Judicial Activism

Judicial activism in India, rooted in constitutional principles, ensures justice and rights protection. The judiciary's proactive role, exemplified by cases like Sabarimala and Hussainara Khatoon, advances social justice and fills legislative voids. However, concerns arise regarding overreach, hindering executive functions and eroding public trust. Measures like assessing judgments' impact and adhering to constitutional boundaries are crucial. Effective judicial activism maintains a balanced governance framework, upholding rights while respecting institutional roles. This approach fosters cooperation between branches and ensures effective governance, promoting democracy's vitality and citizens' trust in the judiciary's integrity.

Judicial activism in India is deeply rooted in the constitutional framework, where the state is entrusted with ensuring justice, liberty, equality, and fraternity. The state is obligated to safeguard individual rights and implement the Directive Principles of State Policy. To prevent the state from shirking its responsibilities, the Indian Constitution grants courts the inherent power to scrutinize state actions. In this regard, the Indian judiciary is regarded as the custodian of the Constitution, tasked with actively safeguarding individuals' fundamental rights against unjust or unreasonable state actions. Thus, the judiciary fulfills its constitutional duty by intervening whenever necessary to rectify injustices perpetrated by the state

Judicial activism, akin to judicial review, traces its origins to the United States. In India, the doctrine of judicial activism emerged in the mid-1970s, championed by judges such as Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy, and Justice D.A. Desai. This concept embodies the proactive stance taken by the judiciary in safeguarding citizens' rights and advancing justice within society. Essentially, it signifies the judiciary's assertive role in compelling the legislative and executive branches to fulfill their constitutional obligations. Judicial activism is sometimes referred to as "judicial dynamism" and stands in contrast to "judicial restraint," which denotes the judiciary's exercise of self-control.

Judicial activism happens when the courts have power to review the State action. Article 13 read with Articles 32 and 226 of the Indian 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 which means that it cannot be extinguished.
• Article 32 confers power on the Supreme Court to issue any order or writ for the enforcement of any of the fundamental rights.
• Article 226 of the Indian Constitution gives power to the High Courts to issue any appropriate order or writ for the enforcement of fundamental right and other legal rights.
• Hence, the jurisdiction of High Court under Article 226 seems wider than the jurisdiction of Supreme Court under Article 32.
• Moreover, the Supreme Court is vested with the power to grant special leave to appeal from any judgment, decree, determination, sentence, or order in any case or matter, as per Article 136 of the Indian Constitution. This provision confers special authority upon the Supreme Court.
• Curative Petition has been introduced by the higher judiciary with the aim of preventing the abuse of due process and rectifying significant miscarriages of justice.
• Article 142 of the Indian Constitution stands out as one of the most crucial constitutional provisions, granting exceptional authority to the Supreme Court. This provision empowers the Supreme Court to issue appropriate decrees or orders to ensure complete justice in any ongoing matter before it. Consequently, Article 142 has been instrumental in enabling judicial legislation in India. Article 142 of the Indian Constitution has been constructively applied in various instances, including:
  • Cleansing of the Taj Mahal: The Supreme Court utilized Article 142 to address the issue of the Taj Mahal's marble yellowing due to sulfur fumes from surrounding industries.
  • Protection of Undertrial Rights: Article 142 was invoked to safeguard the rights of undertrial prisoners who were languishing in jails without trial.
  • Union Carbide Case: In the aftermath of the Bhopal gas tragedy, the Supreme Court applied Article 142 to provide justice to the victims. It awarded compensation totaling $470 million to those affected by the disaster.

Public Interest Litigation (PIL) is intricately tied to the concept of judicial activism, particularly within the Indian legal system. The surge of Public Interest Litigation (PIL) can be largely attributed to the proactive stance of the Supreme Court through judicial activism. While the PIL shares similarities with the American model designed to offer legal representation to underrepresented groups, its evolution in India is primarily attributed to the proactive stance of the judiciary, notably spearheaded by Justice V.R. Krishna Iyer and Justice P.N. Bhagwati in the SP Gupta case where the concept of locus standi was relaxed and liberal view was taken in this regard.

Public Interest Litigation (PIL) is known by various names such as Social Action Litigation (SAL), Social Interest Litigation (SIL), and Class Action Litigation (CAL). It allows any concerned citizen or social organization to approach the court for the protection and enforcement of the rights of individuals or groups who may not be able to seek legal remedies themselves due to factors like poverty, ignorance, or social and economic disadvantage.

