Judicial Activism in India: A Food for Thought

The instrument of judicial activism has been actively used in furthering the Human Rights jurisprudence in the country. The judiciary has developed the fundamental rights jurisprudence while giving liberal interpretation to the ‘right to life and personal liberty’. However, the judiciary has been accused of judicial interference. This is an ongoing debate, to know more, read along!

The state functionaries, especially the judiciary, work independently, but they cannot work in the vacuum. It is important to understand that for a democracy based in ‘rule of law’ that the powers and the exercise of such powers vested in the Judiciary in respect to the social needs of the society. While discussing Judicial Activism in India, Justice P N Bhagwati writes: “One basic and fundamental question that confronts every democracy, run by a rule of law is what is the role or function of a judge. Is it the function of a judge merely to declare law as it exists-or to make law?”[1]

The Constitution of India provides that it is the obligations of the state to ensure Justice, Liberty, Equality, and Fraternity in the country, and protect the Fundamental Rights of the individuals enshrined under Part III. Therefore, the powers of the state are also confined and not absolute in a way that the judiciary has by the Constitutional scheme, been vested with the power of reviewing state actions. Moreover, the Courts have also been vested with the enormous powers to frame their own rules, to bind the lower court with the decision of the higher court, writ jurisdiction and special appellate jurisdiction, i.e. Supreme Court’s power under Art. 136.

Judicial activism has been generally seen to take place when the courts were exercising their power to review the State action. Article 13 read with Article 32 and 226 of the Constitution gives the power of judicial review to the higher judiciary to declare, any legislative, executive or administrative action, void if it is in contravention with the Constitution. This power of judicial review is a basic structure of the Indian Constitution.[2] Increasingly, the Supreme Court has interpreted Article 32 in a very liberal manner in many cases in order to enforce fundamental rights even against the private entities performing public functions.

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The higher judiciary has also invented ‘curative petition’, in order to prevent abuse of the process to cure gross miscarriage of justice.[3] Another important constitutional provision under the Constitution that gives extraordinary power to the Supreme Court in Article 142 of the Constitution. This provision empowers the Supreme Court to pass suitable decree or order for doing complete justice in any pending matter before it. This provision is responsible for the judicial legislation in India. In Vishaka v. State of Rajasthan[4] the Supreme Court held that in the ‘absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose.’

For the purposes of providing ‘access to justice,’ the Supreme Court through its judicial activism has expanded the scope of ‘locus standi’ too. In trying to ensure access to justice for the indigent persons, members belonging to socially and educationally backward classes, victims of human trafficking or victims of beggar, etc., the Supreme Court has exercised its epistolary jurisdiction[5] and taken suo moto actions on mere postal letters or newspaper clippings disclosing the human rights violations in the society. Further, the courts have expanded the scope of petitions under Article 32, such that they can be filed by public-spirited persons in the public interest, which came to be known as Public Interest Litigation.

The Supreme Court in the case of Bandhua Mukti Morcha v. Union of India[6]has justified the public interest litigation on the basis of “vast areas in our population of illiteracy and poverty, of social and economic backwardness, and of an insufficient awareness and appreciation of individual and collective rights”

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Furthermore, the Supreme Court in Sheela Barse v. Union of India[7] said that the compulsions of the judicial innovation through the technique of a public interest action are a constitutional promise of a social and economic transformation to usher-in an egalitarian social-order and a welfare-State.

An example for such exercise of the jurisdiction of the Supreme Court is visible in the case of Parmanand Katara v. Union of India.[8]In this case a writ petition seeking court’s directions, in order to provide immediate medical treatment to the persons injured in road to other accidents without going through the technicalities of the criminal procedure, was filed by an advocate. The Supreme Court accepted the application of the advocate and directed the medical establishments accordingly.

The instrument of judicial activism has been actively used in furthering the Human Rights jurisprudence in the country. The judiciary has developed the fundamental rights jurisprudence while giving liberal interpretation to the ‘right to life and personal liberty’. For example, the judiciary in India has developed the right to live in healthy environment, implementing Precautionary and Polluter Principles as basic feature of sustainable development, the application of doctrine of public trust for the protection and preservation of natural resources, etc[9]

The Supreme Court has also upheld the right to free and compulsory education as a Fundamental Right under Article 21.[10] It was only due to judicial interference that the government was directed to rehabilitate the children of prostitutes.[11]

However, the judiciary has been accused of judicial interference. The parliament has said that the judiciary overreaches its constitutional power. The Supreme Court’s rulings on National Eligibility-cum-Entrance Test (NEET) i.e., single test for admissions in medical courses, reformation in Board for Control of Cricket in India (BCCI), filling up the judges’ posts, etc. have been considered as judicial intervention by the government.

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There is no dispute on the fact that the judiciary should also self-regulate itself. The Supreme Court has said that the Judges must know their limits and must not try to run the Government. There is broad separation of powers under the Constitution and each organ of the State- the legislature, the executive and the judiciary-must have respect for the others and must not encroach into each other’s domains.[12]

But one should not forget that it is through judicial activism that the indigent persons and other disadvantageous groups of people have somehow been provided with the adequate fundamental rights.

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[2] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

[3] Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

[4] AIR 1997 SC 3011.

[5] Sunil Batra v. Delhi Admnistration, (1978) 4 SCC 494.

[6] AIR 1984 SC 802.

[7](1988) 4 SCC 226.

[8] AIR1989 SC 2039.

[9] M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

[10] J.P.Unnikrishnan v. State of A.P., AIR 1993 SC 2178.

[11] Gaurav Jain v. Union of India, AIR 1990 SC 292.

[12] Divisional Manager, Aravali Golf course v. Chander Haas, (2008) 1SCC 683.