Acknowledgement

I would like to express my special thanks of gratitude to my

teacher Dr. Vinod Kankar, who gave me the golden
opportunity to do this wonderful project of Judicial Process
and Law and Legal Theories on “ Analytical Study on Judicial
Activism ” who also helped me in completing my project.

I came to know about so many new things I am thankful to

him. Secondly, I would also like to thank my parents and
friends who helped me a lot in finalizing this project within
the limited time frame.

Abhishek Singh Kaurav

2nd Semester
LL.M.
 Declaration
We take this pleasure in expressing our self in deep since of
gratitude to our self of gratitude to our esteemed institution
of “M.L.B. govt. college of Excellence Gwalior M.P”.
We prepare this assignment under the supervisions of
exorbitantly revered teacher “Dr. Vinod Kankar”
Associate professor we are very thankful to his guidance.
We are very predominantly thankful our gracious and
graceful teachers” for providing us an exquisite privilege.
We are apologies for any constrains. We the complete reverie
while preparing this assignment took with knack of group
member. We strived to make it fascinated.

Yours Faithfully,
Abhishek Singh Kaurav
2nd Semester
LL.M
 CERTIFICATE

This is to certify that Mr. Abhishek Singh Kaurav student of M.L.B

Government College of Excellence pursuing 1st Semester in LL.M
has submitted his assignment based on “ Judicial Process and Law
and Legal Theories ”. His pure dedication towards “ Analytical
Study on Judicial Activism ” is appreciable under all circumstances.
He has completed his work sincerely and honestly under my guidance.

“ I wish him a successful future. ”

Place : Gwalior

Date Dr. Vinod Kankar

Associate Professor

MLB Govt. College of Excellence

Gwalior, Madhya Pradesh
 INDEX
CONTENT PAGE NO.

Introduction 1.

Historical background 4.

Judicial Activism 7.

Judicial Activism in Indian Constitution 18.

Judicial Pronouncements 28.

Criticism 31.

Conclusion and Suggestions 34.

 CHAPTER 1

Introduction

The term “Judicial Activism” is defined by various scholars in different

ways.
According to Merriam-Webster’s Dictionary of Law 1, judicial activism
is -
“the practice in the judiciary of protecting or expanding Individual
rights through decisions that depart from Established precedent or
are independent of or in Opposition to supposed constitutional or
legislative Intent”. 2
Whereas according to Black’s Law Dictionary2, judicial activism is –
“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
ignorePrecedent.”3
Now a days “judicial activism” is passing through an intense ongoing
debate. Some of the intellectuals have pointed out that the judgments
glorified as activist Judgments should not be called as judicial activism.
According to them, the Indian Judiciary has not been actually an
‘activist’ at any time since independence. In fact, by Delivering these
so called activist judgments which are known as judicial activism in
Such the Indian Judiciary has done nothing extra ordinary. Actually
judiciary Delivered the judgments as per the powers conferred upon

1 Merriam Webster; Newest Edition (1 April 2016)

2 Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary.

1|Page
them by the Constitution Itself. It is bounden duty of any Court to
deliver the judgments as per the Law.
Judiciary got its constitutional strength in terms of its special power of
judicial review3 To check and contain the excesses power of other two
wings of the government.
It also Managed to establish its constitutional ascendancy in terms of
possessing its sole Discretionary right in progressive interpretations of
law. As a result one can witness The changing role of judiciary in Indian
polity since independence. In fact, the Perceptible change in the role
of Indian judiciary over the years has also created great political ripples
in the entire system of governance and the concept of social justice.

One can broadly identify these specific changes that are associated
with judiciary From the 1980s onwards. The decade of the eighties also
presents a paradox in terms Of the debate between the growing trends
of activism and assertion of the judiciary.

The great contribution of judicial activism in India is that it has

provided a Safety valve in a democracy and a hope that justice is not
beyond reach. The issue of Judicial activism is very delicate issue which
needs to be addressed cautiously.

In Indian democracy, the Judiciary, along with the Executive and

Legislature, plays a vital role. Its function has evolved beyond
interpretation to molding the law, reflecting societal changes through
judicial activism.

3Judicial review is a process under which a government’s executive, legislative, or administrative actions are
subject to review by the judiciary.

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Recent judgments, notably by the Supreme Court, have expanded
fundamental rights not expressly mentioned in the Constitution.
Despite criticism of judicial overreach, these developments are viewed
as essential for protecting citizens’ rights and ensuring a balance of
powers.
The judiciary’s role in judicial review, particularly in striking down laws
that violate fundamental rights, is crucial for maintaining the
separation of powers.
Public Interest Litigation (PIL) 4 has become a powerful tool for
ensuring accountability and protecting the rights of marginalized
groups.
However, respect for the judiciary’s independence and dignity remains
paramount, and any attempt to scandalize or undermine its authority
must be avoided, especially concerning its interaction with the media.
Overall, the judiciary’s role in upholding the rule of law and ensuring
justice is integral to India’s constitutional framework.

4 The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna Iyer, in 1976
in Mumbai Kamagar Sabha vs. Abdul Thai.

3|Page
 CHAPTER -2
Historical background

The Judicial activism is a concept that originated in the US in 1947. It

has been seen in India since the Emergency days.
The theory of judicial activism emerged during the judicial review
process in the United Kingdom. The British Constitution is an example
of an unwritten constitution that allows for judicial activism. During
Stuart’s reign (1603-1688), the unwritten constitution created the
possibility of judicial review, and thus judicial activism was born.

The first significant case involving the idea of judicial review was
Madbury v. Madison (1803)5, in which the US Supreme Court explicitly
declared certain provisions of the Judiciary Act of 1801
unconstitutional. For the first time in American history, a court
declared a piece of legislation to be unconstitutional. Since the
Supreme Court ruled that federal courts have the authority to
invalidate unconstitutional laws, judicial review has gained popularity
in the United States.

However, the exact phrase “judicial activism” was used by Arthur

Schlesinger Jr. in his article “The Supreme Court: 1947,” which
appeared in the January 1947 issue of Fortune Magazine. He used the
phrase to categorise the American Supreme Court judges at that time
as judicial activists, champions of self-restraint, and judges positioned
in between the two sections.

5Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark decision of the U.S. Supreme Court that established
the principle of judicial review

4|Page
Further, the American judiciary used the power of judicial review to
usher in the era of judicial activism in 1954, with the landmark case of
Brown v. Board of Education (1954) 6, where the US Supreme Court
ruled unanimously (9-0) that racial segregation in public schools
violated the Fourteenth Amendment to the Constitution, which
forbids states from depriving anyone within their jurisdictions of equal
protection under the law. Furthermore, the Supreme Court in the case
of Plessy v. Fergusson 7 not only abolished laws that treated Black
people as a separate class but also guaranteed such rights that were
clearly provided for in the Constitution.

The term “judicial activism” was l”ter used on numerous occasions,

but the first time a judge used it in a court was in the case of Theriot v.
Mercer in 1959. In a related case, Judge Joseph C. Hutcheson used it
to oppose a dissenting judgement. He was opposed to judicial activism
and the outcomes it sought. The usage also made reference to the shift
in connotation that took place in the middle of the 1950s. Some judges
viewed the term “judicial activism” as an encroachment.

