The Indian judiciary has often been described as the “sentinel on the qui vive” , the guardian always on alert to protect the Constitution and the rights of citizens. While courts traditionally decide disputes brought before them, the Indian judiciary has gone a step further by engaging in what is popularly known as judicial activism. This approach has played a crucial role in interpreting the Constitution dynamically, expanding the ambit of fundamental rights, and ensuring justice in situations where legislative or executive action has fallen short.
This article explores the concept of judicial activism, its historical evolution, key cases, criticisms, and its continuing relevance in shaping Indian democracy.
What is Judicial Activism?
Judicial activism refers to the proactive role of courts in interpreting laws and the Constitution to address issues of public importance, often stepping in where legislative or executive organs fail to act. Unlike judicial restraint, where courts limit themselves to applying laws as written, judicial activism involves creative interpretation to achieve justice.
In India, judicial activism has been closely tied to the idea that the Constitution is a living document. Courts have not hesitated to expand the meaning of rights enshrined in Part III to meet the needs of a changing society.
Historical Background
The seeds of judicial activism were sown during the early years of the Supreme Court but truly blossomed in the post-Emergency era. Initially, the Court adopted a conservative stance, focusing narrowly on the letter of the law. However, the experiences of the Emergency (1975–1977), where rights were curtailed and judicial independence compromised, pushed the judiciary towards a more activist role.
The introduction of Public Interest Litigation (PIL) in the late 1970s and early 1980s by judges like Justice P.N. Bhagwati and Justice V.R. Krishna Iyer opened the doors of the Supreme Court to the masses. Ordinary citizens and NGOs could now file petitions on behalf of disadvantaged groups, and the Court began addressing issues ranging from bonded labor to environmental protection.
Landmark Judgments Illustrating Judicial Activism
- Kesavananda Bharati v. State of Kerala (1973) – The Court laid down the Basic Structure Doctrine, holding that Parliament cannot amend the Constitution to alter its basic structure. This was a classic case of judicial activism, as the Court created a principle not expressly found in the Constitution but derived from its spirit.
- Maneka Gandhi v. Union of India (1978) – The Court gave an expansive interpretation to Article 21 (Right to Life and Personal Liberty), holding that no person can be deprived of life or liberty except by a procedure that is “just, fair, and reasonable.” This judgment transformed Article 21 into the fountainhead of numerous derived rights.
- Hussainara Khatoon v. State of Bihar (1979–80) – Through a series of PILs, the Court highlighted the plight of undertrial prisoners and recognized the Right to Speedy Trial as part of Article 21.
- Vishaka v. State of Rajasthan (1997) – In the absence of a legislative framework, the Court laid down guidelines on sexual harassment at the workplace, treating them as binding until a law was enacted. This was judicial lawmaking at its most direct.
- M.C. Mehta v. Union of India (1986 onwards) – A series of environmental cases where the Court invoked the principles of sustainable development and the polluter pays doctrine, significantly shaping India’s environmental jurisprudence.
- Navtej Singh Johar v. Union of India (2018) – The Court struck down Section 377 of the Indian Penal Code (now BNS equivalent), decriminalizing consensual same-sex relations, reaffirming the right to dignity and equality for the LGBTQ+ community.
Tools of Judicial Activism
The Indian judiciary has used several tools to advance activism:
- Expansive interpretation of fundamental rights – especially Article 21, which has been read to include rights to health, environment, shelter, privacy, and education.
- Public Interest Litigation (PIL) – allowing access to justice for marginalized groups.
- Judicial guidelines – such as in Vishaka, where the Court filled legislative gaps until Parliament acted.
- Doctrines – like the Basic Structure Doctrine, which ensures constitutional supremacy.
Criticism of Judicial Activism
While judicial activism has been praised for advancing rights and holding the State accountable, it has also faced criticism:
- Judicial Overreach: Critics argue that the judiciary sometimes crosses its limits by entering the policy domain, which should be the prerogative of the legislature and executive.
- Lack of Accountability: Unlike elected representatives, judges are not directly accountable to the public, raising concerns when they make policy-like decisions.
- Inconsistency: Activist decisions may depend on the individual philosophy of judges, leading to unpredictability in constitutional interpretation.
Judicial Activism vs. Judicial Restraint
The tension between activism and restraint reflects the balance of power in a democracy. Judicial restraint emphasizes separation of powers and minimal interference, while activism stresses the judiciary’s role as a guardian of rights. In India, the pendulum has often swung depending on the context: during times of governmental inaction or violation of rights, activism has surged; during stable phases, restraint has been advocated.
Contemporary Relevance
In the 21st century, judicial activism continues to be relevant in addressing issues like environmental degradation, digital privacy, gender equality, and governmental accountability. The Puttaswamy case (2017), which recognized the Right to Privacy as a fundamental right, is a recent example of the judiciary adapting constitutional rights to modern challenges.
As India grapples with rapid technological change, climate crises, and social inequalities, judicial activism will remain a vital tool to ensure that the Constitution evolves with time.
Conclusion
Judicial activism in India has been a double-edged sword — celebrated for expanding freedoms and criticized for overstepping boundaries. Yet, it cannot be denied that without judicial activism, many vulnerable groups would have remained unheard, and several constitutional guarantees would have remained hollow promises.
The Indian judiciary, through activism, has reaffirmed that the Constitution is not a static document but a living charter of rights. The challenge moving forward is to strike a balance between protecting rights through activism and respecting the domain of other branches of government.