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Essay on “Judicial Activism” Complete Essay for Class 10, Class 12 and Graduation and other classes.

Judicial Activism

Essay No. 01

Judicial activism’ is the current term in use. In a way, it is an absurd term—if we have a judiciary, it is to be hoped that its members will be active; but the term ‘activism’, of course, implies Intervention’.

Judicial activism involves innovative interpretations of the nuances of law. According to Justice J.S. Verma of the Supreme Court, “The role of judiciary in interpreting existing laws according to the needs of times and filling in the gaps appears to be the true meaning of judicial activism.’ In other words, it is judicial activism that helps to advance the cause of law, and it has been a continuous process in India. Judicial activism is, in fact, an essential part of judicial review.

In this context, it may be pointed out that the doctrine of the basic structure of the Constitution limits the scope of amending power of Parliament in substantial ways. Some of the features of the basic structure, though not actually listed, include rule of law, equality, federalism, secular polity, and, most important, judicial review. The judgment enunciating that the concept of the basic structure of the Constitution may be described as ‘judicial activism’ and it came more than twenty-five years ago. A decade later came the public interest litigation (PIL) in favour of social action and the courts accepting its validity and stepping in to set things right. The PILs are a big weapon to the social-spirited people, the seekers of truth and the votaries of justice. The amount of support rendered to the social issues through the public interest litigations has come as a big shield against the government’s excesses as well as apathy.

Ideologically, such litigation and judicial intervention born out of it has transformed the “classical liberal rights model enlisted in the Constitution (Part III) into a paradigm of people’s rights”. Such litigation has indeed democratized the access to the apex court. These cases have broadened the scope of fundamental rights to include right to dignity, shelter, health, environment, privacy, etc. They have given rise to fresh forms of judicial scrutiny of governmental institutions whether they be hospitals, prisons or juvenile homes.

Public interest litigation—perhaps more aptly termed social action litigation—grew because public-spirited individuals began to seek redress in matters affecting them not individually, but the rights of the people in general. Termed as public interest litigation, it was initially encouraged in the 1980s by Justice P.N. Bhagwati. The then Justice M.N. Venkatachalliah came on the scene and he set the tone for a new activism. As the Chief Justice, he adopted a posture independent of the government and encouraged to the filing of PIL cases. He took the lead and judges began to get bolder.

Polity usually comprises three wings—Executive, Legislature and Judiciary. Each generally has its own role to perform. In this context, it may be worthwhile recalling the views of Professor Jeffrey Jowell from England. Outlining the guiding principles of judicial activism, he said, “judges may intervene if the Executive exceeds the terms of power conferred on them.’ So is judicial intervention to be invited if the State refuses to comply with the statutory provisions? It is also to be seen that policy is not sacrificed for principles. We live in an era where governments are not very sensitive to public issues. Judges, in the circumstances, provide better guide posts to the state so that policy is not ignored. Elected representatives must fulfill the legitimate aspirations of the people. Judiciary, executive and legislature cannot operate in mutually exclusive closed compartments.

True, utilitarian policies socio-economic actions and rational implementation is best tackled by the state, but abuse of power, unfair procedure, unconstitutional action, or even lack of required action may surely be checked by the judiciary. As politicians are elected and judges are not, the former do not like to be pulled up by the latter. However, if the elected representations betray the mandate reposed in them, they surely should be brought to book. And the process is only through recourse to courts. To bring back the rule of law in a peaceful manner and not through bloody revolution, judicial activism is the first step. Judicial activism becomes necessary to put a check on tyranny born out of a temporary political majority in legislature which might otherwise seek to rewrite the Constitution in order to hold on to power. In the same way judicial intervention becomes inevitable when the executive and the legislature become indifferent towards their duties and responsibilities.

In some quarters, there are fears that the judiciary is overstepping its authority that it is trespassing into spheres reserved for the Legislature and the Executive. Policy-making and administration or carrying on the business of government is the executive’s job; to legislate—or change the law—is the prerogative of the legislature, after due debate and discussion on issue of public interest. Indeed, Article 212(1) provides immunity to legislative assemblies from any judicial action over conduct of business in the House. In a similar way, Article 122(1) gives immunity to the members of Parliament for proceedings in parliaments.

In the present wave of judicial activism prompted by public interest suits on issues ranging from out-of-turn allotment of government houses without proper reason, discretionary allotment of petrol pumps and LPG (Liquefied Petroleum Gas) connections to those having influence with highly placed bureaucrats/politicians, to the fraud involving animal husbandry department in Bihar, and, of course, the infamous ‘Hawala cases’, the Supreme Court has taken firm decisions. The Supreme Court’s directions on the Jharkhand imbroglio may be a recent example, but there have been numerous other Instances when either the apex court or the high courts have addressed issues of importance that impact the people and the country. Among such initiatives have been the orders given by the Supreme Court to the Delhi Government to clean the polluted air in the city by phasing out diesel-run public transport in favour of vehicles run on CNG (Compressed Natural Gas).

