Judicial Activism
Origin and Introduction
Let’s begin from the roots.
The concept of Judicial Activism didn’t start in India — it actually originated in the United States of America.
The term “Judicial Activism” was first coined in 1947 by an American historian and educator, Arthur Schlesinger Jr.
So, remember — though the idea existed earlier, the term came in 1947.
In India, this idea began to take shape in the mid-1970s, thanks to visionary judges like:
- Justice V.R. Krishna Iyer
- Justice P.N. Bhagwati
- Justice O. Chinnappa Reddy
- Justice D.A. Desai
These judges laid the foundation stones of Judicial Activism in India, particularly through their bold interpretations of the Constitution.
⚖️ Meaning of Judicial Activism
Now, what exactly is “Judicial Activism”?
In simple words:
Judicial Activism means the proactive role played by the judiciary — especially in protecting citizens’ rights and ensuring justice in society.
It implies that the judiciary is not just a passive interpreter of law, but an active guardian of the Constitution.
It ensures that the Legislature and Executive — the other two organs — are performing their constitutional duties properly.
If they fail, the judiciary steps in.
That’s why it is also called “Judicial Dynamism”, while its opposite is “Judicial Restraint” — which means the judiciary keeps itself within strict limits and avoids interfering in policy matters.
📚 Scholarly Definitions
There are multiple definitions, but let’s understand their essence:
- Judicial activism is when judges go beyond precedents to promote progressive social change.
→ It may even lead to decisions that touch legislative or executive domains. - It’s the judiciary protecting or expanding individual rights, even if that means departing from earlier judgments or the original intent of the Constitution.
- It’s a form of judicial law-making — where judges interpret laws actively to make them more useful for social welfare.
- It’s a philosophy of decision-making where judges’ personal views on public policy may influence their rulings.
- Finally, it’s a procedure that allows the judiciary to create new principles, doctrines, or remedies to ensure justice and give access to courts to those who need it most (like in Public Interest Litigations – PILs).
So, in short — judicial activism is when the judiciary acts not just as an interpreter but as a problem-solver.
🔍 Aspects of Judicial Activism in India
There are two main aspects through which Indian judiciary practices activism:
(i) Directions and Orders to Government
When the courts issue directions to government authorities — especially for protecting citizens’ rights or advancing public interest —
→ such cases often come under Public Interest Litigation (PIL).
For example: Environmental protection, prison reforms, or women’s rights cases.
(ii) Expanding Fundamental Rights
The judiciary has broadened the scope of rights, especially:
- Article 14 – Right to Equality
- Article 19 – Right to Freedom
- Article 21 – Right to Life and Personal Liberty
Through interpretation, courts have made Article 21 a living document — including rights like clean air, privacy, livelihood, and education within “Right to Life”.
🧩 Judicial Review vs Judicial Activism
These two are often confused, but they’re not the same.
Let’s differentiate clearly:
| Judicial Review | Judicial Activism |
|---|---|
| Power of the judiciary to examine laws and see if they conform to the Constitution. | Judiciary goes beyond review, to shape or make new policies/laws when needed. |
| Focused on legality – whether a law violates the Constitution. | Focused on justice and social welfare – adapting laws to present needs. |
| Passive and limited. | Proactive and expansive. |
| Example: Striking down an unconstitutional law. | Example: Creating the concept of “Right to Privacy” or expanding “Right to Education”. |
👉 So, judicial activism is an expanded form of judicial review, where judges also participate in law-making and policy-shaping to uphold constitutional ideals.
💡 Justification for Judicial Activism
Now the question arises:
Why does the judiciary have to be “active”?
Why not stay “restrained”?
According to Dr. B.L. Wadehra and Subhash Kashyap, judicial activism becomes necessary when the other organs fail.
Let’s understand their reasoning:
(i) Collapse of Responsible Government
When the legislature and executive fail to perform their duties — corruption, inefficiency, or inaction — people lose faith in the system.
Then, judiciary steps in to restore trust.
(ii) People’s Expectation
Citizens see the judiciary as the last hope to protect their rights.
Hence, courts feel moral pressure to act.
(iii) Judicial Enthusiasm
Sometimes, judges themselves want to be part of social transformation — for example, through PILs and liberal interpretation of “locus standi” (who can file a case).
