Judicial Activism

Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.

The powers of the Supreme Court for the protection of the constitutional rights of citizens are of the widest amplitude and there is no reason why the Court should not adopt activist approach similar to Courts in America and to issue to the State directions which may involve taking of positive action with a view to securing enforcement of a fundamental right. The judiciary has been assigned this active role under the Constitution. They not expected to sit in an invory tower like an Olympian closing their eyes uncaring for the problems faced by the society. They have to exercise their judicial powers for protecting the fundamental rights and liberties of citizens of the country. Therefore in order to achieve this mission the judiciary has to exercise and evolve it’s jurisdiction with courage, creativity and circumstances and with vision, vigilance and practical wisdom. Judicial activism and self restraint are facets of that courageous creativity and pragmatic wisdom. 

One should, however, understand that this exercise of authority of the judiciary is not for vain glory but it is in discharge of its constitutional obligations. For otherwise the judiciary will become crippled which in turn will cripple democracy. When the executive and legislature are apathetic and fail to discharge their constitutional obligations, the judiciary has to step in. The bureaucracy shows a total indifference and insensitivity to it’s mandatory duties. This in turn affects the basic rights of the people. When the law enforcing authorities show their brutality in the process of implementation of law, the judiciary should check the excesses and also direct the authorities to effectively implement the welfare legislation. 

The Supreme Court has a role in sensitizing the Central Investigating authorities to discharge their legal obligations in the various scam cases and if various judgments ranging from the need for Uniform Civil Code, pollution control, preservation of historical monuments like Taj Mahal, cleaning and keeping the big cities more hygienic, directing removal of encroachments, interim compensation to rape victims, protecting working women from sexual harassment etc attracted praise. 

In Hussainara Khatoon v State of Bihar[1], the Supreme Court held that speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined in Article 21. In Bihar a number of undertrial prisoners were kept in various jails for several years without trial. The Court ordered that all such prisoners whose names were submitted to the Court should be released forthwith. Since speedy trial was held to be a fundamental right guaranteed by Article 21, the Supreme Court considered its constitutional duty to enforce this right of the accused persons. 

In Bandhua Mukti Morcha v Union of India[2], it has been held that the provisions conferring on the Supreme Court the power to enforce fundamental rights in the widest possible terms show the anxiety of the Constitution- makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. It is not at all obligatory that an adversary procedure must be followed in proceedings under Article 32 for the enforcement of fundamental rights. There is no such compulsion in clause (2) of Article 32 or in any part of the Constitution.

Inhuman treatment in jail- In Sunil Batra v Delhi Administration[3],it has been held that the writ of habeas corpus can be issued not only for releasing a person from illegal detention but also for protecting prisoners from inhuman and barbarous treatment. The dynamic role of judicial activism and remedies imports to the habeas corpus writ a versatile vitality and operational utility as bastion of liberty even within jails  wherever the rights of a prisoner either under the Constitution or under other laws are violated the writ power of the court can run and should run to rescue, declared Krishna Iyer, J. in Veena Sethi v State of Bihar.[4]. In this case, the Court was informed through a letter that some prisoners who were insane at the time of trial but subsequently declared sane, were not released due to inaction of State authorities and had to remain in jails from 20 to 30 years. The Court directed that they be released forthwith. Public interest litigations for the enforcement of fundamental rights are very much included in Article 32.

Protection of Ecology and Environment Pollution- In Rural Litigation and Entitlement Kendra v State of UP[5], the Court ordered closure if certain lime stone quarries on the ground that there were serious deficiencies regarding safety and hazards in them. The Court had appointed a committee for the purpose of inspecting certain lime stone-quarries. The Committee suggested the closure of certain categories of stone quarries having regard to adverse impact of mining operations therein. A large scale pollution was caused by lime stone quarries adversely affecting the safety and health of the people living in the area.

Pollution of Taj- In M.C.Mehta v Union of India[6] , the petitioner filed a PIL in the Court drawing the attention of the Court towards the degradation of the Taj Mahal due to the atmospheric pollution caused by a number of foundries, chemically hazardous industries established and functioning around the Taj Mahal, and requested the Court to issue appropriate directions to the authorities concerned to take immediate steps to stop air pollution in the Taj Trapezium (TTZ). Mr. Justice Kuldip Singh, known as a green Judge for his decisions on pollution, delivering the judgment directed 292 polluting industries locally operating in the area as the main source of pollution to change over within fixed time schedule to natural gas as industrial fuel and if they could not do so they must stop functioning beyond 31 December, 1997 and be reallocated alternative plots in the industrial estate outside TTZ. The Government would then provide alternative plots to new and old both units.


[1] AIR 1979 SC 1369.

[2] AIR 1984 SC 802

[3] AIR 1980 SC 1759

[4] AIR 1983 SC 339                                                             

[5] (1985) 2 SCC 431

[6] AIR 1997 SC 735

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