Furthermore, the ability to engage in judicial activism became a

requirement for the existence of an independent judiciary in nations
that upheld the rule of law, and other modern democracies quickly
followed, giving rise to the concept of judicial activism.

Lord Hewart, CJ, who is famous for saying, “It is fundamentally

important that justice not only be done but also be clearly and
undeniably seen to be done,” gave rise to the concept of judicial
activism, which manifested itself in the decisions of numerous so-

6U.S. Supreme Court ruling that U.S. state laws establishing racial segregation in public schools are
unconstitutional, even if the segregated schools are otherwise equal in quality.

7 1896

5|Page
called “activist” judges. They have been held accountable for bringing
justice to the doorsteps of the citizens, even if it means taking
unwarranted and unnecessary measures. By stretching the letter of
the law a little and acting according to the spirit behind it, the judiciary
has intervened in cases where there is a blatant misuse of executive
discretion or an unconcerned attitude toward booking the corrupt and
other anti-social elements in society.

Under the Indian Constitution, the State has the primary responsibility
for ensuring the country’s justice, liberty, equality, and fraternity8. The
State is obligated to protect the fundamental rights of individuals and
to implement the Directive Principles of State Policy. To prevent the
state from evading its responsibilities, the Indian Constitution has
granted the Court’s inherent powers to review the state’s actions. In
this context, the Indian judiciary has been regarded as the protector
and guardian of the Indian Constitution. The idea of judicial activism
has been around far longer than the Term. 3 Before the twentieth
century, legal scholars squared off over the Concept of judicial
legislation, that is, judges making positive law.

8 Preamble Of Indian constitution.

6|Page
 CHAPTER - 3
Judicial Activism
The concept of “judicial activism” is opposed to the idea of “judicial
restraint.” Both of these terms are frequently used to describe the
assertiveness of judicial power, and they are also used from the
perspectives of personal and professional views, putting the courts in
a position to lean towards one of the views to play the appropriate
role. The terms “judicial activism,” “judicial supremacy,” “judicial
absolutism,” “judicial anarchy,” and others are frequently used
interchangeably in the United States. The term “judicial activism” is
also regarded as ascriptive. This implies that the judges’ performance
is based on their ideologies, opinions, values, and interests.

The scope of judicial activism is so broad that no precise definition

exists. It does not have a statutory definition because each jurist or
scholar defines it differently. Supporters of judicial activism claim it to
be a proper form of judicial review. In contrast, Thomas Jefferson
refers to it as the ‘despotic power’ of Federal Judges.

According to V.D. Kulshrestha, judicial activism occurs when the

judiciary is charged with actually participating in the law-making
process and subsequently emerges as a significant player in the legal
system.

I. Judicial Activism Methods

Judicial activism refers to judges interpreting and using the law in a

way that goes beyond what is written and what has been done before.
They actively shape public policy with their decisions.

7|Page
Here are some common ways judges engage in judicial activism:

II. Broad Interpretation of the Constitution

Some judges interpret the constitution broadly, considering how

society and culture have changed. They focus on the principles and
values of the constitution, not just what the framers originally meant.

III. Creative Statutory Interpretation

Judges may interpret laws creatively to address current social issues.

They may stretch the law’s wording. They might also use techniques
like purposive interpretation to achieve desired outcomes.

IV. Expansion of Constitutional Rights

Activist judges may expand constitutional rights beyond what they

were initially known to be. They might identify new rights or make
existing ones broader. By this, they safeguard marginalized groups or
tackle fresh social issues.

VI. Judicial review and striking down laws

Activist judges review laws made by the government to see if they

follow the Constitution. They try to get rid of laws that they think
violate constitutional rights or principles.

VII. Policy-Based Reasoning

Judicial activism often refers to the following:

8|Page
 • Judges making decisions to support specific policy goals or
• Judges making decisions to fix perceived social injustices.

They think about the wider impact and results of their decisions. It is
not just about the specific case they are working on.

VIII. Public Interest Litigation

Judges encourage public interest litigation. Here individuals or

organizations bring cases to advocate for social or policy changes. Thi
lets judges get involved in matters that might not have gone to court
before. This makes a bigger impact on policies and social issues.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their
own personal feelings into a conviction or sentence, instead of
upholding the existing laws. For some reason, every judicial case has
a base of activism within it, so it is imperative to weigh the pros and
cons to determine the aptness of the course of action being carried
out.
Pros associated with Judicial Activism India

• Judicial Activism sets out a system of balances and controls to

the other branches of the government. It accentuates required
innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial
Activism allows judges to use their personal judgment.
• It places trust in judges and provides insights into the issues.
The oath of bringing justice to the country by the judges does
not change with judicial activism. It only allows judges to do
what they see fit within rationalised limits. Thus, showing the
instilled trust placed in the justice system and its judgments.

9|Page
 • Judicial Activism helps the judiciary to keep a check on the
misuse of power by the state government when it interferes
and harms the residents.
• In the issue of majority, it helps address problems hastily where
the legislature gets stuck in taking decisions.
Cons Associated with Judicial Activism

• Firstly, when it surpasses its power to stop and misuse or abuse

of power by the government. In a way, it limits the functioning
of the government.
• It clearly violates the limit of power set to be exercised by the
constitution when it overrides any existing law.
• The judicial opinions of the judges once taken for any case
becomes the standard for ruling other cases.
• Judicial activism can harm the public at large as the judgment
may be influenced by personal or selfish motives.
• Repeated interventions of courts can diminish the faith of the
people in the integrity, quality, and efficiency of the
government.

Evolution of judicial activism in India

In the early years after independence, India’s courts were technocratic

in nature. Although the goal of justice did not always coincide with this
fundamental aspect of how courts functioned, the judiciary was more
concerned with following the procedures that were expected of it. To
put it another way, the majority of judges at the time were not as
creative and did not bother to look for ways to carry out the goal of
justice for which they held their positions. Some judges in the British
Empire and a newly independent India went out of their way to issue
decisions that are now regarded as foundational examples of judicial
activism.

10 | P a g e
The beginning of judicial activism can be traced back to 1893 when
Justice Mehmood of the Allahabad High Court issued a dissenting
decision that sowed the seeds of activism in India. The case involved
an undertrial who couldn’t afford legal representation. In his dissenting
opinion, he criticised the rule that appeals should be dismissed solely
on the basis that the appellant is unable to pay for the translation and
printing of the record in English. This amounted to some form of
activism meant to defend the severely harmed undertrials. Although it
didn’t sit well with the English judges on the bench, J. Mahmood was
forced to resign for using these tactics in court.

Furthermore, the concept of judicial activism in India gained more

traction in the late 1960s or early 1970s, when Mrs. Indira Gandhi
served as Prime Minister and Mohan Kumaramangalam, a renowned
attorney and legal luminary, served as the Union Minister. In order to
better serve the interests of the poorer sections of society, the late
Mrs. Gandhi attempted to put into practice her favourite slogan,
“Garibi Hatao” (remove poverty), by abolishing the privy purses and
privileges granted to the former rajas and princes of the princely States
of pre-independent India and nationalising the 14 major banks.
However, the conservative judiciary took it personally and overturned
her attempts.

