Rise of Judicial Activism in India: Forming Progressive Social Policies in a Semi-Backward India?

Our generation is seeing the biggest wave of judicial activism and it is only getting bigger from here on.

Black’s Law Dictionary defines Judicial Activism as judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.

According to the conceived idea of judicial activism, judges can use the interpretation of the law to overturn oppressive rulings and have the power to correct injustices, especially when the other branches of the government, namely the legislative and executive branches do not act upon it.[1] Justice Dr. A S Anand, former Chief Justice and chairperson of the Human Rights Commission of India strongly suggested in one of his addresses that judicial activism is a necessity in the context of current economic, cultural, and ethical state of affairs. He said, “Where the court strikes down an executive order, it does so not in a spirit of confrontation or to assert its superiority but in the discharge of its constitutional duties.The courts should play an active role in shaping social policies and issues such as civil rights, enforcement & protection of fundamental rights and public morality.

Judicial activism earned a human face in India with the liberalizing of access to justice and granting redressal to minority groups through public interest litigation.[2] There is a marked difference in the courts’ approach before 1977 and post-emergency rule in 1975, including after the judgement passed in the Prime Minister Election case. In contrast to when the Supreme Court was first established, the judiciary was conservative, and judges remained passive.[3] However, before 1977, in 1964 when Justice Gajendragadkar became the Chief Justice of India, developed a judge law under his pro-labour interest. The law was such that if a worker in the industry was sought to be dismissed for misconduct there must be an enquiry held in which he must be allowed to defend himself.

A great arena of judicial activism was begun by the Indian Supreme Court when it defined ‘life’ as an existence with all the freedoms associated with it and not mere survival.[4] This was a forerunner of active social change by the judiciary which would be more prominent in following years starting in 1978.[5] In Maneka Gandhi v. Union of India, the Supreme Court overruled AK Gopalan case and declared for the very first time that a precedent, legislation, and executive acts that must meet the due process of law and it should meet the requirements laid down in Article 21 of the Constitution. The precedent was set by a 7 Judge bench. This ruling created an interrelation between Article 14, 19 and 21 of the Constitution which is popularly known as the ‘Golden Triangle Test’ providing that “depriving a person of ‘personal liberty’ has to stand the test of these 3 Articles”.

The beginning of judicial activism was from the stand-off between the executive and the judiciary. The co-existence of a conservative and progressive branch of the government is what resulted in the rise of judicial activism. Access to justice is the fundamental aspect of rule of law. The Indian judiciary has played a key role in ensuring that indigent persons, victims of human trafficking and severely disadvantaged groups such as transgenders and LGBTQ+ have access to ways of redressal under law.[6] One of the biggest wins for judicial activism and the LGBTQ+ community was recently when Justice Anand Venkatesh, sitting at the bench of Madras High Court, ruled in the favor of a lesbian couple who had filed a complaint against the police for ‘harassing questioning’. The ruling was passed after he sought counselling to better understand same-sex relationships. Stating that “ignorance is no justification for normalizing any form of discrimination.” The actions of the executive are subject to judicial review when there are such economic or social injustices.

In doing so a shift from locus standi to public interest litigation made the judicial process more participatory and democratic.[7] Liberalizing public interest litigation has been a key factor in the growth of judicial activism. It has brought to light various concerns and the judiciary has developed the fundamental rights jurisprudence while giving the liberal interpretation of the ‘right to life and personal liberty’ envisaged under Article 21 of the constitution, which was grossly ignored and violated under the President’s Emergency Rule in 1975 under Indira Gandhi’s term as Prime Minister. In landmark judgments, the Supreme Court recognized a prisoner’s rights including humane treatment, access to legal facilities and freedom of speech & expression.[8]  One such judgement was in Sheela Barse v. State of Maharashtra. A letter from Sheela Barse, a journalist, was treated as a Writ Petition, stating that women detainees in police lock-ups in Mumbai were subjected to custodial assault. The Apex court issued various orders to the State of Maharashtra conferring protection to women prisoners in lockups.

Judicial activism has not grown without accusations from the Parliament about the judicial ‘intervention’. The judiciary should self-regulate. When the judges interpret law or the Constitution by not merely giving effect to the literal meanings of the words but providing an interpretation consistent with the spirit of the statute, changes in the society- there is said to be judicial activism.

Another contributing factor in the rise of judicial activism has been judicial review. According to Dr. Ambedkar the provisions for judicial review in particularly writ jurisdiction that gave quick relief against abridgement of fundamental rights- represented the very heart of the Constitution.[9] However, the extensive use of activism by the judiciary is not healthy for the growth of the democracy because the judiciary is not accountable to the people of India like the legislative and the executive. At the same time, judicial activism has been on the rise because the people have expressed that the legislative and the executive arms of the government have failed them.

Author’s Note:

 I have chosen the following topic to write on because our generation is seeing the biggest wave of judicial activism and it is only getting bigger from here on. In many recent pleas, the High Court and Supreme Court have asked for answers from the government concerning various issues such as oxygen requirements being met in the second wave of covid-19. In the last three years even though the legislators has failed the citizens in various areas, the judiciary has upheld the law and its spirit.

REFERENCES


[1] Shunmugasundaram, R. (2007). Judicial activism and overreach in India. Retrieved 28 June 2021, from https://core.ac.uk/download/pdf/112282.pdf

[2] Ibid

[3] Negi, A. Judicial Activism and Judicial Restraint. Retrieved 28 June 2021, from http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html

[4] Negi, A. Judicial Activism and Judicial Restraint. Retrieved 28 June 2021, from http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html

[5] Mehendi, F. (2020). Case Summary: Maneka Gandhi v Union of India (1978). Retrieved 28 June 2021, from https://www.legalbites.in/case-summary-maneka-gandhi-v-union-of-india-1978

[6] Nagaraj, A. (2021). The Madras High Court judge who banned gay conversion therapy spoke of fighting his own biases. Retrieved 28 June 2021, from https://scroll.in/article/997159/the-madras-high-court-judge-who-banned-gay-conversion-therapy-spoke-of-fighting-his-own-biases

[7] Singh, D., & Jaswal, P. (2017). Judicial Activism in India. Retrieved 28 June 2021, from http://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-2B84EFE0ABCA.pdf

[8] Singh, D., & Jaswal, P. (2017). Judicial Activism in India. Retrieved 28 June 2021, from http://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-2B84EFE0ABCA.pdf

[9] Sathe, S. (2001). Judicial Activism: The Indian Experience. Retrieved 28 June 2021, from https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1443&context=law_journal_law_policy

Aadya is an aspiring lawyer and a writer- her works have mainly consisted of literary focused write ups and poetry. She graduated from the University of Manchester this year with bachelor's in science of finance and economics. She has given her time to volunteering with immigrants and refugees in the past years in Manchester to teach them English for conversational and vocational purposes.

2 comments On Rise of Judicial Activism in India: Forming Progressive Social Policies in a Semi-Backward India?

  • A very well written article, with thorough analysis of this issue . Off late there have been many instances wherein judiciary has stepped in to question the legislature , which is very healthy for a democracy. Likewise there is a need felt that judiciary should also take measures to demolish judicial activism by Pvt parties to oppose decisions of national importance by the legislative either to slow down the implementation or to oppose it due to ideological differences.

  • A very well written article, with thorough analysis of this issue . Off late there have been many instances wherein judiciary has stepped in to question the legislature , which is very healthy for a democracy. Likewise there is a need felt that judiciary should also take measures to demolish judicial activism by Pvt parties to oppose decisions of national importance by the legislative either to slow down the implementation or to oppose it due to ideological differences.

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