(iv) Legislative Vacuum
If no law exists on a certain issue, the court may create guidelines — like in the Vishaka Case (1997) for sexual harassment at workplace.
(v) Constitutional Mandate
The Indian Constitution itself gives judiciary enough space to interpret and innovate — Articles 13, 32, 141, and 142 empower the Supreme Court to ensure justice.
🧠 When Judiciary May Need to Intervene (Subhash Kashyap)
Subhash Kashyap adds some real-world scenarios:
- When legislature fails to perform its duties.
- When there is a hung parliament or weak coalition government that avoids tough decisions.
- When politicians delay or dodge decisions by passing them to courts.
- When basic rights (like decent life, clean environment) are neglected by the government.
- When government misuses laws for authoritarian purposes — like during the Emergency (1975–77).
- When even courts, sometimes, get swayed by populism or media attention — a note of caution against overreach.
⚡Activators of Judicial Activism
Now, we understood earlier why judicial activism happens — mainly because of the failure or inaction of other organs of government.
But who actually pushed the judiciary to become active?
The answer comes from the eminent jurist Upendra Baxi, who identified 15 types of social and human rights activists who acted as “activators” or triggers of judicial activism in India.
Let’s understand them category by category — with examples and simple associations so they stick in your memory.
(1) Civil Rights Activists
They focus on civil and political rights — like freedom of speech, right to protest, or protection from arbitrary arrests.
🧩 Example: Cases on police excesses, censorship, or preventive detention.
(2) People’s Rights Activists
These groups highlight social and economic rights — especially when state repression affects people’s movements.
🧩 Example: Movements of farmers, labourers, or displaced tribal communities.
(3) Consumer Rights Groups
They raise issues about accountability in markets and governance.
🧩 Example: Unsafe products, misleading advertisements, or unfair trade practices.
(4) Bonded Labour Groups
These activists seek an end to wage slavery — situations where poor labourers are trapped in debt bondage.
🧩 Example: Bandhua Mukti Morcha case — a landmark PIL against bonded labour.
(5) Citizens for Environmental Action
These groups push the judiciary to address pollution and environmental degradation.
🧩 Example: MC Mehta cases — cleaning of Ganga, protection of Taj Mahal.
(6) Citizen Groups Against Large Irrigation Projects
They question mega projects that displace people or harm ecology.
🧩 Example: Narmada Bachao Andolan — challenging large dam constructions
(7) Rights of Child Groups
Focus on child labour, juvenile justice, and education rights.
🧩 Example: Sheela Barse case (juveniles in custody); Right to Education (as part of Article 21A).
(8) Custodial Rights Groups
These defend the rights of prisoners, women in protective homes, and detained persons.
🧩 Example: Sunil Batra case — protection of prisoners from torture.
(9) Poverty Rights Groups
They fight cases about famine relief, urban poverty, and basic living conditions.
🧩 Example: PUCL cases — right to food and relief during droughts.
(10) Indigenous People’s Rights Groups
They represent Adivasis and forest dwellers, particularly under Fifth and Sixth Schedules of the Constitution.
🧩 Example: Forest rights and eviction-related PILs.
(11) Women’s Rights Groups
They address gender equality, domestic violence, dowry deaths, and rape cases.
🧩 Example: Vishaka Guidelines (1997) for protection from workplace harassment.
(12) Bar-Based Groups
These are lawyers’ associations fighting for judicial accountability and independence.
(13) Media Autonomy Groups
They demand freedom of the press and protection from state control over mass media.
🧩 Example: Debates around censorship and press freedom.
(14) Assorted Lawyer-Based Groups
These are individual or collective lawyer activists taking up various causes — like civil liberties or human rights.
(15) Individual Petitioners
Finally, some freelance individuals — socially aware citizens — file PILs on their own initiative.
🧩 Example: Any concerned citizen filing a PIL for a public cause.
💬 In short:
Upendra Baxi shows us that judicial activism wasn’t born inside courtrooms — it was activated from outside, by the pressure and participation of society itself.
⚖️ Apprehensions or Fears of Judicial Activism
Now, let’s come to the other side of the coin — the fears or apprehensions about judicial activism.
Upendra Baxi again lists six major types of fears — almost like internal questions that judges themselves might ask before taking up activist roles.
Let’s go one by one.
(1) Ideological Fears
🧩 “Are we — the judges — overstepping our boundaries? Are we taking over the roles meant for the Legislature or Executive?”