The Supreme Court has defined PIL as "a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

• Advancement of Progressive Social Policies: Judicial activism allows judges to support progressive social policies, as seen in cases like the Sabarimala judgment, contributing to social engineering.
• Ensuring Social Justice and Freedom: By intervening to protect the rights of citizens and provide social justice to the marginalized, judicial activism promotes a more equitable society.
  • e.g. Hussainara Khatoon Case: over 40,000 undertrials were released from jail.
• Filling Legislative Vacuum: Judicial activism addresses gaps in legislation, like in the case of the Visakha guidelines, ensuring that the law meets evolving social needs.
• Checks on Legislative and Executive Actions: By enforcing constitutional limits, judicial activism prevents legislative overreach and executive abuse of power.
• Safeguarding Constitutional Offices and Institutions: It ensures that constitutional offices and institutions remain independent and not manipulated for authoritarian purposes.
  • Eg The Fourth Judge Case declared the National Judicial Appointments Commission(NJAC) unconstitutional as it posed a threat to the independence of the judiciary
• Protection and Expansion of Individual Rights: It helps in safeguarding and expanding individual rights such as the right to live with dignity.
  • For example, recognition of privacy as a fundamental right in KS Puttaswamy judgment.
• Upholding Citizen Confidence in the Constitution: Judicial activism restores and maintains citizen confidence in the constitution and judicial organs, especially when the legislature and executive fail in their duties.
• Addressing Political Inaction: It helps in addressing political inertia and fear of taking difficult decisions, thereby filling political gaps and promoting good governance.
  • Eg Abolition of instantaneous triple talaq.

Judicial activism is imperative for Indian democracy but the judiciary should maintain the confidence and support of the public by taking a rational and cautious approach. However, at times, judiciary in its bid to render complete justice, encroaches upon the domain of executive or legislature, which is termed as judicial overreach.

In numerous instances, Parliament has leveled accusations against the judiciary, citing judicial intervention and alleging that the judiciary exceeds its constitutional authority.

• The government views instances such as the Supreme Court's rulings on matters like the National Eligibility-cum-Entrance Test (NEET), reformation of the Board for the Control of Cricket in India (BCCI), and appointments to judicial posts via the Collegium system as examples of judicial overreach.
• Under Article 142, the Supreme Court has made controversial judgments like the highway liquor ban and national anthem mandate, encroaching into executive territory.
• The distinction between judicial activism and overreach is narrow, with overreach potentially disrupting the balance between government branches.
• Impeding Government Functioning: Instances such as a Niti Aayog study revealing that the government incurred a loss of ₹8000 crore due to five judicial orders favoring environmental protection illustrate how judicial interventions can hinder governmental operations
• Judicial decisions may lack expertise in weighing economic, environmental, and political implications, as seen in cases like the liquor ban.
• Unlike the executive, judges are insulated from external control, raising questions about their accountability.
• Frequent overreach erodes trust in elected representatives and parliamentary institutions, portraying the judiciary as exerting undue authority in a democracy, termed the "tyranny of the unelected."

• Assessment of Judgments' Impact: The government should conduct a thorough assessment of the impact of judgments where the court invokes Article 142. A white paper should be published to analyze both the beneficial and adverse effects of the judgment within six months of its issuance.
• Supplement, Don't Supplant: The Supreme Court should adhere to its own verdict on Article 142, as outlined in the Supreme Court Bar Association v. Union of India case. According to this ruling, Article 142 should not be utilized to replace existing laws but rather to complement them.

The continued effectiveness of judicial activism hinges on its prudent application. There is widespread agreement that the judiciary should engage in self-regulation and exercise restraint when necessary. In the case of Divisional Manager, Aravali Golf Course v. Chander Haas, the Supreme Court emphasized the importance of judges understanding their limits and refraining from attempting to govern. The court stressed the need for modesty and humility, cautioning against behaving as if they were rulers. The Constitution enshrines a clear separation of powers in Article 50 among the legislature, executive, and judiciary, and each branch must show respect for the others and refrain from intruding into their respective domains. By adhering to these principles, India can foster a more balanced and efficient system of governance where the judiciary plays its role in protecting fundamental rights while also respecting the boundaries of its authority, fostering cooperation between branches of government, and ensuring effective legislative scrutiny.