Judicial activism saw the judges wanting the politician Pappu Yadav with criminal antecedents to be lodged in New Delhi’s Tihar jail as he was virtually making a mockery of his imprisonment in Bihar by ignoring every restriction. Judicial activism also saw the high court’s go into the act in various parts of the country by banning day-long general strikes because of their disruptive effect on daily life or asking that political processions be restricted to certain localities and certain specified periods. It was judicial activism that helped the Election Commission to insist on the publication of the assets of candidates before contesting the election, and even more important, declare if any criminal charges existed against them.

These are citizen-friendly moves. True, in some cases. the court has assumed the role of issuing directions–telling the CBI to investigate thoroughly and not to close any case without the court’s orders—a job of the Executive. It may also be pointed out that as the law stands, the CBI is an investigating agency under a particular minister, and there is no provision in law that the agency should report to a court and not to the minister concerned. And the CBI is also. under law, not empowered to investigate cases in a state without the state government’s permission. The law, as it stands, may be productive of abuse, but changing that law is the business of the legislature, and of not the courts. So, here is the judiciary actually legislating.

However, the citizens are helpless if the executive fails to do anything about the spreading canker of corruption in public life, and the legislature, including the highest one, is unable to do anything except to paralyze itself. Having lost all hope of any self-reform by the political system, most Indians have started viewing politicians of all hues with cynicism, even contempt. They look up to the higher judiciary as the only possible redeemer in the despairing situation as the judiciary comes to the people’s rescue and supports them to stand upright. Although all is not well with the judiciary too, it is still the best guard of national interests and the upholder of the rights of people-guaranteed in Constitution. It tends to be so even at the risk of being dubbed as overactive. The former Chief Justice of India A.M. Ahmadi has opined. The present situation is not really a case of one democratic institution trying to exert itself over another: rather, it is a case of citizens finding new ways of expressing their concern for events occurring at the national level, and exerting their involvement in the democratic process.”

As the incumbents of Parliament in recent years have become less representative of the will of the people. there has been a growing sense of frustration with the democratic process. The ordinary citizens have reacted in two ways. One group—whose members constitute a large majority—has chosen to look upon these developments as an unavoidable feature and has adapted itself to these uncertainties while continuing to bemoan its destiny. The other group which constitutes a very small minority has chosen a more positive innovative approach and has sought to achieve its objectives through the judiciary. This, it does by approaching public-spirited organizations and bodies, who in turn file public interest cases before the courts.

This would have been wholly unnecessary if the issues were fully discussed in Parliament and people were kept informed of developments when such citizens raise grave constitutional issues and exercise their fundamental rights in invoking the jurisdiction, the Supreme Court is left with little choice but to act.

The decline in the role played by the other two institutions of the state has inexorably changed the role of the court from being a “sentinel on the qui vive” to a savior on call. The Supreme Court. as the final court of appeal is known as The court of last resort”, but the wide writ jurisdiction enjoyed by it has often made it the court of first and only resort.

The Indian Constitution allows a person to move the Supreme Court directly for redress of violation of basic rights (Article 32). In the circumstances, the doctrine of separation of powers can only signify a division of functions. If the decisions of the coordinate branches of government are constitutionally correct, the judiciary has no right to interfere. But, if a decision violates a right of the Indian people, it is not constitutionally correct, hence judicial intervention is valid.

Even conscientious and highly knowledgeable citizens of India don’t support judicial activism on the ground that it may lead to a violation of basic principle of democracy—replacing an elected government by a nominated body. In these circumstances there is a fear about the very survival of democracy. If today, the duty of governing the country can be shifted from the government to the Supreme Court, tomorrow it may be shifted from the elected representatives to nominated individuals.

However, in the present circumstances, there appears to be no choice—the judiciary seems to be the hope of the people for restoring lost, democratic rights. After all, how can democracy be better served if, along with the executive and legislature, the judiciary too turns indifferent to the citizens. This could lead to a situation in which the citizens may be compelled to take the law into their own hands. Then, there would be a revolution.

However, ‘activism’ should not become ‘populism’; nor should it lead the judiciary to assume the mantle of arrogant righteousness, which can graduate to despotism. Judges, too, are human and prone to errors and aberrations. Furthermore there can be no escape from an intense debate about the merits and defects of the Supreme Court’s judgments.

Just as the ministers, bureaucrats and legislators are not above criticism, similarly, the judges of the High Court and the Supreme Court cannot be presumed to be beyond scrutiny. Judicial activism should not become judicial fundamentalism, one worry concerning judicial activism is, however, real: what if the orders passed are not enforced? The hope awakened in the public will die out. To obviate such a situation, the courts must seek to enforce their orders—through the contempt power, for instance, or by requiring senior members of bureaucracy to be present during hearings.

