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In the United States, the notion of judicial activism was born and evolved. Arthur Schlesinger Jr., an American historian, and educator invented the phrase in 1947.
The idea of Judicial Activism was first established in India in the mid-1970s. Justices V. R. Krishna Iyer, P. N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai were among the firsts to establish Judicial Activism in the nation.
This article talks about what Judicial Activism is, its significance in Indian Judiciary and its relation with Public Interest Litigation and theory of Separation of Power


Judicial activism refers to the judiciary’s proactive involvement in the preservation of people’s rights and the advancement of justice in society. In other words, it refers to the judiciary’s forceful role in pressuring the government’s other two institutions (legislature and executive) to fulfill their constitutional obligations. ‘Judicial Dynamism’ would be another term for judicial activism.
According to Merriam Webster’s Dictionary of Law, Judicial Activism means ‘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. Judicial activism refers to judicial decisions that appear to be based on personal or political motives rather than established law.’
When considering matters before the Court, judges may appear to overstep their authority. According to the Constitution, they are to use their judgment in interpreting the law. Activist judges, on the other hand, appear to use their will to establish legislation in reaction to legal difficulties before the Court.
Judges should utilize their authority to remedy injustices, according to the concept of judicial activism, especially when the other arms of government fail to do so. In summary, the courts should be involved in establishing social policy on problems such as civil rights, individual rights protection, political injustice, and public morality.



In India, Public Interest Litigation (PIL) allowed for judicial activism. The court must be satisfied that the individual who approaches it has a sufficient interest in the case before accepting it for adjudication. The question is whether the petitioner has locus standi to bring the case in the first place. This is done to minimize needless lawsuits. Until the PIL wave, the legal theory that no one saves the aggrieved person can approach a court for a legal remedy was holding the field in both private and public law adjudications.
PIL, which is a kind of judicial activism, has given the judiciary’s engagement in public administration a new dimension. In the cases filed before the courts through PIL, the question of locus standi and procedural complexity has taken a back seat.
Initially, the PIL was limited to improving a lot of the poor and ignorant members of society who were unable to seek justice due to their poverty and ignorance, and as a result, any member of the community was allowed to submit a petition for suitable directives.



When the legislature and the executive branch of government fail to fulfill their respective responsibilities. The public’s faith in the Constitution and democracy is eroded as a result of this. The judiciary is looked to by the inhabitants of the country to defend their rights and freedoms. This puts enormous pressure on the judiciary to intervene in the suffering of the people.
Judicial Enthusiasm, or the desire of judges to engage in societal improvements as they occur in changing times. It promotes Public Interest Litigation and loosens the ‘Locus Standi’ concept.
There may be certain areas that have not been addressed by legislation. As a result, it is up to the courts to enact judicial law and respond to changing societal demands. Certain articles in India’s Constitution have been enacted, allowing the court to legislate or play an active role.


The Supreme Court decided in the landmark case of Kesavananda Bharati versus the State of Kerala that modifications to the Constitution affect essential elements such as democracy, rule of law, the federal system, secularism, and judicial independence are unconstitutional. The theory of the basic structure arose because of this. It’s worth noting that the idea of basic structure is not addressed in the Constitution’s text, but rather established by the courts. The court assessed the misuse of policies published by government institutions, which is the finest illustration of judicial activism in the Indian context.
The Supreme Court’s Golak Nath v State of Punjab case is another example of judicial activism. Despite the fact that Parliament can amend any provision of the Constitution in the exercise of its constituent power, the Supreme Court declared for the first time, by a majority of 6 to 5, that the fundamental rights enshrined in Part III of the Constitution are immutable and thus beyond the amendatory process.
As he saw the necessity for rules beyond the laws, Justice Gajendragadkar used his decisions to incorporate numerous regulations into the labour law system. In the matter of G. Satyanarayana versus Eastern Power Distribution Company, he ruled that if a person was fired for misbehavior, an obligatory inquiry be undertaken to allow him to explain himself.
The case of Vishaka vs. Rajasthan State clearly demonstrates the need for judicial activism. Due to the lack of enactment of the enforcement of gender equality laws against sexual harassment, the Supreme Court declared that it has become necessary for the court to establish standards to be followed at all workplaces in order to ensure decent treatment of women. Furthermore, the court ordered that these recommendations be recognised as law under Article 141 of the Constitution until Parliament passes legislation to that effect. Such examples demonstrate the importance of judicial activism in India.
When the judiciary added several more rights into Article 21 that were not originally specified in the language of the Constitution, the scope of judicial activism continued to expand. This covers, among other things, the right to a fair trial, the right to water, the right to health and medical treatment, the right to a timely trial, and the right to legal help. As a result, we can observe that the idea of judicial activism is increasingly being used in the interpretation of Article 21.


