Judicial activism aspects include PIL-based directions to government and an expansive reading of Fundamental Rights by India's courts since the 1970s.
At a glance
The proactive role of courts in protecting rights and pressing the legislature and executive to act, as opposed to judicial restraint.
Bandhua Mukti Morcha v. Union of India (1984) relaxed standing rules so public-spirited citizens could petition on behalf of the deprived.
Chief vehicle for expanding access to justice and enforcing Fundamental Rights through Public Interest Litigation.
Judicial activism aspects of the Indian judiciary refer to the proactive role courts have played, especially since the mid-1970s, in protecting citizens' rights and pressing the legislature and executive to fulfil their constitutional duties, going beyond a strict, precedent-bound reading of the law.
Meaning of Judicial Activism
Judicial activism denotes the assertive, proactive role played by the judiciary in protecting citizens' rights and promoting justice, including pushing the legislature and the executive to discharge their constitutional obligations. It is also called "judicial dynamism" and stands as the opposite of "judicial restraint," under which judges exercise self-control and confine themselves to applying settled precedent. Various formulations of the concept converge on a few common threads: judges departing from strict precedent in favour of socially progressive outcomes; expanding individual rights beyond what earlier decisions or the plain text might suggest; and, in effect, judges making law rather than merely interpreting it, with a view to enhancing a statute's usefulness for social betterment.
Origins
The term "judicial activism" originated in the United States and is credited to the American historian Arthur Schlesinger Jr., who coined it in 1947. In India, the doctrine took root in the mid-1970s, with Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai laying its foundations on the Supreme Court.
Two Major Aspects in India
Indian judicial activism has manifested chiefly in two ways.
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Directions to the government through Public Interest Litigation (PIL). Courts have issued directions to government authorities to protect citizens' rights and further the public interest, most visibly through PIL. Early instances include Hussainara Khatoon v. State of Bihar, which arose from newspaper reports about undertrial prisoners in Bihar who had spent years in jail — longer than the sentences they would have received if convicted — and which an advocate turned into a petition the Supreme Court heard. Another early case, Sunil Batra v. Delhi Administration (1980), began when a Tihar Jail inmate smuggled out a note to Justice Krishna Iyer describing torture of prisoners, which the Court converted into a petition. In Bandhua Mukti Morcha v. Union of India (1984), Justice Bhagwati observed that the problems of the poor differ qualitatively from those the courts had traditionally dealt with, and that a strictly adversarial procedure would leave them unable to enforce their fundamental rights — a rationale that underpinned the relaxation of standing (locus standi) rules to let public-spirited citizens and organisations petition on behalf of the deprived.
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Expansive interpretation of Fundamental Rights. The courts have significantly widened the scope of the right to equality (Article 14), the right to freedom (Article 19), and the right to life and personal liberty (Article 21), reading into these provisions protections and entitlements not spelt out in the constitutional text itself.
Beyond PIL and rights expansion, courts have also directed executive agencies to act — for instance, directing the CBI to investigate cases involving politicians and bureaucrats, such as the hawala case, a case concerning a former prime minister, and a case of illegal allotment of petrol pumps — illustrating activism that reaches directly into administration.
Judicial Activism versus Judicial Review
Judicial review and judicial activism are related but distinct. Judicial review is the power of courts to examine the constitutionality of laws and executive actions against constitutional provisions. Judicial activism, in this framing, is that species of judicial review in which judges go further — not merely upholding or striking down laws by reference to constitutional text, but also bringing their own policy preferences to bear, moulding the law to changing social and economic conditions so that constitutional ideals remain meaningful in practice. The expansion of locus standi through PIL, allowing courts to entertain litigation on behalf of those who could not approach them directly, is often cited as itself an example of this expanded, activist role of judicial review.
Justification Offered for Judicial Activism
Commentators have offered two broad justifications. First, a near-collapse of responsible government — where the legislature and executive fail to discharge their functions — erodes public confidence in the Constitution and in democracy, creating pressure for the judiciary to step in. Second, citizens who feel unprotected by the other two organs of government look to the judiciary for the protection of their rights and freedoms, generating pressure on courts to act.
Impact and Criticism
Judicial activism, exercised chiefly through PIL, has been credited with democratising access to the courts for individuals and groups alike, forcing greater executive accountability, and pushing reforms such as requiring election candidates to disclose their assets, income, and educational qualifications through affidavits. At the same time, the volume of PIL has been said to overburden the courts and blur the line between the judiciary on one hand and the legislature and executive on the other, since courts have at times ruled on matters that would ordinarily fall within the domain of the executive.
UPSC Relevance
Prelims
- The term "judicial activism" was coined by Arthur Schlesinger Jr. in the United States in 1947.
- In India, judicial activism took shape in the mid-1970s under Justices Krishna Iyer, Bhagwati, Chinnappa Reddy, and Desai.
- PIL is described as the chief instrument, or most popular manifestation, of judicial activism in India.
Mains
- Discuss the two major aspects through which judicial activism has manifested in India, with examples.
- Distinguish judicial activism from judicial review, and examine the criticisms levelled against an expansive judicial role.
FAQ
Q1. What is judicial activism? It is the proactive role played by the judiciary in protecting citizens' rights and promoting justice, including pressing the legislature and executive to perform their constitutional duties — the opposite of judicial restraint.
Q2. Who introduced judicial activism in India? Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai are credited with laying its foundations in the mid-1970s.
Q3. How is judicial activism different from judicial review? Judicial review is the general power to test laws and executive action against the Constitution; judicial activism is a more assertive form of that review in which judges also bring policy preferences to bear and mould the law to social change.
Q4. What role has PIL played in judicial activism? PIL is the chief vehicle of judicial activism in India, letting courts entertain petitions filed on behalf of those who cannot approach the courts directly, expanding access to justice.
Q5. What are the criticisms of judicial activism? That it has overburdened the courts and blurred the constitutional separation between the judiciary and the legislature/executive by having courts decide matters that would ordinarily belong to the other organs.
Quick Revision
- Judicial activism = proactive judicial role protecting rights and pressing other organs to act; opposite of judicial restraint.
- Term coined by Arthur Schlesinger Jr. (USA, 1947); in India, rooted in mid-1970s (Krishna Iyer, Bhagwati, Chinnappa Reddy, Desai).
- Two aspects: PIL-based directions to government; expansive reading of Articles 14, 19, 21.
- Justified by near-collapse of responsible government and citizen pressure on courts; criticised for overburdening courts and blurring separation of powers.
Sources
- Supreme Court of India, official judgment records — Hussainara Khatoon v. State of Bihar; Sunil Batra v. Delhi Administration (1980); Bandhua Mukti Morcha v. Union of India (1984)
Further Reference
For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:
- M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
- D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
- The Constitution of India — Bare Act — the official text.
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