Judicial activism is a dynamic process of legal perspective in a changing society. In January 1947 Fortune Magazine article entitled “The Supreme Court: 1947” Arthur Schlesinger Jr. introduced the term “judicial activism.” Law making has taken on new dimensions in recent years through judicial activism by the courts. The judiciary has embraced a healthy trend in social interpretation of the law. Judicial activism describes court rulings that are suspected of being based instead of existing legislation on personal or political considerations. Judges sometimes appear to exceed their powers when deciding cases before the Court. According to the Constitution they are supposed to exercise judgment when interpreting the law. However, judicial activists appear to exercise their will to make law before the Court in response to legal issues. Judges should act with greater courage when deciding on cases.
1. Legislation should be interpreted and applied on the basis of constant changes in conditions and values.
2. As society changes, and their beliefs and values change, court decisions should then be made in cases that reflect those changes.
Judges should use their powers to correct injustices, especially when the other branches of government do not act to do so, according to the idea of judicial activism. In short, the courts should play an active role in shaping social policy on issues like civil rights, the protection of individual rights, political injustice and public morality.
Evolution of Judicial Activism
India’s Supreme Court began in the 1950s as a technocratic tribunal but slowly gained more power through constitutional interpretation. Their transformation into an activist tribunal was gradual and imperceptible. The roots of judicial activism are actually to be seen in the court’s early assertion about the nature of judicial review.
Indian Judicial Activism can be both positive and negative;-
1. A court that is committed to changing power relations to make them more equitable is said to be positive activist.
2. A court which uses its ingenuity to preserve the status quo in power relations is said to be negative activist.
Need for Judicial Activism
Though there was no doctrine of the separation of powers recognized by the Constitution in its absolute rigidity, the functions of the various organs of the State were meticulously defined and demarcated by our constitutions. Still a welfare state and like ours a developing country it is highly impossible for the judiciary to confine itself to interpreting the laws, given the existing socio-economic and political conditions. To extend its jurisdiction in the field of law making or with the intention of promoting the statute to reach and benefit the people it is meant for and for the cause of social justice, it needs to read the laws. The legislature also cannot foresee all the eventualities and future contingencies and enact any law. It is the judiciary’s duty to scrutinize and complete the gaps. When the executive fails to fulfill his duty, it becomes the judiciary’s primary duty to compel the executive to perform the lawful functions. 
Various Theories of Judicial Activism
There are two theories of judicial activism. They are:-
1. Theory of vacuum filling:-
The theory of vacuum filling states that a power vacuum is created by inaction and laziness of any organ within the governance system. When such vacuum is formed, it is against the nation’s good being and could cause disaster to the country’s democratic establishment. Nature, therefore, does not allow this vacuum to continue and other governance organs expand their horizons and take up this vacuum. In this case, the vacuum is created between the two governance bodies by inactivity, incompetence, disregard for law, negligence, corruption, utter indiscipline and lack of character viz. the legislative and executive branches. The rest of the governance system, i.e. the judiciary, is therefore left with no alternative but to expand and fill its horizons; the vacuums created by the executive and the legislature. According to this theory, the so-called judicial hyper- activism is thus the result of filling up the vacuum or void created by the non-activism of the legislative and executive.
2. Theory of social want:-
Social Want Theory states that judicial activism emerged as a result of the failure of existing laws to cope with existing country situations and issues. When the existing laws failed to provide any path, it became the responsibility of the judiciary to take on the oppressed problems and find a way to solve them. In order to achieve this goal, the only way left to them within the governance framework was to provide non-conventional interpretations to existing laws in order to apply them for greater good. So the activism of the judiciary has emerged. Supporters of this theory believe- judicial activism plays a vital role in bringing about the transformation of society. It is the state’s judicial wing which injects life into the law and supplies the missing links in the law. The judiciary comes to acquire the status of a catalyst on change having been armed with the power of review.
Necessity of Judicial Activism in The Present Situation
An independent, unbiased and fearless judiciary is “Our” Constitution Creed” that was why our Constitution’s founding fathers tried to insulate the judiciary from external influences. As an institution, the fundamental purpose of the judiciary is to establish the law and to rectify grievances within the parameters of law enacted by the legislature. Therefore, in order to understand judicial activism in its correct perspective, what needs to be understood are the circumstances that forced it into an active role and the Courts. It is the constitutional obligation to uphold the ‘rule of law’ and to uphold and protect the constitution’s basic structure. It’s the judiciary’s duty to lift the veil from ruling elite misdeeds and power brokers. Failure to act by broadening their prudence and courage in an area where they were reluctant to step in the earlier occasions could lead to the downfall of democracy.
