Judicial Activism In India: Whether Constitutional Necessity Or Encroachment On Executive And Legislative Domain ?

The term “Judicial Activism” is used for proactive role played by the Supreme Court and High Courts in the process of delivery of justice. Judicial Activism denotes that Courts are not satisfied with literal interpretation of the Constitution and other laws but go into broader principles involved in them.

Constitution has granted the Supreme Court and the High Courts power of judicial review of legislative actions and administrative actions. Any laws, which are inconsistent with provisions of Fundamental Rights, can be invalidated under Article 13 of the Constitution.

In the initial years the Supreme Court had done literal interpretation of the provisions of the Constitution and refused to indulge in wider and purposive interpretation. In A. K. Gopalan Vs. State of Madras (  AIR 1950 SC 27)  the Supreme Court interpreted  “procedure established by law” narrowly in context of preventive detention laws  and held that the Constitution gave the legislature the final word to determine the law. Similarly in case of  ADM Jabalpur Vs. Shivakant Shukla (1976 AIR 1207)   the Supreme Court held suspension of  Article 21 valid under emergency. The approach of the Supreme Court in ADM Jabalpur was widely criticized.

Thereafter there  has been  a shift in approach of the Supreme Court and the Supreme Court  has been playing a  more proactive role. The Scope of judicial review has been expanded. The Supreme Court is also filling the legislative and policy gaps through its judgments.  The Supreme Court has also been furthering the socio-economic causes through Public Interest Litigations.

Expansion of Judicial Review

Supreme Court has expanded the scope of judicial review by wider interpretation of fundamental rights.

Article 14 has been widely interpreted. Earlier the Supreme Court was invalidating those laws only  under Article 14 which were violating principle of reasonable classification. But the Supreme Court gave a new dimension to Article 14 in E A Royappa Vs. State of Tamil Nadu (1974 AIR 555)   wherein it held that right to equality is antithesis to “arbitrariness”. The Supreme Court has subsequently invalidated many laws on the ground of arbitrariness. . Supreme Court has done literal interpretation of procedure established by law in A. K Gopalan. But in  Maneka Gandhi Vs. Union of India  (1978 AIR 597) the Supreme court read “due process of law” in “procedure established by law”. Thus law should not only be established by procedure of law but it should also be fair, just and reasonable.

The Supreme Court has also done liberal interpretation of  Article 21. Right to life and liberty has been held to incorporate varied rights including that of right to pollution free environment, right to shelter, right to education, right to speedy trial etc.

Filling Legislative And Policy Gaps

The Supreme Court has in many cases issued directions to fill policy and legislative gaps. In D. K Basu Vs. State of West Bengal ((1997 (1) SCC 416)  the Supreme Court had issued guidelines for procedures to be followed during arrest.  In Vishakha Vs. State of Rajasthan (1997) 6 SCC 241), the Supreme Court had issued directions for protection of women from sexual harassment at work places.

Public Interest Litigation

Constitution does not have any provision for Public Interest Litigation. Public Interest Litigation is a judicial innovation. Public Interest Litigation can be entertained by Court even if a person is not aggrieved. Public Interest Litigation has helped in bringing out reforms and socio-economic changes but it is subject to abuse also. There are various instances wherein Public Interest Litigation has been used for publicity or ulterior motives rather than public interest.

Basic Structure

Doctrine of Basic Structure is a judicial innovation propounded in Keshvanand Bharati Vs. State of Kerala (1973) 4 SCC 225 judgment.  The Supreme Court has held in the said case that there are certain basic structures of the Constitution which can not be amended. Thus, the Supreme Court or the High Courts can invoke basic structure principles to invalidate a law. The Supreme Court invalidated NJDAC Act in Supreme Court Advocate On Record Association Vs Union of India (2016) 5 SCC 1 on the ground of violation of independence of Judiciary which the Supreme Court held to be  basic structure of the Constitution.

Constitutional Morality

The Supreme Court in some of recent judgments has propounded new doctrine of constitutional morality.  The term constitutional morality denotes commitment to constitutional values. The Supreme Court can test social norms, administrative acts or even legislation on the anvil of constitutional morality and invalidate them.

Judicial Activism and Separation of Powers

Judicial Activism has no doubt helped in delivering holistic justice and protecting rights of citizens.  But it has to be appreciated that Constitution entrusts different functions to different organs i.e. executive, legislature and judiciary. Every organ has to function within the limits provided by the Constitution. Overstepping limits by any organ including the Judiciary will not be healthy for Indian democracy.

There is thin line between Judicial Activism and Judicial Overreach.  Judiciary should practice self-restraint and should not overstep its limit and indulge in Judicial Overreach or Judicial Adventurism.

_______________________________