Mrs. Gandhi responded strongly and unequivocally, viewing the

Supreme Court of India’s ruling in the Privy Purse abolition and bank
nationalisation cases as an example of judicial overreach 9 . On the
recommendation of Mr. Kumaramangalam, it is believed that the
conservative and senior Supreme Court justices who participated in
the majority decisions in the aforementioned cases were passed over
for appointment to the position of Chief Justice of India. The
appointment of the dissenting judge, Mr. A.N. Ray, who was fourth in

9When the judiciary starts interfering with the proper functioning of the legislative or executive organs of the
government

11 | P a g e
the line of seniority, led to the resignation of the three senior judges
(Justices Hegde, Shelat, and Grover). This served as the foundation for
the theory of judicial activism, which emerged as a result of the conflict
between the executive and the judiciary.

Instances of the Judiciary had Taken the Task of the Other

Wings:

The researcher focuses on the few instances in which the judiciary had
taken The task of the other wings of the governments in
implementation, in law making and No doubt in interpreting the laws
within the constitutional framework of the Constitution of India
through issuing the writ jurisdiction. The researcher had Discussed the
detailed case law in next chapter of the thesis. The following instances
Of the Pro- active role performed by the judiciary.

I. Compressed Natural Gas Decision:

In the CNG decision10, the Supreme Court may be applaudable in its

Effect, but are these not the issues of the Legislature. The order clearly
reflects Transgress of the judiciary into the domain of the legislature
with the help of Public Interest Litigation.

II. Implementation of the Forest Legislation:

Under the guise of implementation of the forest legislation, the court

Has appointed committees which have now become ‘maharajas’ of the
forest Us throughout India. Their work is unpredictable and the effects
indeed Devastating. And also, the ministers are wary of their own
government officers Serving on Supreme Court committees.

10 MC Mehta v Union of India

12 | P a g e
III. Enforcement of Planning Laws:

One might even fail to understand why and how the lapses in the
Enforcement of planning laws in Delhi should fall under the direct
supervision Of the Supreme Court. This is a clear case of trespass in
the functioning area of The executive.

V. Cleaning up of the Yamuna and the Ganga:

A few ago, the court had also thrown out a large number of industries
without the statutory law on the subject. And in a King Canute gesture,
the court has commanded the cleaning up of the Yamuna and the
Ganga. It has also prohibited habitations within 300 meters from
Yamuna. This is the spark of the judicial dictatorship.

VI. Formula Devised by the Court:

In forest cases, levies running into crores have been imposed on a

formula devised by the Court itself and entrusted to a fund created by
it again. Surely, these are matters of no one but the Legislature.

VII. Created New Extra-Constitutional Institutions:

In 2006, in the Police case11, the Supreme Court has created new extra-
constitutional institutions who have virtually taken over the
administration of the police especially in service and operational
matters contrary to the existing laws, rules, regulations and orders.
This has resulted in a situation of power without responsibility with
the Supreme Court.

11 Prakash Singh Case: 2006 SC ruling on Police Reforms

13 | P a g e
VIII. Seriously Transgressed into the Autonomy of the
Jharkhand and the UP state legislatures:

Both in 1999 and 2005, the Supreme Court seriously transgressed into
the autonomy of the Jharkhand and the UP state legislatures by
ordering them to follow certain procedures in internal affairs
constitutionally entrusted exclusively to the legislature. Examples can
be multiplied. And the result will be that there is no consistency in
approach because there are no set rules to be followed. Approach and
Attitudes may vary from judge to judge.

Judicial restraint

The growing number of cases involving judicial overreach sparked a

debate about judicial restraint as a preventive measure. Judicial
restraint stands in contrast to judicial activism and overreach.

Judicial restraint is a judicial decision-making philosophy in which

judges avoid indulging in their personal beliefs about the public good
in favour of merely interpreting the law as legislated and according to
precedent. The fundamental concept underlying judicial restraint is
that the will of the people is best expressed through legislative bodies
and that people should bear the consequences of their political
choices. Policies are bound to change when the government changes.
And with their decision, judges should abstain from establishing new
policies.

To preserve the delicate balance of power among the various branches

of democracy, the Supreme Court has repeatedly emphasised the
significance of judicial restraint.

14 | P a g e
In the case of Minor Priyadarshini v. the Director of Elementary 12 ,
Justice Markandey Katju stated, “Under the Constitution, the
legislature, the executive, and the judiciary each have their own broad
spheres of operation. If any of these three state bodies ventures
outside of their respective jurisdictions, the Constitution’s delicate
balance will be upset. Therefore, the judiciary must use restraint and
repress the desire to act as a super-legislature. It will only increase its
own respect and reputation by exercising restraint.”

In the well-known case of S.R. Bommai v. Union of India13, the Court

determined that there can be no judicial review when there is a high
level of political interest involved and that the judiciary should not get
involved.

Difference between judicial activism, restraint and

overreach

I. Judicial activism

Judicial activism is the term for the judiciary’s proactive role in

defending the rights of citizens. Judicial philosophy drives judges to
reject established precedents in favour of innovative and progressive
social policies.

II. Judicial restraint

Judicial restraint is the exact opposite of judicial activism. It is a theory

of judicial interpretation that urges judges to restrain their power. As a
procedural theory, the idea of restraint urges courts to hold off on
12 2016
13 1994

15 | P a g e
making decisions on legal matters, especially constitutional ones,
unless the decision is necessary to settle a particular dispute between
opposing parties. It encourages courts debating constitutional matters
to accord the elected branches considerable credibility and to only
reject their acts when they violate the constitution.

III. Judicial overreach

Judicial overreach is the term used when judicial activism turns into
judicial adventurism. This type of activism involves frequent, arbitrary,
and unjustified intrusions by the judiciary into legislative affairs. By
doing this, the judiciary goes beyond its authority, risks interfering with
the legislative or executive branches of government, and goes against
the spirit of the separation of powers.

Transformation from activism to overreach

Parliament has frequently charged the judiciary with judicial

interference. The judiciary is acting outside of its constitutional
authority, according to the parliament. Judicial activism that goes
beyond all justifiable limits is referred to as “judicial overreach.”
Judicial overreach occurs when the courts arbitrarily, excessively, and
repeatedly intrude into the domain of the legislature and the
executive.

Although the differences between judicial activism and overreach are

subtle, their effects on society are completely different. Contrary to the
requirement of judicial activism, the intention of judicial overreach is
not genuine. Overreach impedes the functioning of a healthy
democracy’s institutions.

16 | P a g e
According to CJ J S Verma, “Judicial activism is appropriate when it is in
the realm of legitimate judicial review. There shouldn’t be any judicial
tyranny or ad hocism.”

In April 2007, in New Delhi, Dr. Manmohan Singh spoke at a conference

of Chief Ministers and Chief Justices of the High Court. He said, “Courts
have played a salutary and corrective role in countless instances. Our
people hold them in the highest regard for that. In addition, it is
difficult to distinguish between judicial activism and overreach.” This
statement sparked broader discussions about judicial accountability in
India.

