Judicial Activism


“The jeweled crown of a constitutional republic is judicial activism.”

What is judicial activism?

“Judicial activism refers to the court’s decisions when the judges use their individual intelligence and wisdom that does not accord with the rigidity of the original ordinance, in addressing dilemmatic cases,

Where judicial activism first began
  • As judicial review became possible under the unwritten constitution during the Stuart era in Britain (1603–1688), judicial activism emerged.
  • In the article “The Supreme Court: 1947,” written by Arthur Schlesinger Jr. and published in the January 1947 issue of Fortune Magazine, the term “judicial activism” was coined.He used this phrase to call attention to the legal activists of the day.
  • In the 1959 case of Theriot v. Mercer, a judge in the court used the phrase for the first time.
  • The notion of judicial activism was first established in India in the middle of the 1970s. The nation’s judicial activism was founded by Justices V. R. Krishna Iyer, P. N. Bhagwati, O. Chinnappa Reddy, and D. A. Desai.
Manifestation of judicial activism
By way of judicial review
  • The notion known as “judicial review” allows the judiciary to examine legislative and executive decisions.
  • A modern government system’s check and balances are demonstrated by judicial scrutiny.
  • It grants the Supreme Court the authority to investigate the legality of any law and, if it finds that the law is incompatible with the Constitution’s provisions, to declare the law to be unconstitutional.
Through litigation in public interest
  • A lawsuit brought before a court to safeguard the public interest is referred to as public interest litigation.
  • Public interest lawsuits gave judicial activism in India more traction. No law or legislation contains a definition of it.
  • In India, PIL was initially used to improve the lot of the socially marginalized groups who, due to illiteracy and poverty, were unable to seek justice from the courts.
  • Justices P.N. Bhagwati and V.R. Krishna Ayer have been instrumental in encouraging this method of contacting the national supreme court.
With the aid of constitutional interpretation
  • Constitutional interpretation includes all of the techniques or tactics that can be used to settle arguments over the interpretation or application of the Constitution.
  • The language of the Constitution and its “original history,” which includes the broader social and political environment, are potential sources for interpretation.
By gaining access to international law to protect constitutional rights
  • In its rulings, the court cites numerous international laws.
  • The supreme courts take this action to protect citizens’ rights.
  • In several occasions, the Supreme Court’s rulings have reference to international law. In Jeeja Ghosh v. Union of India, the SC has upheld the rights of disabled people to live with dignity. The Vienna Convention on the Law of Treaties of 1963, which calls on India’s internal legislation to abide with international obligations, was emphasized by the court.
Judicial activism cases
  • All of this started when the Allahabad High Court rejected Indira Gandhi’s candidacy in 1973.
  • In the Golaknath case, the issues at stake were whether or not the modification constituted a law and whether or not Fundamental Rights could be modified. The Supreme Court ruled that Article 13’s restriction on parliament does not apply to fundamental rights and that a new Constituent Assembly would be needed to modify such rights. Additionally, it was noted that while Article 368 outlines the process for amending the Constitution, it does not grant Parliament the authority to do so.
  • Kesavananda Bharati case: This ruling outlined the Constitution’s fundamental framework. The SC ruled that although if the Parliament had the authority to amend any portion of the Constitution, including the Fundamental Rights, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the rationale behind Indian law, which allows the judge to invalidate a parliamentary amendment if it conflicts with the Constitution’s fundamental principles.
  • The SC revoked 122 telecom licenses and spectrum given to 8 telecom companies in the 2G scam on the grounds that the distribution procedure was defective.
  • In 2018, the Delhi-NCR region was subject to a general ban on firecrackers by the Supreme Court, with a few exceptions.
  • In order to prosecute alleged money launderer Hasan Ali Khan, the SC used terror statutes.
Judicial Activism’s Benefits and Drawbacks
Advantages of judicial activism
  • Judicial activism lays out a framework of checks and balances for the other governmental branches. It emphasizes the necessity of creativity through a resolution.
  • Judicial activism gives judges the discretion to exercise their own judgment in situations where the law is unable to create a balance.
  • It develops confidence in judges and offers understanding of the problems. Judicial activism has no bearing on the judges’ commitment to uphold the rule of law in the nation. Only actions that judges deem appropriate within predetermined boundaries are permitted. Consequently, it demonstrates the faith that has been ingrained in the legal system and its verdicts.
  • Judicial activism enables the judiciary to prevent the state government from abusing its authority when it meddles in local affairs and causes harm to the populace.
The drawbacks of judicial activism
  • When it overrides any existing legislation, it blatantly transgresses the constitutionally mandated limit on the use of power.
  • Once a judge has formed an opinion in a case, that judgment serves as the benchmark for all subsequent cases.
  • As the decision may be affected by personal or selfish intentions, judicial activism can be harmful to the general public.
  • Court interventions that are made repeatedly have the potential to erode public confidence in the honesty, excellence, and effectiveness of the political system.

While judicial activism is viewed favorably in addition to the legislative branch’s shortcomings, overstepping other political branches’ purview is seen as an intrusion into the democratic process. However, the institution’s relevance comes from its function as a haven for those who have been wronged.


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