The judiciary is the only place to shelter justice, fair play, and equity and life security in the event of legislative arbitrariness or executive abuse or against unjust and unreasonable legislation. Prof. Upendra Baxi says: “Judicial activism only arises under conditions in which power seekes to shape its own law and ‘jurisprudence’ above and beyond the law and the Constitution conferred on the title of legitimacy by the very constitution of power, otherwise ‘Judicial Activism’ is a response to the state’s lawlessness.’
Course of Judicial Activism
Activism on the part of the judiciary in the first decade of independence was nearly nil with the executive running political stalwarts and the parliament functioning with great enthusiasm, the judiciary and the executive went along.A judicial and structural view of the constitution was held entirely by the apex court in the 50s through half of the 70s. Two years before the emergency declaration, the Supreme Court declared in the famous Keshavananda Bharati case that the Executive had no right tamper with the Constitution and alters its fundamental characteristics. But it was not able to prevent the emergency declared by Mrs. Gandhi and it was only at the end that the apex court and the lower courts began to intervene continuously in both executive and legislative areas.
The Bihar under trial case was the first major case of judicial activism through litigation over social action. In 1980, some law professors in the Agra Protective Home revealed the barbaric conditions of detention in the form of a written petition pursuant to Article 21, followed by a case against Delhi Women’s Home filed by a Delhi law faculty student and a social worker. Then three journalists filed a petition to ban the prostitution trade in which women were purchased and sold as cattle. The Supreme Court ordered the police not to handcuff a man who had been arrested purely on suspicion and not to take a woman to the police station after dusk. Judges of the High Court visited the prisons to check prisoner’s living conditions. In 1993, in just one month, the Apex Court declared a judgment protecting the rights of innocent held in the Hazaratbal Mosque in Srinagar, setting out the constitutional powers of the Chief Electoral Commissioner, which threatened the closure of multiple crore rupees if they continued to pollute the Ganga and Taj Mahal and brought all government and semi-government entities under the Consumer Protection Act. In a judgment of 1994, it asked the chief of staff of the army to pay Rs. 6,00,000 to the widow and two children of an army officer who had died some 16 years before due to the callousness of the authorities in question.
The Rao government referred the controversial 27 per cent job reservation in central government and public sector undertakings to the Supreme Court. The Court ruling favored 49 per cent of backward caste and class jobs but the ‘creamy layers; were exempt from this reservation. Similarly the court placed a curb on the capitation fee operation in Karnataka colleges. The Supreme Court providing direction to the CBI and summoning the CBI head to report on the hawala case reveals the breakdown of other government machinery. In the wake of the tactics of delay and technical evasion undertaken by the investigate agencies, the judicial interference with the CBI work became inevitable.
Article 21 And Judicial Activism
In India, the right to privacy is one right which is not properly recognized, but which has been given a place under Article 21 of the Constitution through judicial activism. It is not a right to physical restraints but a right to psychological restraint or right infringement. It can have both positive and negative implications. It protects the sanctity of women which reveals personal issues (menstruation, pregnancy) would result in violation of their right to privacy.
The Supreme Court also uses the right to privacy to increase the punishment of women for crime, telephone tapping, disclosure of terrible disease and personal affairs such as restricting what one eats is a violation of the right to privacy. It is not absolute because in some situations, such as athlete doping tests, cricketers, the right to privacy does not stand for state security and public welfare. With reasonable restrictions the courts can order that right. It may be legally restricted in order to prevent crime, disorder or protection of health or morals, or in order to protect rights and freedom of others.