The judiciary has no justification for exercising restraint. In the case of

Divisional Manager, Aravalli Golf Course v. Chander Hass 14 , the
Supreme Court ruled that judges should not overstep their authority
and should not attempt to seize control of the government. Each
branch of government, including the legislature, executive, and
judiciary, must respect the separation of powers and refrain from
meddling in the affairs of the others.

The court emphasised that “judicial activism” should not be mistaken

for “judicial adventurism,” noting that “judicial intervention,” “judicial
encroachment,” and “judicial activism” are frequently justified by the
argument that the legislature and executive are not carrying out their
duties properly. The judiciary is no exception to this rule, with cases
pending in various courts for more than fifty years. To maintain a
healthy balance of power among the three branches of government,
the courts should exercise a certain amount of restraint.

14 2007

17 | P a g e
 CHAPTER - 4
JUDICIAL ACTIVISM IN INDIAN
CONSTITUTION

I. Constitutional powers of the Supreme Court and High

Courts in India

Judicial activism is the practice of using the courts’ authority to

examine state actions. According to Articles 32 and 226 of the Indian
Constitution, the higher judiciary has the power to consider any
legislative, executive, or administrative action as unconstitutional and
void if it does so. One of the core provisions of the Indian Constitution
is the right to judicial review.

II. Article 32 of the Indian Constitution

Article 32 of the Indian Constitution provides that every person has the
right to directly file a case with the Supreme Court of India for the
enforcement of their fundamental rights. Any fundamental right under
Article 3215 may be enforced by an order or writ issued by the Supreme
Court.

The Supreme Court held in Fertilizer Corporation Kamgar Union v.

Union of India16 that the Supreme Court’s authority granted by Article
32 is an important part of the fundamental framework of the Indian
Constitution because “it is meaningless to confer fundamental rights
without providing an effective remedy for their enforcement, if and
when they are violated.” It cannot be suspended, even in an

15 Individuals have the right to approach the Supreme Court (SC) seeking enforcement of other fundamental
rights recognised by the Constitution.
16 1981

18 | P a g e
emergency. In many cases, the Supreme Court has increasingly used a
very liberal interpretation of Article 32 to uphold fundamental rights
even when faced with private entities performing public duties.

III. Article 226 of Indian Constitution

Article 226 of the Indian Constitution provides that the High Courts
have the power to issue any suitable order or writ for the enforcement
of basic rights and other legal rights. In this case, it appears that the
High Court’s jurisdiction under Article 226 goes beyond the Supreme
Court’s jurisdiction under Article 32. Articles 32 and 226 form the
foundation of the Indian Constitution. Furthermore, the High Court
was also granted authority over lower courts, tribunals, and special
courts by Article 227.

IV. Article 136 of the Indian Constitution

In addition, the Supreme Court may grant special leave to appeal any
judgment, decree, determination, sentence, or order made by any
court or tribunal in any cause or matter under Article 136 17 of the
Indian Constitution. In situations where there has been grave injustice
or there is a significant legal issue, the Supreme Court uses its unique
authority.

With the discretionary authority provided by Article 136, a case may

be decided in accordance with justice, equity, and good conscience.
However, it needs to be used carefully and with caution. In Pritam
Singh v. the State (1950)18, the Supreme Court ruled that the broad
discretionary power granted by Article 136 should only be used in
exceptional circumstances.

17 Special leave to appeal by the Supreme Court.

18 The judgment of the Court was delivered by FAZL AL/J.

19 | P a g e
Additionally, the Supreme Court created the idea of the curative
petition in the case of Rupa Ashok Hurra v. Ashok Hurra (2002), while
debating whether an aggrieved person has any right to relief even
after the Supreme Court’s final decision.

V. Article 142 of the Indian Constitution

Article 142 of the Indian Constitution, which gives the Supreme Court
the authority to issue an order to ensure full justice in the case at hand,
is the most significant provision in relation to judicial activism. The
Supreme Court’s decision in M Siddiq (D) Thr Lrs v. Mahant Suresh Das
and Ors (2019)19, also known as the Ram Janmabhoomi/Babri Masjid
case, overturned the Allahabad High Court’s (2010) ruling in
accordance with Article 142 of the Indian constitution, is an illustration
of such an order.

The Supreme Court of India has the authority to enact laws under
Article 142 of the Indian Constitution, despite the fact that the
Parliament of India retains the primary authority to do so. The order
will be in effect until Parliament passes legislation to address the
problem, but it should be noted that this Article can be invoked when
there is a gap in the law or the order is in the public interest.

Notable forms of judicial activism

I. The invention of Public Interest Litigation

Judges like V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and D A
Desai supported judicial activism and issued numerous decisions
addressing people’s fundamental rights. It is frequently claimed that
the development of public interest litigation and the ensuing
liberalisation of the Locus Standi rule are the roots of judicial
activism. PIL was conceived with the noble goal of empowering the
19 Ayodhya Title Dispute

20 | P a g e
oppressed, poor, and needy by ensuring justice for them by relaxing
the rigour of Locus Stand20i.

Since the 1970s, the Supreme Court has accepted genuine cases even
from people who are not affected. Public Interest Litigation
encompasses situations in which the general public interest has been
violated or harmed as a result of official indifference and the decisions
made in these cases fall under the umbrella of judicial activism. PIL
guarantees justice for a larger group of people who do not have access
to it. In India, social activists and public interest litigators have actively
supported the higher judiciary in advocating measures to ensure the
welfare of the oppressed, underprivileged, and exploited classes.

The judiciary has evolved into a reformer with the ability to influence
socioeconomic situations. The PILs provide an overview of how
proactive Indian courts work to change society. So far, the Supreme
Court has considered the issue and the rights of children and women,
oppressed and vulnerable groups in society, bonded labour, casual
labour, mentally and physically handicapped, undertrial prisoners,
detainees, and convicted persons held in custody, and so on.

Judicial decisions on PILs

1. The practice of taking matters of public importance directly to

the Supreme Court began with the case of Maharaj Singh v.
State of Uttar Pradesh (1976). In this case, the court agreed
that a lack of legal standing would not be sufficient to dismiss
a case where harm had been done to the community. The term
“PIL” was first used by Justices Iyer and Bhagwati in the
Fertilizer Corporation Kamgar Union case. The Court’s decision
also referred to petitions that were submitted in the form of
letters as having epistolary jurisdiction.
2. In Hussainara Khatoon v. State of Bihar (1979), a petition was
filed with the Supreme Court in response to newspaper
20 The right or capacity to bring an action or to appear in a court.

21 | P a g e
 articles about the circumstances surrounding undertrials in
prison. Some of the defendants had already served more time
than was permitted for the crime for which they were
detained. The cases were pending for years before an
overburdened judiciary, and those on trial were unable to
obtain bail because they did not have enough money to pay as
bonds and sureties. As a writ, the petition was approved. If
they were unable to raise the required bail sum, Justice
Bhagwati and the other judges on the bench mandated their
release on personal bonds. They claimed that a speedy trial
was a fundamental right that couldn’t be restricted due to
money. The right to unrestricted access to legal representation
is part of the court’s ruling on both the right to life and the
right to personal liberty. With this ruling, the judicial system
fixed a flaw, and thousands of people facing such undertrials
have been granted bail since then.
3. The court in SP Gupta v. Union of India (1982) also
acknowledged the disadvantageous circumstances facing
many citizens and ruled that anyone with sufficient interest
and a sincere intention could petition the court on their behalf.
They argued that the court would treat letters as writ petitions
and proceed accordingly and that procedures are nothing
more than the handmaidens of justice and cannot be rejected
solely for technical reasons.
4. The Supreme Court ruled in People’s Union for Democratic
Rights v. Union of India (1982) that public interest litigation is
distinct from the conventional adversarial justice system. The
court claims that the goal of public interest litigation is to
advance the public good. Public interest litigation was created
to provide justice to the poor and other socially or
economically disadvantaged members of society. Such a large
number of people’s constitutional or legal rights should not go
unnoticed.

