Judicial Activism

Judicial Activism means the Rulings of the Court based on political and personal rational and prudence of the Judges presiding over the issue. It is a legal term referring to Court Rulings based, in part or in full on the political or personal factors of the Judge, rather than current or existing legislation.

According to SP Sathe, a Court giving a new meaning to the provisions to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an Activist Court. The Supreme Court of India in its initial years was more a Technocratic Court but slowly began to become more active interpretation of law and statutes but the whole transformation took years and it was a gradual process. The origins of the Judicial Activism can be seen in the Court’s premature and early assertion regarding the essence and nature of Judicial Review.

Indian Judicial Activism can be positive as well as negative- A Court engaged in altering the power relations to make them more equitable is said to be positively activist and a Court using its ingenuity to maintain Status Quo in Power Relations is said to be negatively activist.


After the independence Judicial Activism was almost silent for the first decade, the executive and the legislative organs of the Government actively dominated and intervened in the working of the Judiciary.  It was in the 70s the Apex Court started viewing the Judicial and Structural view of the Constitution.

In the landmark KESAVANANDA BHARTI CASE, just two years before the Emergency Declaration the Apex Court of India declared that the executive had no right to intercede and temper the Basic Structure of the Constitution. Though the exigency imposed by the then Prime Minister Indira Gandhi could not be prevent by the Judiciary, the concept of Judicial Activism started gaining more power from here.

In the IC GOLAKNATH AND ORS V STATE OF PUNJAB AND ORS, the Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the Legislative Assembly.


In HUSSAIN KHATOON (1) V STATE OF BIHAR, the inhuman and barbaric conditions of the under trial prisoners reflected through the articles published in the newspaper many prisoners who were under trial had already served the maximum persecution without being charged for the offence. A Writ Petition was filed by an Advocate under ARTICLE 21 of the Constitution of India. The Apex Court accepted it held that right to speedy trial is a fundamental right and directed the State Authorities to provide free legal facilities to the under-trial inmates so that they could get justice, bail or final release.

Another important case SHEELA BARSE V STATE OF MAHARSHTRA a letter written by a Journalist was addressed to the Supreme Court advocating the custodial violence of women prisoners in jail. The Court treated that letter as a writ petition and took cognizance of that matter and issued the opposite guidelines to the concerned authorities of the State.

In SUNIL BATRA V DELHI ADMINISTRATION the court exercised its epistolary Jurisdiction and a letter written by prisoner was treated as a petition. The letter supposed that the Head Warden atrociously inflicted pain and assaulted another prisoner. The Court stated that the technicalities cannot stop the Court from protecting the Civil Liberties of the individuals. Some instances when the mechanism of Judicial Activism turned to the Judicial Overreach. The Parliament of India has held responsible or accused the Judiciary for intervening and overreaching its Constitutional Powers.

In the SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION V UNION OF INDIA the National Judicial Appointments Commission (NJAC) ACT and the Constitutional Amendment was declared Unconstitutional as it was violating the Judicial Independence. And the existing Collegiums System pertaining to transfer and appointment of Judges again in operation JUSTICE KHEHAR SAID- the absolute independence of Judiciary from other organs of governance, protects the rights of the people.

STATE OF RAJASTHAN V UNION OF INDIA- One of the fine examples of judicial restraint is the case of State of Rajasthan v Union of India in which the Court rejected the petition on the ground that it involved a political question and therefore the Court would not go into the matter

Arthur Schlesinger Jr introduced the term “Judicial Activism” in January 1947. The term Activism is used in Legal, Political, Rhetoric and an Academic Research.  In Academic activism usually means only the willingness of the Judge to strike down the action of another branch of Government or to overturn a judicial precedent, with no implied judgment as to whether the activist decision is correct or not Activist Judges enforce their views of Constitutional Requirements rather than deferring to the views of Constitutional Requirements rather than deferring to the views of other Government Officials or earlier Courts.

It is sometimes used as an antonym of Judicial Restraint. It is usually a pejorative term, implying that Judges make Rulings based on their own Political Agendas rather than precedent and take advantage of Judicial Discretion. The definition of Judicial Activism and the specific decisions that are activist are controversial political issues. The question of Judicial Activism is closely related to Judicial Interpretation, Statutory Interpretation and Separation of Powers. Judicial Activism and Judicial Restraint have different goals. Judicial Restraint helps in preserving a balance among three branches of the government- Judiciary, Executive and Legislative. In this case, the Judges and the Court encourages reviewing an existing law rather than modifying the existing law- Judicial Activism gives the power to overrule certain acts or judgments.


ARTICLE 21 Protection of Life and Personal Liberty- No person shall be deprived of his life or personal liberty except according to the procedure established by law

ARTICLE 37 Application of the Principles Contained in this Part- The provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws

ARTICLE 38 State to Secure a Social Order for the Promotion of the Welfare of the People- [(1)] The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.

[(2)] The State shall, in particular, strive to minimize the inequalities in income and endeavor to eliminate inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups.

CONCLUSION- The Judicial Activism has contributed to the developed interpretation of law. However, when Judges start thinking they can solve all the problems in society and start performing Legislative and Executive functions (because the Legislature and Executive have in their perception failed in their duties) all kinds of problems are bound to arise. Hence Function of the Court is not merely to interpret law but to immunize them. Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor resources to solve major problems in society. Also such encroachment by the Judiciary into the domain of Legislature or Executive will almost invariably have a strong reaction from politicians and others. The Court has functions to immunize legislators from Fundamental Rights.  

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world.

You may also like to read:

Seperation of Powers – 1

The need to work on our Legal Language

Current Problems in our Judiciary System


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.