In A.K. Gopalan v. State of Madras, the Indian Supreme Court rejected the argument that not only must the procedure prescribed by law for doing so be followed to deprive a person of his life or liberty, but that such proceedings must also be fair, reasonable and just. Holding otherwise would be to introduce the due process clause in Article 21, which was deliberately omitted when the Indian Constitution was framed.The most recent case of judicial activism was the case of Aruna Ramchandra Shanbaug v. Union of India and Others, Aruna Shanbaug, a nurse in 1973, was sexually assaulted while working at a hospital in Mumbai, and has been in a permanent vegetative state since the assault. In 2011, after 37 years of being in this status, India’s Supreme Court heard a petition filed by a social activist claiming to be Aruna’s friend to the plea for euthanasia. The Court dismissed the petition but in its landmark judgment it permitted passive euthanasia, i.e. withdrawl of life support to a person in a permanently vegetative state, subject to the High Court approval.
In Hussainara Khatoon v. State of Bihar, the inhuman and barbaric conditions of prisoners under trial reflected in the articles published in the newspaper. Many inmates who were being tried have served the maximum persecution without being charged for the offence. An advocate pursuant to Article 21 of the Indian Constitution has filed a petition in writing. It was accepted by the apex court and held that the right to speedy trial is a fundamental right and directed the state authorities to provide free legal facilities to the inmates under trial so that they can obtain justice, bail or final release.
In Sheela Barse v. State of Maharashtra, a letter written by a journalist was sent to the Supreme Court avouching the custodial violence of women prisoners in jail. The court treated that letter as a written petition, and acknowledged the matter and issued the apposite guidelines to the state authorities concerned.
In Sunil Batra v. Delhi Administration, the court had exercised its epistolary jurisdiction and a letter written by a prisoner was treated as a petition. The letter presumed the head warden had inflicted pain atrociously and assaulted another prisoner. The Court said the technicalities could not stop the court from protecting the individual’s civil liberties. Some instances when the judicial activism mechanism turned to overreaching the judiciary. India’s parliament has held the Judiciary accountable or accused for intervening and exceeding its constitutional powers.
Maneka Gandhi v. Union of India, in this case the Supreme Court restored the faith of the citizen in the justice system. The three landmark judgments depicted a great change in the judiciary’s thinking process and set the stage for the introduction of Judicial Activism.
Not only did the Supreme Court broaden the meaning of “personal freedom”, but it also adopted the theory of “due process” in “law-setting procedure”. The court acknowledged that when a law restricts personal freedom, a court should consider whether the restriction on personal freedom also imposes restrictions on any of the rights conferred by Article 19. In addition to those referred to in Article 19, the Court held that personal liberty includes “a variety of rights which constitute the personal liberty of man,” and that one such right included in “personal liberty” is the right to go outside. According to the “audi alteram partem” theory, the court also held that impounding the passport of Mrs. Gandhi without giving her a hearing violated procedure established by law. These were principles of natural justice and procedural fairness. Before their passport was impounded, the court had to decide whether Mrs. Gandhi was entitled to a hearing. It was resolved that the impounding was UNCONSTITUTIONAL AND VOID, as there was no post-decisional hearing.
Among the fundamental rights, the most frequently invoked articles 14,19 and 21 of the Constitutional, which composes the “golden triangle,” declare invalid legislation or arbitrary state action. Whether the right to travel abroad formed a right to personal freedom under Article 21 was in conflict in this particular case. The Supreme Court departed from the stereotyped notion and held that under the Constitution, fundamental rights form an integrated scheme. Highlighting the need for a holistic reading of Part III of the Constitution, the SC said that it was not exempted from the operation of other fundamental rights by the mere fact that a law fulfilled the requirements of one fundamental right.The majority of the seven judge bench stated that any proceedings established by law pursuant to Article 21 would have to be “fair, just and reasonable,” and differed from the Satwant Singh case by establishing that an arbitrary law will not be considered even in the presence of a law. After this judgment, the Supreme Court became the constitution’s watchdog, instead of supervisors.
The concept of judicial activism has positive as well as negative aspects. The role of Judicial Activism cannot be negated or overlooked, as it played a significant role in bringing justice to the underprivileged sections of society, indigent individuals, backward classes socially and educationally, victims of trafficking, and prisoners under trial. Only with the advancement of judicial activism could proper implementation of fundamental rights become possible. At times, the judiciary intervenes too much in the process of judicial activism and reflects its personal beliefs in the course of delivering justice. The interpretation of law, which is the primary function of the judiciary but of the courts rather than the interpretation of the law, begins to make the law, to issue guidelines and directions that the legislature is to make.
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Author Details: N. Venkata Padma Anuhya (GITAM School of Law)