22 | P a g e
II. The Basic Structure Doctrine
In addition to creating procedural techniques, the Supreme Court’s
activism has enriched jurisprudence with pioneering concepts like the
basic structure doctrine. According to this, any amendment that alters
the basic structure of the Constitution is unconstitutional.

The Supreme Court ruled in Kesavananda Bharati v. the State of

Kerala21 that the power to amend the Constitution guaranteed by the
Constitution did not include the possibility of amending the most
fundamental and essential elements of the Constitution. The
Constitution’s underlying framework cannot be altered by any
amendment. The majority defined the fundamental elements of the
constitution as the rule of law, secularism, federalism, equality, and
democracy.

Following the Keshavananda Bharati ruling, the Supreme Court

invalidated a number of Constitutional Amendments, putting their
fundamental test of basic structure. The 39th Amendment was
declared unconstitutional by the court in Indira Nehru Gandhi v. Raj
Narain (1975) because it sought to uphold Mrs. Gandhi’s election after
it had been declared invalid by the Allahabad High Court and while her
appeal was still pending before the Supreme Court.

In Minerva Mills Ltd. v. Union of India22, the Supreme Court ruled that
Parliament had expanded its limited power of amendment contained
in Article 368 into absolute power.

In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court determined

that paragraph seven of the Constitution’s 10th Schedule, which
prohibited judicial review of the Speaker’s or Chairperson of the

21 1973
22 1980

23 | P a g e
House’s decision regarding the disqualification of MLAs or MPs,
violated the basic structure of the Constitution.

By developing the basic structure doctrine, the Supreme Court

ensured that at least some fundamental rights of the underprivileged,
minorities and weak cannot be curtailed by the Constitution, not even
through Constitutional Amendments.

III. Article 21 and judicial activism

If there is a Supreme Court decision that has revolutionised the
interpretation of Article 21, which safeguards the right to life and
personal liberty, it is Maneka Gandhi v. Union of India (1978) 23. This
decision has awakened the Indian judiciary from a persistent state of
dormancy with regard to the right to life and the freedom of the
individual guaranteed by Article 21 of the Constitution.

A new interpretation of Article 21 of the Indian Constitution was

provided by the Supreme Court of India in the case of Maneka Gandhi
v. Union of India. It set a great precedent for the further evolution of
concepts of reasonableness and fairness. According to the Supreme
Court, the concept of life encompasses not just a mere animal
existence but also an existence with all the rights that entails. The
Supreme Court declared for the first time that simply outlining a
process for denying life and liberty is insufficient; the process itself
must be just and reasonable.

List of Variety of Rights in Article 21 of the Constitution :

1 Right to travel abroad.

2 Right to live with human dignity.

23 The Court significantly expanded the interpretation of Article 21 of the Constitution of India.

24 | P a g e
3 Right to livelihood.

4 Right to shelter.

5 Right to privacy.

6 Right to health and medical assistance.

7 Right to member of protective homes.

8 Right to die is not a fundamental right.

9 Right to get pollution free water and air.

10 Right to education.

11 Right to free legal aid.

12 Right against solitary confinement.

13 Right to speedy trial.

14 Right against handcuffing.

15 Right against inhuman treatment.

16 Right against delayed execution.

17 Right to food starvation death.

18 Right to electricity.

To protect the rights of millions of people who lack access to justice,

Article 21 of the Constitution was expanded to include a broader
definition of life, personal liberty, and “procedure established by law.”

25 | P a g e
It actively denounced the abuse of power and inaction on the part of
public officials as it fought for the interests of the average citizen. A
few cases are as follows:

In the case of P. Rathinam v. Union of India (1994), the Court was

asked whether the right to die falls under the purview of the right to
life. The majority of the Bench found that it does, and Section 309 of
the Indian Penal Code was ruled invalid and unconstitutional. This was
overruled in the case of Gian Kaur v. State of Punjab (1996)24, where
the Court ruled that while Article 21 does include the right to die with
dignity, the right to life does not include the right to die and that
committing suicide is punishable under Indian law. Furthermore, the
Supreme Court determined that passive euthanasia is covered by the
definition of the right to life under Article 21 in one of the most well-
known cases, Common Cause (A Regd. Society) v. Union of India
(2018).

IV. The pro-environmental stance of the judiciary

The Indian judiciary has taken an active role in protecting the
environment for the benefit of the population. Given that a pollution-
free environment was deemed to be a fundamental right pursuant to
Article 21 of the Constitution, the Indian judiciary deserves all the
credit for sustainable development and environmental protection.
The courts have decided on a number of historic rulings requiring
public bodies to address environmental issues.

One of the judiciary’s most crucial tools was Public Interest

Litigation. Several cases involving environmental protection,
preservation, and sustainability have been handled through PIL,
making environmental protection a constitutional duty and obligation.
The principles and doctrines that have enriched environmental

24They were sentenced to six years imprisonment and fine of Rs. 2,000/- for abetting the suicide by Ms.
Kulwant Kaur.

26 | P a g e
jurisprudence have steadily grown as a result of PIL cases and the
accompanying activist approach of the judiciary.

V. Women empowerment
The role of judicial activism extends beyond the aforementioned
forms. Another area where this has been seen is in women’s
empowerment. The judiciary has made significant progress in
preventing workplace exploitation of women and improving
conditions for women.

This was also made clear in the case of Air India v. Nargesh Meerza
(1981), where the Supreme Court ruled that the rule requiring an air
hostess to leave the workforce following her first pregnancy was
invalid, unconstitutional, and in violation of Article 14 of the Indian
Constitution.

In Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985), the
Supreme Court overruled Muslim Law and extended the period of
Iddat from four months and ten days to provide justice to Shah Bano
Begum.

In Vishakha v. State of Rajasthan (1997), the Supreme Court issued

guidelines for the prevention of sexual harassment cases under Article
32 read with Articles 141 and 142. These regulations from 1997 have
been replaced by the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act of 2013.

27 | P a g e
 CHAPTER - 5
Judicial Pronouncement

1. Privy Purse Case (Madhav Rao Jivaji Rao Scindia v.

Union of India, 1970)
The case revolved around the president’s authority to de-recognize princes
and abolish their petty purses. The Court ruled that executive power, as per
Article 53 of the Constitution, must be exercised “in accordance with the law”.
It could not be used to destroy the Constitution. The act of “de-recognizing”
rulers without providing for the continuation of their rule was declared illegal.