In the United States, there are two different judicial philosophies: judicial activism and judicial restraint. Those who support judicial restraint argue that judges’ roles should be strictly circumscribed; their duty should be to simply state what the law is, leaving the task of drafting laws to lawmakers and executive branch officials. Judges should not, under any circumstances, let their own political views and policy objectives influence their judicial decisions. This viewpoint believes that the writers of the constitution and its amendments had a clear ‘original purpose,’ which must be followed by the courts.
Judicial restraint is compatible with and complementary to the state’s three separate branches of government’s power balance. It does this in two ways: first, judicial restraint recognises and encourages the equality of the other two departments with the judiciary by limiting the court’s inter-branch intervention. Second, judicial restraint tends to safeguard the judiciary’s independence. When courts enter the legislative or administrative realms, voters, lawmakers, and other elected officials will nearly always decide that judges’ actions should be thoroughly scrutinised.
In a December 2007 judgment, the Supreme Court of India called for judicial restraint and asked courts not to take over the functions of the legislature or the executive, stating that the Constitution provides for a broad separation of powers and that each organ of the state must respect and not encroach on the domain of others.


According to the Separation of Powers Theory, the three branches of government must be separate and autonomous from one another. Any fusion of these three tasks into a single or two organs is detrimental to individual liberty. Separation of powers between the three organs is necessary for the government’s effectiveness and the people’s liberty.
The citizens’ life and liberty, according to Montesquieu, would be jeopardized if judicial and legislative powers were combined, because the judge would then function as a legislator. Even if the judicial and executive authorities are combined, the judge will operate as an oppressor, leading to arbitrary decisions. As a result, he claims that the idea of separation of powers is timeless in a modern democratic administration.
In India, this idea is not strictly adhered to. By entrusting each organ in a certain meaning, the Constitution has sought to follow it. For example, Parliament is prohibited from debating the behaviour of any Supreme Court or High Court judge under Article 121. Similarly, under Article 212, the courts are limited in their ability to investigate legislative procedures. As a result, it is obvious that the Constitution does not see the court as a stand-in for the legislative or the administration in any way. The courts must impose their own restrictions. This is when judicial restraint (an antithesis to judicial activism) comes into play.
Because the concept of separation of powers has already been established, the judge’s function is restricted to following and applying the legislature’s laws. Supporters of judicial restraint think that a judge is obligated to apply a law regardless of whether it is fair to public interests. Regardless of the intent of any regulation, rigorous execution might have unintended consequences. The function of the judiciary has been evaluated, and it has been discovered that a judge’s responsibilities are limited to those of a legislator as well. Any legislator’s ability to grasp the limitless possibilities of events arising from the same subject of law is limited.


When judges believe they can solve all of society’s problems and begin performing legislative and executive functions (because the legislature and executive have, in their opinion, failed in their duties), a slew of issues arises, including a lack of expertise and distortion of the separation of powers doctrine. Judges may, without a doubt, act in severe situations, but they lack the knowledge and resources to tackle fundamental societal issues. However, due to the complexity of situations in today’s world, the Indian scenario also necessitates judges’ inventiveness and application of their own thoughts while interpreting.


Judicial Activism

Article Judicial Activism


Indian Polity by M Laxmikanth


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