[Guest Article] Judicial Activism in India by Vishal Gupta


India is a democratic country. In Democracy, people have the power to appoint their representatives who represent their will, needs, problems etc. in Parliament. The Preamble of Indian Constitution also states, “We the people of India”, which means, we the citizen of India have the power to choose our representatives. Representatives are responsible to look after the welfare of society. When these representatives forget or abstain the need and demand of people then judiciary comes into the action and takes responsibility for the welfare of the citizens.

Judicial Activism is a ruling, issued by a judge that overlooks legal precedents or past constitutional interpretations to support a political view.

Black’s Law Dictionary defines Judicial Activism as: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent
Merriam-Webster defines Judicial Activism as “Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from the established precedent or are independent of or in opposition to supposed constitutional or legislative intent

History and Theories Behind Origin

The phrase judicial activism was first coined by the American historian, Arthur M. Schlesinger, in a 1947 article in Fortune. The first landmark case in this regard was the case of Marbury v. Madison. This is the very first case, in which the Supreme Court took a step above the legislation. In America, judicial activism is known as judicial review.

Two theories which go parallel and help in origin and evolution of judicial activism are as follows

1-Theory of Vacuum filing
2- Theory of Social Want

Theory of Vacuum Filling
The theory of vacuum filling states that a power vacuum is created in the governance system due to the inaction and laziness of any one organ. When such a vacuum is formed, it is against the good being of the nation and may cause disaster to the democratic set up of the country. Hence, nature does not permit this vacuum to continue and other organs of governance expand their horizons and take up this vacuum. In this case, the vacuum is created by the inactivity, incompetence, disregard of the law, negligence, corruption, utter indiscipline and lack of character among the two organs of governance viz. the legislature and the executive. Hence, the remaining organ of the governance system i.e. the judiciary is left with no other alternative but to expand its horizons and fill up. This theory talks about the activism of judiciary due to negligence of other organs.

Theory of Social Want
The Theory of Social Want states that judicial activism is the failure of the existing legislations to cope up with existing situations and problems in the country. When the existing legislations failed to provide any pathway, it became responsibility upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. The only way left with them within the framework of governance to achieve this end was to provide non-conventional interpretations to the existing legislation, so as to apply them for greater good.

Judicial Activism in India
Judicial Activism can be traced in India from time of enactment of constitution. Article 141 of Indian Constitution states that the decision of the Supreme Court is binding on all the other courts within the territory of India. There are some situations that lead to judicial activism. These are:
(i) When the legislature fails to discharge its responsibilities.
(ii) In the case of a hung parliament where the government is very weak and unstable.
(iii) When the governments fail to protect the basic rights of the citizens or provide a fair, an efficient and just system of law and administration,
 (iv) When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and
(v) Finally, the court may on its own try to expand its jurisdiction and confer on themselves more func­tions and powers

Judicial Activism and PILs in India
Public interest litigation means a suit filed in a court of law for the protection of public interest such as pollution, terrorism, road safety etc. Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act. It has been interpreted by judges to consider the intent of the public at large. The court has to be satisfied that the person who has resorted to PIL has sufficient interest in the matter.
Justice P.N. Bhagwati and Justice V.R. Krishna Ayer have played a key role in promoting this avenue of approaching the apex court of the country, seeking legal remedies in areas where public interests are at stake.
Justice Bhagwati observed in the case of Asiad workers case, ‘now for the first time the portals of the court are being thrown open to the poor and the downtrodden. The courts must shed their character as upholders of the established order and the status quo. The time has come now when the courts must become the courts for the poor and the struggling masses of this country

Landmark Judgments of P.I.L.

1. Vishaka v. State of Rajasthan PDF/download/button
The Vishaka judgment recognized sexual harassment as “a clear violation” of the fundamental constitutional rights to equality, non-discrimination, life, and liberty, as well as the right to carry out any occupation. The guidelines, directed toward employers, included a definition of sexual harassment, a list of steps for harassment prevention, and a description of complaint procedures to be “strictly observed in all work places for the preservation and enforcement of the right to gender equality.”

2. Hussainara Khatoon v. State of Bihar PDF/download/button

In this case, more than 40,000 prisoners were in jail without any trial for more than 10 years from the date of detention. Court held that “Right to Speedy Trial” falls under the ambit of Article 21 of Indian Constitution and declare it as a fundamental right and order to release the prisoners expeditiously.

3. M.C. Mehta vs. Union of India

Six hundred tanneries operating in a highly congested residential area of Kolkata have been shifted out of the City and relocated in a planned Leather Complex in the State of West Bengal. A large number of industries were closed down by the Court and were allowed to reopen only after these industries set up effluent treatment plants and controlled pollution.

Recent Judgments of P.I.L.

1-Bombay Environmental Action Group ... vs. The State of Maharashtra And Ors. on 17 September 2018

In this very case, a group of environmental activists filled P.I.L. in the state High Court for the conservation of mangroves in whole Maharashtra. The Division Bench issued an order to the Maharashtra government that conservation of mangroves is a matter of utmost importance for which they have to form a committee and take a serious view on it.

2- Javed Ahmad Zargar vs. State of J&K; And Ors on 29 August 2018
In this case, the respondent has filed PIL against the Public Health Engineering Department for the embezzlement of fund of 45 crores which was granted to provide drinking water on the hilly areas. Court formed a committee to look into this issue
PIL has been considered a boon, as it is an inexpensive legal remedy due to nominal costs involved in filing the litigation. But there are some problems also in the PIL cases. There has been an increase in the number of frivolous cases being filed due to low court fees. Genuine cases got receded to the background and privately motivated interests started gaining predominance in PIL cases. In view of this, the Supreme Court has framed certain guidelines governing the PIL.

Judicial Activism and Separation of Power
Theory of Separation of Power was given by Montesquieu which was worldwide accepted. Theory of Separation of Power defines that all the functions and power of three organs of Government i.e. Legislative, Executive and Judiciary should be properly demarcated so that one should not encroach on the power and functions of the other. Judicial activism is contrary to the separation of power. Due to the activeness of judiciary, it encroaches on the power of Legislative and Executive. 

Judicial Activism and Judicial Overreach

Judicial Activism and Judicial Overreach are bifurcated through a very thin line. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government, then these power amounts to Judicial Overreach. In simple words, when Judicial Activism crosses its limit and becomes adventurous it is known as Judicial Overreach. The compulsion of National Anthem in cinema hall by giving certain guidelines which were contrary to the ruling of Bijoe Emmanuel case and Uphar Tragedy case, Liquor Ban on Highways which affect to the revenue of government and Lodha Committee report on B.C.C.I.. are some of the recent examples of Judicial Overreach.

Judicial Activism is rapidly increasing mechanism with the help of P.I.L. and Judicial Review. It provides Necessary and Inexpensive Justice to the poor. It depends on the will and discretion of judges who are also known as activist judges. But on the other hand, it is said that Power corrupts absolutely and absolute power corrupt absolutely. It can be said that people themselves do not want one institution to be the repository of all power. There are numerous instances when people have fought against the tyranny of the government they elected. Every system has its inbuilt limitation and some sort of mechanism is required to ensure that no institution becomes so powerful that it can hamper on the rights of its own citizens.


  • Black’s Law Dictionary, 7th ed., (St. Paul, Minnesota: West Group, 1999)
  • Merriam-Webster’s Dictionary of Law, (Springfield, Massachusetts: Merriam-Webster,1999
Vishal Gupta is a student of P S I T College of Law. He can be reached at [email protected]

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