2. R C. Cooper v. Union of India (1970)

This case questioned the legislative competence of Parliament to enact the
Banking Companies (Acquisition and Transfer of Undertakings) Act, known as
the Bank Nationalization Act. The court struck down the Act due to its
unreasonableness, as it effectively made it impossible for the banks to carry
on any business.

The case revolved around the president’s authority to de-recognize princes

and abolish their petty purses. The Court ruled that executive power, as per
Article 53 of the Constitution, must be exercised “in accordance with the law”.
It could not be used to destroy the Constitution. The act of “de-recognizing”
rulers without providing for the continuation of their rule was declared illegal.

3. Golaknath v. State of Punjab (1971)

The case dealt with the constitutional validity of the 17th Amendment to the
Constitution and introduced the concept of “prospective overruling.” The
court held that Parliament could not amend Part III of the Constitution or
abridge fundamental rights.

This case questioned the legislative competence of Parliament to enact the

Banking Companies (Acquisition and Transfer of Undertakings) Act, known as
the Bank Nationalization Act. The court struck down the Act due to its
unreasonableness, as it effectively made it impossible for the banks to carry
on any business.

28 | P a g e
4. Keshavananda Bharti v. State of Kerala (1973)
The case focused on the extent of the amending power under Article 368 of
the Constitution. The court introduced the theory of the “basic structure,”
asserting that Parliament could amend the Constitution but not abrogate its
basic structure.

The case dealt with the constitutional validity of the 17th Amendment to the
Constitution and introduced the concept of “prospective overruling.” The
court held that Parliament could not amend Part III of the Constitution or
abridge fundamental rights.

5. Hussainara Khatoon v. State of Bihar (1979): A Turning

Point
The Supreme Court’s first PIL action addressed the plight of prisoners
awaiting trial who had languished in jails for extended periods.

The court issued directives to relieve these prisoners, marking the beginning
of PIL’s prominence.

The case focused on the extent of the amending power under Article 368 of
the Constitution. The court introduced the theory of the “basic structure,”
asserting that Parliament could amend the Constitution but not abrogate its
basic structure.

6. Sunil Batra v. Delhi Admin. (1980)

The Supreme Court delivered a historic judgment in the case of Sunil Batra vs.
Delhi Administration in 1978. The judgment expanded the scope of prisoners’
rights and laid down guidelines to prevent custodial torture and protect the
dignity of prisoners. The court recognized that prisoners, despite their
conviction, retained fundamental rights and should be treated humanely.

The case had a significant impact on prison reforms and the treatment of
prisoners in India. It led to the formulation of guidelines and directives to
safeguard the rights of prisoners, ensuring their protection from inhumane
treatment and torture.

The Supreme Court’s first PIL action addressed the plight of prisoners
awaiting trial who had languished in jails for extended periods.

29 | P a g e
The court issued directives to relieve these prisoners, marking the beginning
of PIL’s prominence.

7. Sheela Barse v. Union of India (1983)

Sheela Barse’s PIL addressed the deplorable conditions faced by women
prisoners, particularly those who were pregnant or had young children living
with them in jails. Her petition highlighted the lack of basic amenities,
inadequate healthcare, and the absence of facilities for children in prisons. She
sought the court’s intervention to improve the living conditions for
incarcerated women and their children.

The Supreme Court, in response to Barse’s PIL, issued several directives and
guidelines to ensure the protection of the rights of women prisoners and their
children. The court emphasized the need for better healthcare, nutrition,
education, and other essential facilities for both mothers and their children
living in jails.

The Supreme Court delivered a historic judgment in the case of Sunil Batra vs.
Delhi Administration in 1978. The judgment expanded the scope of prisoners’
rights and laid down guidelines to prevent custodial torture and protect the
dignity of prisoners. The court recognized that prisoners, despite their
conviction, retained fundamental rights and should be treated humanely.

The case had a significant impact on prison reforms and the treatment of
prisoners in India. It led to the formulation of guidelines and directives to
safeguard the rights of prisoners, ensuring their protection from inhumane
treatment and torture.

Judicial Activism and Environmental Jurisprudence

The growth of environmental jurisprudence in India owes much to PIL cases
and the judiciary’s activist approach. Fundamental principles and doctrines

30 | P a g e
emerged in this context, focusing on sustainable development and the
polluter-pays principle.

I. The Oleum Gas Leak Case

The Supreme Court expanded its authority under Article 32 and established
the doctrine of absolute liability for damages brought about by hazardous
industries. The court incorporated principles from international
agreements like the Stockholm Declaration25, the Rio Declaration, and the
Kyoto Protocol. Additionally, Fundamental principles such as “sustainable
development” took root in Indian environmental jurisprudence.

Sheela Barse’s PIL addressed the deplorable conditions faced by women

prisoners, particularly those who were pregnant or had young children living
with them in jails. Her petition highlighted the lack of basic amenities,
inadequate healthcare, and the absence of facilities for children in prisons. She
sought the court’s intervention to improve the living conditions for
incarcerated women and their children.

The Supreme Court, In response to Barse’s PIL, issued several directives and
guidelines to ensure the protection of the rights of women prisoners and their
children. The court emphasized the need for better healthcare, nutrition,
education, and other essential facilities for both mothers and their children
living in jails.

II. Narmada Bachao Andolan

The court ensured that dam construction did not harm displaced people’s
employment, shelter, or homes. State governments were directed to provide
rehabilitation before proceeding with development projects.

The Supreme Court expanded its authority under Article 32 and established
the doctrine of absolute liability for damages brought about by hazardous
industries. The court incorporated principles from international agreements
like the Stockholm Declaration , the Rio Declaration, and the Kyoto Protocol.

25 Adopted in 1972 and was the first UN declaration on the global environment.

31 | P a g e
Additionally, Fundamental principles such as “sustainable development” took
root in Indian environmental jurisprudence.

The Importance of Judicial Restraint

In maintaining the delicate balance of power in a democracy, the judiciary has
highlighted the need for judicial restraint. Justice Markandey Katju’s
perspective underscores the importance of maintaining a separation of
powers.

As per the judge, the judiciary, legislature, and executive each have distinct
spheres of operation under the Constitution. Judicial restraint is crucial to
preventing encroachment upon the domain of other branches and fostering
equality among them. He further opines that judicial restraint safeguards the
independence of the judiciary, preventing it from becoming embroiled in
political and administrative processes.

The distinction between judicial activism and judicial overreach is vital for the
effective functioning of a constitutional democracy. Recognizing and
maintaining this boundary ensures the separation of powers and the
supremacy of the Constitution.

32 | P a g e
 CHAPTER - 6 CRITICSM OF JUDICIAL ACTIVISM

Judicial activism has also faced criticism several times. In the name of
judicial activism, the judiciary often mixes personal bias and opinions
with the law. Another criticism is that the theory of separation of
powers between the three arms of the State goes for a toss with
judicial activism. Many times, the judiciary, in the name of activism,
interferes in an administrative domain, and ventures into judicial
adventurism/overreach. In many cases, no fundamental rights of any
group are involved. In this context, judicial restraint is talked about.

The court ensured that dam construction did not harm displaced
people’s employment, shelter, or homes. State governments were
directed to provide rehabilitation before proceeding with
development projects.

Some of the criticisms against judicial activism include the following:

I. Judicial activism is a dangerous overreach of judicial

power.