This fear questions whether activism violates the principle of separation of powers.
(2) Epistemic Fears
🧩 “Do judges really have enough expertise to handle issues like economics, science, or nuclear energy?”
For example, can judges decide complex environmental or fiscal policy matters better than domain experts?
(3) Management Fears
🧩 “Will this activism add more cases and burden our already overloaded judiciary?”
Because India’s courts already face huge case pendency — so more activism means even more workload.
(4) Legitimation Fears
🧩 “What if the Executive ignores our orders? Will that reduce people’s faith in the judiciary?”
If judicial orders are bypassed, it may erode the authority and credibility of the courts.
(5) Democratic Fears
🧩 “Does judicial activism strengthen democracy or weaken it?”
If the judiciary starts doing the job of elected representatives, it might undermine popular sovereignty.
(6) Biographic Fears
🧩 “How will my judicial activism affect my public image or post-retirement position?”
This is a more human concern — about personal legacy and perception.
💬 So, in essence:
Upendra Baxi reminds us that judicial activism must come with judicial caution.
It’s not just about doing justice — it’s also about preserving judicial legitimacy and balance.
⚖️ Judicial Activism vs. Judicial Restraint
Now comes the most important comparative part — Judicial Activism vs. Judicial Restraint — a hot UPSC favourite.
Let’s first understand the meaning of Judicial Restraint.
🧭 Meaning of Judicial Restraint
Judicial Restraint is the opposite judicial philosophy — mainly evolved in the United States.
It says:
“Judges should only interpret law — not make law.”
Their role is limited:
To say what the law is, not what it should be.
They must not let personal or political beliefs influence their judgments.
The focus should remain on the original intent of the Constitution’s authors.
So, while Judicial Activism = Dynamic Interpretation,
Judicial Restraint = Faithful Adherence to the text and intent of law.
⚙️ Assumptions Behind Judicial Restraint (U.S. Context)
There are six core assumptions, five of them apply to India as well.
Let’s simplify them:
- The Court is Undemocratic
Since judges are not elected, they should defer to elected bodies (Legislature and Executive), which represent the people’s will. - Judicial Review is Questionable
Judicial review is a self-assumed power, not directly mentioned in the U.S. Constitution — so courts must use it sparingly. - Doctrine of Separation of Powers
Each organ should stay in its lane — judiciary should not perform executive or legislative functions. - Federalism
Courts must respect state governments’ autonomy, and not interfere unnecessarily. - Pragmatic Consideration
Courts depend on legislature for funds and on public trust for legitimacy — so they should avoid overstepping their limits.
- Law vs. Politics
Law is based on reason and judgment, while politics is about power and influence — hence, courts must not become political arenas.
💡 Relevance to India
Except the second assumption (since India’s judicial review is explicitly provided in the Constitution under Articles 13, 32, 136, etc.),
all others apply to Indian democracy as well.
⚖️ Supreme Court of India on Judicial Restraint (2007)
In December 2007, the Supreme Court delivered a landmark judgment emphasizing Judicial Restraint.
Let’s go through the essence of what the Bench said — because it beautifully summarises the Indian position.
(1) Judges should not perform executive or legislative functions.
🧩 Doing so is unconstitutional and violates separation of powers.
(2) Judges must have modesty and humility, not behave like “emperors”.
Their role is to interpret, not to rule.
(3) Quoting Montesquieu’s “Spirit of Laws”, the Bench warned:
“When separation of powers collapses, liberty collapses.”
A timely reminder for today’s judiciary.
(4) Judicial Activism must not become Judicial Adventurism.
Courts must act within historical restraints and avoid letting personal views guide judgments.
(5) Courts should not embarrass administrative authorities.
Administration requires technical expertise that judges may not possess.
(6) “Don’t justify overreach by blaming the other organs.”
Even if legislature/executive fails, judiciary cannot take over their work.
→ Because even judiciary has its own backlog and inefficiencies.
(7) If government fails, people have the remedy — elections.
In a democracy, voters, not judges, must hold governments accountable.
(8) Courts lack resources and expertise to run government.
Hence, taking over executive roles violates both capacity and Constitutional balance.
(9) Judicial Restraint preserves balance and independence.
If courts interfere too much, politicians may start demanding oversight of judges, which will harm judicial independence itself.