Judicial Activism – Judiciary in Action

Judicial Activism

In recent times, we see that the Indian Judiciary is playing an active role and is not just a silent spectator of the policies. In India, there is an exploitation of fundamental freedom of the citizens, that is right to life, right to breathe clean air, right to proper livelihood, and more that are guaranteed under Article 21. The Indian Constitution provides for separation of powers and demarcates them into three types of machinery, namely, the Legislature, the Executive, and the Judiciary.

When the legislature and the executive fail to practice their powers, the separation of control remains a concept in textbooks only and the Judiciary takes action in the guise of judicial review, which is a fundamental feature of the Indian constitution. However, judicial activism has always been a controversial and heated debatable topic, due to the recent developments in this regard.

In the last two decades, the judges of the Supreme Court and high court have ignited this debate. Judicial activism can be understood as the opposite of judicial restraint. It is a kind of philosophy, which gives immense power to the Judiciary to go beyond the constitution or statutes to consider the societal implications of its decisions. Many laws may not suffice the emerging issues, that is when judicial activism comes into the picture. It ensures that truth shall prevail, and the unheard voices do not get buried by vocal voices.

Difference between Judicial Review and Judicial Activism

Judicial Review and Judicial Activism are closely related to each other; however, they are not a carbon copy of each other. Judicial review is the power of the Judiciary to review the laws and order of the country and to validate the same. On the other hand, judicial activism refers to the power of enforcing what is beneficial for society at large. The power is limited to the supreme court and high court only, which means that it deprives subordinate courts of the power of declaring a law or an order as unconstitutional or void.

Theories related to Judicial Activism

Theory of Vacuum Filling

According to this theory, a vacuum gets created in the governance system due to the inaction of any organ. This vacuum destroys the democratic setup of a country. Hence, to overcome this vacuum, other organs of the government become active and expand their horizons and take up this vacuum. This vacuum is usually a result of inactiveness, incompetence, disregard of the law, negligence, corruption, and lack of character among legislature and executive. Hence, the only organ of governance we get left with is the judiciary. Judiciary fills up the vacuum created by the Legislature and the Executive. So, according to this theory, judicial activism is the act of filling up the vacuum.

Theory of Social Want

According to this theory, Judicial Activism emerged due to the failure of the legislations to cope up with the problems of the country. As there was no pathway to solve the problems, it became incumbent for the Judiciary to address the ongoing issues. The only way left for the Judiciary to address these problems was to provide a non-conventional interpretation to the existing legislation, to apply them for the greater good. The supporters of this opinion are of the view that Judicial Activism plays a vital role in bringing societal transformation.

Constitutional Powers

Article 142 of the Indian Constitution is one of the most crucial constitutional provisions which extends extraordinary powers to the Supreme Court. This particular provision gives immense power to the Supreme Court to pass a decree or an order to ensure complete justice in the matters pending before it. The law-making power in India lies solely to the parliament. The Supreme Court can legislate according to this article.


However, this happens only when there is a vacuum in law on a subject matter. The directions or rules will stay in existence until the time parliament makes proper legislation on the subject matter. In Vishakha v. State of Rajasthan, the Supreme Court laid down the guidelines and norms against sexual harassment at workplaces until the time legislation gets enacted for the purpose. Supreme Court, in the exercise of the power available under article 32 of the Constitution for the enforcement of fundamental rights did the act. It was further emphasized that it would be treated as the law under article 141 of the Indian Constitution. It becomes imperative for the Judiciary to perform its constitutional obligation where there is no legislation in a particular subject matter.

Beneficial Effects

Before 1970, the view that existed among people was that the parliament is the sovereign body and it can override not only the Executive vis-a-vis Judiciary but also the constitution. This was the ongoing view in the days of the landmark judgment of Golaknath v. State of Punjab. However, in the twin cases of Maneka Gandhi v. Union of India, and Kesavanand Bharati v. the State of Kerala, the judiciary changed its stance and formulated new interpretations of laws based on the principles of humanity, morality, reason, liberty, justice, and restraint along with the wholesome spirit of the Constitution. In the case of Kesavananda Bharati v. The State of Kerala, the court outright rejected the stance that the Parliament is Sovereign.

Pro-Environment Stance of the Judiciary

The Indian courts have taken an active role in protecting the environment and the welfare of the people. After the Bhopal Gas Tragedy, there was an infusion of pro-environmental steps in the Indian constitution by declaring the right to a healthy environment as a fundamental right guaranteed under Article 21.

Social Upliftment

The Judiciary had an active role in the Dalit Jurisprudence to end the worsening conditions of the Dalits. Several judgments were delivered by the Supreme Court for the betterment of the status of Dalits in society.

Human Rights

The judiciary has been consistently focusing on human rights and bringing provisions to attain free-society consonance with new universal socio-political and economic order by evolving some rights as Fundamental Rights under Part III of the Constitution. For example, Right to Information, Right to Work, Right to get minimum wages, Right to a speedy trial, and more.


There has been a lot of criticism against judicial activism; however, judicial activism has played a major role in ameliorating the conditions of the public at large in the country. It cannot turn a blind eye towards injustice just because there is no legislation for the subject matter. In many instances, people are denied the protection of law due to the delayed functioning of the courts. It can be termed as judicial inertia or judicial tardiness. The judicial activism has started with the process to remove such occasional aberrations too. The greatest asset and the strongest weapon of a judiciary is the faith it inspires in the minds of the people.

Judicial activism is a sharp-edged tool which has to be used as a scalpel by a skillful surgeon to cure the malady. Not as a Rampuri knife which can kill.