• Judges are not elected officials. Hence, they are not accountable
to the people in the same way that elected officials are.
• When judges strike down laws that they disagree with, they are
essentially making the law themselves. This can lead to
uncertainty and instability in the law.
• It is not clear who has the ultimate authority to make law.

II. Judicial activism can be used to promote the personal

views of judges.

33 | P a g e
 • Judges are human beings and have their own personal beliefs
and values.
• It can be difficult to tell whether judges struck down laws
because they believe the law is unconstitutional or because they
simply disagree with the law’s policy.
• Judges are not elected officials. Hence, they are not accountable
to the people in the same way that elected officials are.
• When judges strike down laws that they disagree with, they are
essentially making the law themselves. This can lead to
uncertainty and instability in the law.
• It is not clear who has the ultimate authority to make law.

III. Judicial activism can lead to a decline in public trust in the

judiciary.

• Judges take an active role in shaping the law. This can lead to a
perception that the judiciary is not impartial and is not acting in
the best interests of the people.
• This can make it more difficult for the judiciary to carry out its
essential functions. This includes resolving disputes and
upholding the rule of law.

IV. OBSTACLE TO ADMINISTRATIVE LAW

Administrative law is a subset of public law that governs the structure,

powers, and responsibilities of administrative agencies. The idea of
separation of powers establishes a boundary between the three
branches of government. However, administrative law is now

34 | P a g e
incompatible with this principle. The Administrative agencies are not
only performing the administrative functions but also quasi-judicial
and quasi legislative functions as well which might violate the doctrine
of separation of power. In order to develop efficient and adroit
government and assure competent law enforcement, it is now an
absolute requirement to delegate further legislative and judicial
responsibilities to administrative authorities. These tribunals were
created with an objective to reduce the burden of the legislature and
the courts. It will also speed up the lawmaking process and also
provide timely justice. However, this not possible if the doctrine of
separation of powers is followed in a strict sense because it limits the
administrative law.

As it is a very well known fact that whenever a large power is given in

the hand of any administering authority there are higher chances of
maladministration, corruption and misuse of power. This doctrine
helps prevent the abuse of power. This doctrine protects the
individual from the arbitrary rule. The government is the violator and
also protects individual liberty.
Administrative law is a subset of public law that governs the structure,
powers, and responsibilities of administrative agencies. The idea of
separation of powers establishes a boundary between the three
branches of government. However, administrative law is now
incompatible with this principle. The Administrative agencies are not
only performing the administrative functions but also quasi-judicial
and quasi legislative functions as well which might violate the doctrine
of separation of power. In order to develop efficient and adroit
government and assure competent law enforcement, it is now an
absolute requirement to delegate further legislative and judicial
responsibilities to administrative authorities. These tribunals were
created with an objective to reduce the burden of the legislature and

35 | P a g e
the courts. It will also speed up the lawmaking process and also
provide timely justice. However, this not possible if the doctrine of
separation of powers is followed in a strict sense because it limits the
administrative law.
Summarily, the importance can be encapsulated in the following
points:

• Ending the autocracy26, it protects the liberty of the individual.

• It not only safeguards the liberty of the individual but also
maintains the efficiency of the administration.
• Focus on the requirement of independence of the judiciary
• Prevent the legislature from enacting an arbitrary rule.

26 Autocracy is a system of government in which absolute power is held by the ruler, known as an autocrat.

36 | P a g e
 CHAPTER - 7 CONCLUSION AND SUGGESTIONS

The researcher from a detailed study in previous chapters of the thesis

in defining term judicial activism had drawn the following conclusions.

I. Every Wing of the Government Should be Work For the

People :

In the last chapter, researcher reached at proper conclusion after

discussing the deep study in previous chapters that the working of
judicial system which works as a part of government FOR THE PEOPLE
has been incorporated in the provisions of the constitution. It is also
necessary that the rest of the wings other than judiciary of the
government should work for the people. For this, the judiciary has to
become “pro-active” and if necessary to consider the requirements of
the litigants on the basis of the principle that courts are exists for the
litigants and always remembers to other wings that litigants exists not
for the courts.

II. The Judicial Activism Should be Episodal and Anecdotal in

Character:

In regards to the role of the judiciary as criticized by other wings label

as judicial activism no doubt that the researcher concludes that the
judicial activism as witnessed in India has been shown to be episodal
and anecdotal in character. In India, a simplistic definition of judicial
activism 27 has been defined by various scholars that ‘any judgment
which is not related to the past and which sets new guidelines or ideas

27 Types of activism

37 | P a g e
is activist’. Actually, a departure from the past and break from the past
was required in the country in all judgments of the higher judiciary.
Therefore it is clear that the judiciary has to act as per the
requirements of the litigants and it does not Therefore, with the
definition of judicial activism as proposed above, nearly all judgments
after Independence ought to have been activist.

Judicial activism has also faced criticism several times. In the name of
judicial activism, the judiciary often mixes personal bias and opinions
with the law. Another criticism is that the theory of separation of
powers between the three arms of the State goes for a toss with
judicial activism. Many times, the judiciary, in the name of activism,
interferes in an administrative domain, and ventures into judicial
adventurism/overreach. In many cases, no fundamental rights of any
group are involved. In this context, judicial restraint is talked about.

III. Bureaucracy, the Executive and the Legislature Should be

Act as per the Constitution :

The researcher in his previous chapters discusses the functions of the

executives, legislature and their respective role. The researcher find
out that in most of the land mark judgments of the higher judiciary it
is clear that the role performed by the judiciary is not actually the role
of the judiciary but in addition the judiciary performed their role in
protecting the rights of the victims and it was resulted in to the so
called judicial activism. These judgments mandated actions by the
other arms of the government that is the actions which the

Human rights.
Environment.
Animal rights.
Libertarian and conservative.

38 | P a g e
bureaucracy, the executive and the legislature were supposed to take
on their own and they failed, in such situation judiciary direct or
compel them to perform their roles respectively.

All this led to further changes in the socio-economic political

environment of the country. These so called judgments labeled as
judicial activism, were always welcomed by the people.

IV. Need to Become Pro-Activist:

It has been pointed out in earlier chapter that these activist judgments
ought to have been not only activist but also pro-activist. Pro-activist
judgments are those which visualize the need for changes and the
character of changes needed by the society and changes that ought to
have been made in the society in advance but were not made in the
normal course, in spite of the changed Scenario.

If the judiciary had been pro-active, it would have taken into account
all the requirements of the society. The fact is that the so called activist
judgments also did not changed the track of the judiciary. The Directive
Principles of State Policy incorporated in Part IV of the Constitution
remained more or less a dead letter. Because of the judiciary the said
directives are incorporated as law.

VI. The other Two Arms of the Government have been

Discredited:

The instances of the judiciary being called upon to comment upon and
grant relief on the conflicts amongst the members of the executive and

39 | P a g e
the executive28 on the one hand and citizens on the other have been
far too many. In fact writs are issued by the judiciary to state
governments and central government and they are so numerous and
on so many subjects, that it sometimes appears that the main function
of the judiciary in India is only to adjudicate on disputes of the citizens
with the executive at the center, state and local level.

