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“The Supreme Court of India has undergone a radical change in the last few years and it is now increasingly identified by the justice as well as people‘s last resort for the purpose bewildered.”

- Justice P.N. Bhagwati


Grundnorm of the country, the Constitution of India places a very significant duty upon the state through its Preamble to ensure Justice, Liberty, Equality and Fraternity to its citizens. The protection of Fundamental Rights of the citizens and implementation of the Directive Principles of the State Policy is an obligation placed upon the State.

Indian Judiciary, very popularly known as the guardian of the Indian Constitution, has been jeweled with a very noteworthy responsibility to keep a check over the actions of the state to avoid any arbitrary use of its great powers. In furtherance to this power, the judiciary has from time to time come forward to protect its citizens Fundamental Rights from any kind of abuse by the State.

The concept of Judicial Activism was fabricated for the very first time by Arthur Schlesinger in 1947 in his article “The Supreme Court: 1947” in a Fortune magazine.

Judicial Activism is a very broad concept which cannot be put into a water tight compartment by assigning a particular definition. Despite its broad ambit, various dignitaries have tried to explain this concept, for example Honorable Mr. Justice J.S. Verma described judicial activism as “the active process of the implementation of the rule of law, essential for the preservation of a functional democracy.”

Further it has also been described as “Philosophy of judicial decision- making whereby judges allow their personal views about public policy, among other factors to guide their decisions.” (Black Law’s Dictionary) In a layman’s language, Judicial Activism in India would mean the right of the Supreme Court and High Courts to strike down any law in violation to any provision(s) of the Constitution. When the judicial decision rests upon various factors except the law, it is known as judicial activism.


“Courts dare and ought to say what the law is and what the law should be”

- Justice Joseph

In India, The Supreme Judicial System is bound to perform 3 major functions conferred upon it by the Constitution, which includes:

1. Interpretation of the statutes and most importantly of the Constitution itself to avoid the execution of any law against the central aim of the statute/the Constitution.

2. To act as the savior of the Fundamental Rights guaranteed by the Indian Constitution.

3. To deal with the cases transmitted from the lower courts in the form of appeals etc.

Some of the important constitutional provisions concerning judicial activism are examined below:

  1. Article 13 : Any law which fails to comply with any of the Fundamental Rights, to that extent, will be declared as void. To give effect to this provision, constitutional courts have been armed with the responsibility of interpreting the Constitution and decide whether the particular law is in consonance with the provisions of Part III of the Constitution or not.

  2. Article 32 : The Supreme Court should act as a shield to the Fundamental Rights by issuing any of the four writs to ensure compliance with the Fundamental Rights.

  3. Article 132 : Where a case entails any issue as to the interpretation of the Constitution, the appeal from the decision of the High Court shall lie to the Supreme Court.

  4. Article 136 : Authorizes the Supreme Court to award the special power to appeal from any decision of the High Court in cases of injustice.

  5. Article 142 : Endows upon the Supreme Court the power to legislate on any matter, in regard to which there is no law for the time being, also known as judicial legislation. The law will lose its validity when the Parliament legislates on that matter.

  6. Article 226 : High Courts can issue any writ to ensure compliance with the Fundamental Rights.

The Supreme Court and High Courts through the Constitution have come to play to resolve various issues, be it prisoner’s rights, the rights of the bonded laborers, women’s rights, etc. in the form of Public Interest Litigations.


“The active process of implementation of the rule of law is essential for the preservation of a functional democracy”

- Surbhi Singhania,

“Judicial Activism in India”

4 IJL 239 (2018)

The very first step towards the journey of judicial activism could be traced back to 1893 when Justice Mehmood of the Allahabad High Court gave a contradictory judgement. In this case of under trial, one of the parties to the suit could not hire a lawyer because of the lack of resources. The court was to decide upon the question that whether the case can be decided solely through the papers?

It was held by the Allahabad High Court that for the hearing of any case, the sine quo non is speaking, in contrast to just reading. Through this judgement, the court for the first time interpreted the law and put an end to its orthodox approach of being conservative on every matter rather than being activist. After this, there was no looking back for the practice of judicial activism.

Some of the milestones in the journey of judicial activism are discussed hereunder:

Case: Golaknath v. State of Punjab[i]

Held: Part-III of the Constitution of India devoted to the Fundamental Rights of the citizens is unamendable.

Case: Kesavananda Bharati v. State of Kerala[ii]

Held: Any part of the Indian Constitution is amendable, provided that the Basic structure is not tampered with at any expense. This judgement was passed to declare a constitutional amendment passed by the Parliament as faulty for harming the basic structure of the Constitution.

Case: Indira Nehru Gandhi v. Raj Narain[iii]

39th Constitutional (Amendment) Act, 1975 of the Constitution of India has been challenged in the present case. The reason for challenging the amendment being that, following Indira Gandhi’s election getting set aside, 39th amendment to the constitution was passed to invalidate the setting aside of Mrs. Gandhi’s elections. The amendment made the provision that the elections of the speaker of the Lok Sabha and the Prime Minister are not liable to be questioned by any court.

Looking into the facts of the case, the Hon’ble Supreme Court invalidated the 39th Constitutional Amendment on the ground that the same is violative of the basic structure of the Constitution.

Now, to highlight the recent trends of judicial activism, light has been thrown upon some of the latest judgements. In the case of K. Puttaswami v. Union of India[iv], the Honorable Supreme Court affirmed the validity of the Aadhar Act, however, debarred the provision of making the aadhar mandatory by the non-state bodies. Further, in the case of Navtej Singh Johar v. Union of India[v], Section 377 of Indian Penal Code, 1860 has also been declared as unconstitutional to the extent which prohibits homosexuality. Honorable Supreme Court in Internet and Mobile Association of India v. RBI[vi], lifted the RBI ban over the virtual currencies trade.

Supreme Court has been playing very active role in every aspect, citing some examples, the NJAC (National Judicial Appointments Committee) has been invalidated[vii], Triple Talaq has been declared illegal[viii], granted coparcenary rights to the women[ix], and the list continues.


“While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitution[x]

Judicial Activism, indeed a good example of creative spirit, zest and revolution has definitely proved to be a justice house for the people. The supreme law of the land, the Constitution of India has given special powers and the status to the Supreme Court and High Courts. But while exercising such powers, the prescribed limit shall not be crossed, come what may. Judiciary should always maintain a clear dividing line between judicial activism and judicial overreach. For the success of democracy and to maintain the supremacy of the Constitution, judiciary while giving every judgement, should be very prudent and observant, because every line quoted by the judiciary serves as “set in stone”.

Thus, considering all the aspects, it can very safely be concluded that Judiciary acts as a bridge between written laws and their proper interpretations, so as to enforce them in the accurate manner. Honorable Justice B.P. Reddy has said quite rightly that “It is true that on some occasions, courts have overstepped their limits. But, by and large, judicial activism has done a great service to society.”

AUTHOR: Harnoor Kaur

[i] AIR 1967 SC 1643. [ii] AIR 1973 SC 1461. [iii] AIR 1975 SCC 2299. [iv] (2019) 1 SCC 1. [v] (2018) 10 SCC 1. [vi] 2019 SCC OnLine SC 275. [vii] Supreme Court advocates-on –record-association v. Union of India (2015) SCC 408. [viii]Shayara Bano v. Union of India (2017) 9 SCC 1. [ix] Vineeta Sharma v. Rakesh Sharma (2019) 6 SCC 164. [x] Constitutional Amendments Debate 1948.

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Jasnoor Baweja
Jasnoor Baweja
Mar 31, 2021

Very informative 👍

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