctrine of ‘Separation of Powers’ is a mandate for a good governance of a country. In contrast, it cannot be denied that judicial activism has played a crucial role in protecting human rights and providing justice as demanded by the public. Thus, the impact on government of this concept will be somehow negative due to the malpractices and corruption; but the Courts will maintain a sense of belief of righteousness and justice in the people.

[1] INDIA CONST. art. 352.

[2] Shankari Prasad v. Union of India AIR 1951 SC 455.

[3] Golak Nath v. State of Punjab AIR 1967 SC 1643.

[4] Keshavananda Bharti v. State of Kerala AIR 1973 4 SCC 225.

[5] Indira Gandhi v. Raj Narain AIR 1975 SC 2299.

[6] Minerva Mills v. Union of India AIR 1980 SC 1789.

[7] Navtej Singh Johar and Ors. v. Union of India WRIT PETITION (CRIMINAL) No. 76 of 2016.

[8] Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013 (India).

[9] M.C. Mehta v. Union of India AIR 1987 SC 1086.

[10] Aruna Ramchandra Shanbaug v. Union of India WRIT PETITION (CRIMINAL) No. 115 of 2009.

[11] Karambir Singh v. State of Punjab CRM-M No. 23589 of 2015.

[12] Kalyaneshwari v. Union of India WRIT PETITION No. 260 of 2004.

[13] Sushil Kumar v. State of Haryana Civil Writ Petition No. 19178 of 2011.

[14] Simranjit Singh Mann v. Union of India AIR 1992 4 SCC 653.

[15] M.C. Mehta v. Union of India AIR 2001 SC 1948.

[16] Christopher Wolfe, JUDICIAL ACTIVISM: BULWARK OF FREEDOM OR PRECARIOUS SECURITY? 1-2 (2nd ed., Roman & Littlefield Publishers Inc. USA, 1997).

[17] Vishaka v. State of Rajasthan AIR 1997 SC 3011.