The powers of the judiciary under the writ jurisdiction have been
invoked by the citizens to obtain relief from the legislatures also by
appropriately raising the questions of virus of a particular piece of
legislation vis-à-vis the Constitution of India. The general principle
which has been evolved is that a piece of legislation that affects
adversely fundamental rights of the citizen and due process of law
guaranteed in the Constitution of India, is struck down by the judiciary.
The researcher further concludes that during the last several decades,
the rich have grown richer and the poor have become poorer. It has
been pointed out that only the judiciary has been found to be the
protector of the Constitution of India. Its role in maintaining the
constitutional democracy has been laudable. As the researcher
discussed in previous chapters and concludes that in most of the
economic scams in India the main accused are the ministers. Due to
this reason other two arms of the government have been discredited
since they have shown that they have not acted always in the interests
of the common people but they acted for their own interest.

Suggestions:
The concept of judiciary being “pro-active” has been proposed as a
new concept. That the judiciary should dispense social justice. It has
been recommended in the past as a philosophy by a few eminent
28The Union executive consists of the President, the Vice-President, and the Council of Ministers with the
Prime Minister as the head to aid and advise the President.

40 | P a g e
jurists like Justice V.R. Krishna Iyer 29 . The researcher agrees and
suggests implementing the same in Indian Judicial System to avoid the
so called judicial activism and to become our judicial system more
strong.

The discourse on India's "inventive and activist" judiciary has evolved

considerably over the past decade. Recent writings have begun to
question the impact of judicial activism, and whether courts can really
bring about social transformation.

Many of the Scholars have inquired into the reasons for the judiciary's
rise in India, and there has been a growing emphasis on the
contributing influence of the failure of India's representative
institutions as they performed their functions as the need of the hour,
researcher salute to the role performed by the judiciary and suggested
the following concepts.

I. The Concept of “Judicial Pro-Activism”:

The thesis defines and suggests the concept of “judicial pro-activism”

for the Indian judiciary. It also shows that considerable improvements
will have to be made so as to make the system more people-friendly
and to usher in a government that can be truly called a GOVERNMENT
FOR THE PEOPLE30.

II. Restricting the Role of Media :

29 Justice Vaidyanathapuram Rama Iyer Krishna Iyer was an Indian judge who became a pioneer of judicial
activism.
30 Democratic Government.

41 | P a g e
The researcher with this backdrop suggest that the role performed by
the TV Media and print media as the fourth pillar of the Democracy,
no doubt its appreciated But to some extent in the reporting of the
judgments, the media had made little Misconception and
misinterpretation of the judgments of the Hon’ble Supreme Court And
High courts in publication of case reporting, the media had
misinterpreted the Intention of the courts and spared dis respect to
the dignity of the judiciary through Reporting of the various news
published in newspapers. Researcher had also studied Various clips
shown as a “Sting Operations” shown by TV media and also studied its
Impact and effect in the minds of the common people in regards to
dignity of Judiciary.

III. Specific Suggestions :

The researcher had made the following suggestions to perform the

role of the Judiciary as Pro-active role.

First Step: The researcher recommended that the first step should Be
taken in providing required infrastructure to the subordinate Judiciary
in courts.

Today’s Reality: The higher judiciary is often falls short of its own
Standards for fairness, independence, access, understanding, and
Efficiency, but lower judiciary requires some improvements in daily
Routine of the work.

Flexible Structure: The judiciary requires better design and stronger

Management.

42 | P a g e
Modern Support: In judiciary there are some Structural deficiencies
Which are reflected in weak administration; the system needs better
Technology and enhanced assistance.

Alternative Means: Much of the present courts’ business should be

Moved out of the traditional courtroom and into alternative disputes
Resolution.

New Forums: For the sake of solving problems, some cases should
Move out of the judicial system and into a network of services and
Support designed for them.

New Directions: The judicial system must serve the public and aim to
Solve problems rather than merely processing the cases that come
Before it.

In Context: Judicial change should emphasize technology, flexibility,

Prevention, accountability, management, and results.
sense.

The researcher with this backdrop suggest that the role performed by
the TV Media and print media as the fourth pillar of the Democracy,
no doubt its appreciated But to some extent in the reporting of the
judgments, the media had made little Misconception and
misinterpretation of the judgments of the Hon’ble Supreme Court And
High courts in publication of case reporting, the media had
misinterpreted the Intention of the courts and spared dis respect to
the dignity of the judiciary through Reporting of the various news
published in newspapers. Researcher had also studied Various clips
shown as a “Sting Operations” shown by TV media and also studied its

43 | P a g e
Impact and effect in the minds of the common people in regards to
dignity of Judiciary.

The researcher recommended that the first step should Be taken In

providing required infrastructure to the subordinate Judiciary in
courts.

44 | P a g e
BIBLIOGRAPHY

BOOKS

A) The Constitution of India. By M.P. Jain

B) Administrative Law. By Jain and Jain.
C) Judicial Activism in India by S.P. Sathe,
D) Judicial Activism in India by G.B. Reddy
E) Judicial Review and Judicial Activism by K. L. Bhatia.
F) The Indian Constitutional Law by D.D. Basu.
G) Law of Writs.
H) Precedent in Indian Law by A. Laxminath.
I) Judicial Control Of Administrative Action. By Justice B P
Banerjee
J) Cases and Materials On Indian Administrative Law. By M. P.
JAIN.
K) Administrative Law. By S. P. Sathe
L) Judicial Control of Administrative Action By Justice Bhagwati &
Banerjee.
M) Judicial Activism in India. By B. S.Tyagi.
N) The Contempt of Court Act, 1871.
O) The Cinematograph Act.
P) Hidayatullah, M. Justice, Democracy in India and the Judicial
Process: Asia Publishing House, Bombay, 1996.
Q) Murphy Walter F. and C. Herman Pritchee, Courts, Judges and
Politics: An Introduction to Judicial Process: Random House,
1974.
R) Durga Das Basu, ‘Shorter Constitution ofIndia’, 13th Edition,
Reprint 2004, Wadhwa & Wadhwa Company Nagpur.

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 S) S. P. Sathe, Judicial Activism in India - Transgressing Borders
and Enforcing Limits (OUP, New Delhi 2002).
T) P. P. Rao, 'The Constitution, Parliament and the Judiciary' in
Pran Chopra's The Supreme Court versus the Constitution - A
Challenge to Federalism (Sage Publications, New Delhi 2006).
U) Benjamin N. Cardozo, The Nature of the Judicial Process, (New
Haven : Yale University Press, 1921).
V) M. P. Jain, 'The Supreme Court and Fundamental Rights' in S.K.
Verma, K.Kusum, Fifty Years of the Supreme Court of India: Its
Grasp and Reach (OUP, New Delhi 2003).

ONLINE RESOURCES

a) www.google.com
b) www.indiaitlaw.com
c) www.ipindia.com
d) www.Indialawworld.com
e) www.lawofindia.org
f) www.mahalibrary.com
g) www.indiataxlaws.com
h) www.indiapropertylaws.com
i) www.lawchips.com
j) www.laws4india.com
k) www.lawindiainfo.com
l) www.legalaidindia.com
m) www.manupatra.com
n) www.vakilbabu.com
o) www.lexisnexis.com
p) www.lawguru.com

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