It is also necessary that the effort to “redemocratise” India is not left to judges alone. It is the duty of every thinking citizen of this country to help the judiciary in this effort. The media, too, has a role in educating the public and crusading for a clean and efficient administration.


Essay No. 02


Judicial Activism

The Judiciary, as an important agency of the Constitution, entrusted with the responsibility of safeguarding it, is meant to be an active and lively organization. The activities and authority of the Judiciary, like those of the other agencies of the Constitution, have definite and indisputable bases in the Constitution. As long as it performs its duties as authorized by the Constitution, the actions of the Judiciary can be considered only as routine and regular. If there is increased incidence or frequency of judicial activity, such activity should rather be considered as being due to the increasing relevance of the Judiciary than as an attempt by the Judiciary to exceed the role assigned to it by the Constitution. The term ‘activism’, if it is meant to indicate liveliness and sensitivity in the Judiciary, is always relevant, because the Judiciary was, in fact, originally designed as a responsive and responsible organization. But on the other hand, if activism results in unauthorized activity or cavalierism, then the context and circumstance in which such activity is exercised need to be analyzed and understood, before an accusation of irresponsibility is directed at the Judiciary.

Since the term ‘Judicial Activism’ has gained currency only in recent times, it may be reasonably assumed that the Judiciary conducted itself more properly and soberly in the past. On a different plane, if it were to be conceded that recklessness and abnormal activism do exist in the Judiciary now, it would mean that the Judiciary has indeed usurped the powers of both the Executive and the Legislature. But since these propositions will also mean that the powers of the Executive and the Legislature were depleted, it will be as important to investigate how such depletion was possible, as to criticize the Judiciary for it. Put differently, it may be sensibly deduced that the Judiciary’s ability to assert itself, duly or unduly, was due to the weaknesses of the Executive and the Legislature, and the loss of credibility they suffered as a result. Hence, the responsibility for the ‘activist’ role of the Judiciary lies with the Executive and the Legislature, because they failed to preserve and execute their powers and to discharge their responsibilities. This argument substantially shifts the focus of attention from the alleged adventurism and unorthodox of the Judiciary to the arrogance and inefficiency in the functioning of the Executive and the Legislature.

It can be established, with necessary vehemence, that over the years, successive governments have manipulated laws and breathed conventions to the extent, that on several occasions in various parts of the country, it became difficult to believe that civility and the rule of law prevailed. Such blatant assaults on propriety and ethos could not be challenged by a confused, bewildered and incoherent society. The widespread prevalence of corruption and the tendency for mayhem and anarchy, sustained by a sizable proportion of the politicians, having absolute disregard for decorum and propriety, often with the tacit support of supposedly responsible governments, had to be curtailed, in order to restore the balance and stability of society. To offset the misdeeds of those, who, owing to their cowardice and irresponsibility, surrendered their powers to the forces of misrule, some drastic, unconventional and assertive foray was necessary. Judicial ‘activism’, as recognized now, is only a timely and appropriate step taken to save the polity from the possibility of disaster.

Though certain aspects of judicial functioning in recent times do give some credence to the allegations of haste, yet there is not enough evidence to believe that the Judiciary has, in this period of hyperactivity, cut corners or shown a tendency for chicanery, while dispensing justice. Though some inconvenience was caused by certain decisions of the Judiciary to a few people, no serious allegation has yet been raised about misinterpretation of laws or miscarriage of justice. Since the judicial organization is hierarchical, the errors that may be committed in some of its levels can be rectified by the advice and strictures of its higher levels. It must therefore be conceded, that on the whole, while being active, the Judiciary cares to be restrained. The Judiciary has shown by its conduct, that more than the paucity of laws, it is the incompetence of those authorized to implement them, which is responsible for the sorry state of affairs.

However, as many in the Judiciary also wish, let this phase of activism last only as long as it is necessary; until the time the Executive and the Legislature realize their mistakes and retrieve their courage and their sense of responsibility to put their houses in order. The Judiciary, on its part, has to carry out the herculean task of deciding on the innumerable cases that beset the Courts all over the country. Though because of the structure and priorities of the judicial system, which do not permit the dispensation of justice without due caution and circumspection, the Judiciary cannot be blamed more than the system, for the piling up of cases. The Judiciary should explore ways and create means which will make the process of litigation simpler and more effective. If justice is delayed, justice will be denied, but if justice is hurried, justice may be buried! What the Judiciary may do is strike a proper balance between these two propositions.

Judicial activism will have served its purpose substantially if the Executive and the Legislature at least acknowledge the need to reform themselves. It is an indication of the popularity and acceptance of the phenomenon of ‘Judicial Activism’, that the ordinary polity has not opposed it. Rather, the common man is beseeching the Judiciary for more assertive actions on the one hand, and on the other, besieging it with public interest litigation’s.


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