Posted on: March 24, 2021 Posted by: admin Comments: 0

Author: Saumya Singh, Student at Allahabad University.


For any state to function properly and smoothly in the direction of the welfare of its citizens, it is important for the three pillars of democracy to follow the rule of separation of power . That is the creators of the Indian Constitution kept the judiciary absolutely untouched from the influence of legislative and executive. Judiciary in India is considered as the interpreter of the Constitution and guardian of fundamental rights of the citizens. The three departments cannot interfere in the affairs of each others, specially the legislative and executive in the judiciary’s . But the judiciary as the guardian of the constitution and the citizens many a times has taken liberty to strike down the action of another branch of the government to uphold and promote the rights of the citizens . Such active role of judiciary in upholding the rights of the citizen is usually referred to as judicial activism.

The term ‘judicial activism’ was first introduced by Arthur Schlesinger Jr. in 1947, in his article “The Supreme Court :1947”. Although it was the first time the term was used, the fundamental concept has already been in existence. Even though the term has been in existence for long , its meaning and character of judicial activism is still not clear, bringing the term into controversy. In one way, it is considered to play an important role in liberalizing access to justice and providing relief to the underprivileged and on the other, it is regarded as over stepping of  liberty of function . It is frequently considered that by applying activism , judges enforce their own opinion of constitutional essentiallity instead of taking in view the opinion of the government officials or the earlier courts.


In India the power of Judicial activism is only vested in the Supreme Court and the High Court but not on the subordinate courts. The implementation of judicial activism by the court has not there until 1970s. After the independence, legislative and executive organs were more dominating and frequently interfered in the working of the judiciary. In the 70s the Supreme court started interpretating the basic structure and framework of the constitution. It started with the case of Indira Gandhi, when the Allahabad High Court rejected the candidature in election.

Keshwananda Bharti case and Golaknathn case are considered to be landmark judgements in judicial activism.

In Keshvananda Bharti Case , the Supreme Court held that although the legislation has the power to amend any part of the Indian Constitution , including fundamental rights , it can still not abrogate the basic structure of the Indian Constitution by amending any part of it. And if such amendment was passed by the parliament , the Court can struck down the said amendment to protect the basic structure of the constitution.

In I.C. Golaknath & ors V.  State of Punjab & anr. , the Supreme Court held that the fundamental rights incorporated under part 3 of the Indian Constitution form the Basic Structure of the Indian Constitution thus being unamendable by the Parliament. The Supreme Court also held that to amend the fundamental rights provided under chapter 3 , a new constituent assembly would be required , as Article 368 gives the procedure to amend the constitution but it does not confer the power to the parliament to amend the constitution.

In Sunil Batra v. Delhi Administration , a letter written by a prisoner was taken and regarded as a petition. Which gave a new height to the concept of judicial activism. The letter innunciated that the jail warden abysmally inflicted pain and assaulted prisoners . Considering the pathetic  and pitiful condition of the prisoners, the court decided to take matter in its own hand and saw to it that no human rights were violated.

Sheela Barse v. State of Maharastra was another case in which a simple letter of griveance was treated as petition. In this case a journalist wrote a letter addressed to the supreme court retailing the custodial violence inflicted on the women prisoners in the jail. The apex court took cognizance of the matter and provided guidelines to the concerned authorities of the state.


The nature of judicial activism has been in controversy since the very beginning. The importance of judicial activism cannot be negated but there is a very thin line between judicial activism and judicial overreach. In the face of legislative failures, judicial activism has been found to be very utilitarian.

Judicial Activism plays an important role in balancing and placing a restraint check on the  arbitrary power of the executive and legislative. It also proves how much the constitution has put faith in the ability of the judiciary to safeguard its citizens . The oath taken by the judges to bring justice to common people is further inflamed by the judicial activism , as it provides for them to use their insight and knowledge to do what they deem fit within a rationalized limit.

On the other hand , it violates the limit of power provided  by the constitution to judiciary , when it overrides any existing law. When it surpasses its power, in a way its limiting the functioning of the other two domains of the state. Judicial activism can also be harmful to the public if the judgement is highly influenced by personal or self-serving motives . Intrinsically, judicial opinion of the judges once given as judgement of a case becomes binding on the lower courts and sets standard for further cases. And frequent intervention of courts can diminish people’s faith in the working and efficiency of the government.


There are several methods of judicial activism that has been used by the courts in India , which are as following.

  1. Judicial review – it refers to the power of the judiciary to interpret the constitution and law and declare any provision or law by legislature or executive void if it is in conflict with the constitution or against the fundamental rights of the citizens.
  2. PIL – Public Interest Litigation is another such method. In this the petition is filled by a not interested party rather than a party that is interested and involved in the matter. Such petition is accepted only when it is in the interest of the larger public.
  3. Constitutional interpretation – One of the functions bestowed on the judiciary is to safeguard Indian constitution. Which involves for the court to interpret the constitutional provisions.
  4. Supervisory power – This power is available to the higher courts to provide guidance to the lower courts under them.

The concept of judicial activism is both positive and negative . If used properly it can improve and provide justice to the underprivileged. But if overexerted it intervene too much in the working of the government then it will defeat the importance and essence of constitutional power proved to the court to save guard the interest of the citizens.

Many times, in the process of judicial activism, the personal opinions are reflected in the judgement provided by the court. Furthermore, interpretation of constitution and law is one of the primary function of the judiciary and not making such laws, but the court at many instances starts making law by issuing guidelines and directions to be followed by the executive department. Such guidelines has also saved the humanity and guarded the integrity of individuals from the tyranny of the legislature and the executive. In conclusion it can be said that there is no system that does not have both positive and negative side to it , and such goes for judicial activism as well. Still it has proved to be more beneficial to the underprivileged and the people in common than baneful.


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