Under the Indian Constitution, the State is under the prime responsibility to ensure justice, liberty, equality and fraternity in the country. State is under the obligation to protect the individuals’ fundamental rights and implement the Directive Principles of State Policy. In order to restrain the State from escaping its responsibilities, the Indian Constitution has conferred inherent powers, of reviewing the State’s action, on the courts. In this context, the Indian judiciary has been considered as the guardian and protector of the Indian Constitution. Considering its constitutional duty, the Indian judiciary has played an active role, whenever required, in protecting the individuals’ fundamental rights against the State’s unjust, unreasonable and unfair actions/inactions. The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. Proponents of “judicial activism” argue that because only the courts are insulated from political pressures, courts should exercise the judicial power broadly in the constitutional context to ensure that legislation is consistent with constitutional norms. This entails, sometimes overstepping into the territories of the executive. Judicial overreach is an aggravated version of judicial activism. Development of Judicial activism in India is mainly due to the efforts of Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O. Chinnappa Reddy, and Justice D.A Desai.

The doctrine of Separation of Powers:

According to the doctrine of separation of powers, there are three main organs of the Government in State i.e. legislature, executive, and the judiciary. Legislature performs the function of legislation, the executive performs the function of execution and administration, while the judiciary performs the function of adjudication. According to the doctrine of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the Government.

The main elements of this theory are:

• There is a division of the agencies of government into three categories: the legislature, executive and the judiciary;
• There are three specific “functions” of the government. The functions must be separated if freedom is to be assured;
• The three branches of government shall be composed of quite separate and distinct groups of people, with no overlapping membership; and
• Each branch of government will act as a check on the exercise of arbitrary powers by the others.

In Re Delhi Laws Act AIR 1951 SC 332 case, the Court held that despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government.

In Indira Gandhi v Raj Narayan, 1975 SCC (2) 159, the Court held that the separation of powers is an integral part of the basic features of the Indian Constitution.

However, a more careful study of the Indian Constitution would show that the Constitution does not demarcate the functions of three organs of the government in separate watertight compartments, and to that extent, it cannot be said that the doctrine of separation of powers has been accepted in the strict sense by the framers of the Constitution.

Constitutional Powers of the Supreme Court and High Courts:

Judicial activism happens when the courts have power to review the State action. Article 13 read with Articles 32 and 226 of the Indian Constitution gives the power of judicial review to the higher judiciary to declare, any legislative, executive or administrative action, void if it is in contravention with the Constitution. The power of judicial review is a basic structure of the Indian Constitution.

Article 32 of the Indian Constitution gives right to every individual to move directly to the Supreme Court of India for the enforcement of his or her fundamental right. Article 32 confers power on the Supreme Court to issue any order or writ for the enforcement of any of the fundamental rights.

In Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 case, the Apex Court held that the power of the Supreme Court under Article 32 is an integral part of the basic structure of the Indian Constitution “because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.” It cannot be suspended even during emergency. An appropriate writ/order under Article 32 for the enforcement of Articles 17, 23 and 24 can be passed against a private individual also.

Article 226 of the Indian Constitution gives power to the High Courts to issue any appropriate order or writ for the enforcement of fundamental right and other legal rights. In this context, the jurisdiction of High Court under Article 226 seems wider than the jurisdiction of Supreme Court under Article 32. Both Articles 32 and 226 are basic structure of the Indian Constitution. Article 227 further gives power of supervisory control to the High Court over the subordinate courts, special courts and tribunals.

In Imtiyaz Ahmad v. State of Uttar Pradesh, AIR 2012 SC 642 case, the Supreme Court has recognised that access to justice is a fundamental right.

Under Article 136 the Supreme Court exercises its special power in those cases where gross injustice happens or substantial question of law is involved.

In Pritam Singh v. The State, AIR 1950 SC 169 case, the Supreme Court said that wide discretionary power under Article 136 should be exercised sparingly and in exceptional cases only.

In Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351 case, the Supreme Court said that Article 136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on the considerations of justice, call of duty and eradicating injustice.

In Vineet Narain v. Union of India, AIR 1998 SC 889 case, the Apex Court said that considering the importance of Article 32 read with Article 142, it becomes necessary for the judiciary that it should perform its constitutional obligation where there is no legislation on the certain field and implement the rule of law.

In Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 972 case, the Supreme Court acknowledged the importance of Article 142 of the Indian Constitution and said that the court has power under Article 142 to issue directions and guidelines for implementing and protecting the fundamental rights in the absence of any enactment.

In Vishaka v. State of Rajasthan, AIR 1997 SC 3011 case, the Supreme Court held that in the “absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution.”

In many cases, the Supreme Court exercised its epistolary jurisdiction and took suo motto actions on mere postal letters disclosing the human rights violations in society. Human rights violations, which published in the newspapers, were taken into judicial consideration. The court entertains the petitions which are being filed by the public spirited persons in the public interest. By doing so, the superior courts have liberated themselves from the shackles of the principle of locus standi and given the birth to the Public interest litigation in India.

In Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 case, the Supreme Court held that public interest litigation is part of the participative justice.

Judicial Activism:

The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947. The practice of Judicial Activism first originated and developed in the USA. Black’s Law Dictionary defines judicial activism as: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”.

In Scott v. Scott [1913] AC 417,477 case, the Court said that the judicial role in protecting human rights, particularly life and liberty and upholding the rule of law has to be robust and activist.

The various methods of judicial activism are as follows:

• Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
• PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is an interest of large public involved; the aggrieved party does not file the petition).
• Constitutional interpretation
• Access of international statute for ensuring constitutional rights
• Supervisory power of the higher courts on the lower courts

Judicial Review:

The system of judicial review is one of the most powerful system of our Indian Constitution. The system of judicial review act as guardians of protection of our constitution and guarantees individual fundamental rights, divides power between the union and the states and clearly defines the powers of every organ functioning in the country. Thus, legitimizing the actions of the government and the protection of the Indian constitution against any undue encroachment by the government.

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. Judicial review can be conducted on both states and central existing laws and the ordinances of both constitutional and executive amendments. Judicial review cannot be conducted on the laws present in the ninth schedule of the Indian Constitution. The interpretations of the Supreme Court is honoured by every court on the land and thus there is no appeal against the judgement of the Supreme Court.

Article 13 declares that any law which contravenes any of the provisions of the part of the fundamental rights shall be void.

Article 143 confers the power upon the Supreme Court advisory jurisdiction. The president may seek the opinion of the Supreme Court on any question of law or fact of public importance on which he thinks it expedient to obtain such an opinion.

Article 372(1) says that all the law in force in the territory of India immediately before the commencement of the constitution shall be in force therein until altered, repealed or amended by a competent legislature or an authority.

In Marbury v. Madison, 5 U.S. 137 (1803) case, the U.S Supreme Court declared that the legislative actions are also under the purview of the judicial review. The Constitution of the U.S.A. does not provide any provision for the exercise of the power of the review by the judiciary. It is argued that through the case of Marbury the Court assumed the power of judicial review in itself.

In Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789 case, the Supreme Court by a majority of decision struck down section 4 of the 42nd Amendment Act which gave power to the directive principles over article 24, 19, 31 of our constitution. As it would destroy the harmony of the Indian Constitution and stated that part III &IV of our constitution are equally important and absolute primacy of one over other is not permissible.

In Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation, AIR 2000 SC 2272 case, the Supreme Court said that broadly stated, the Courts would not interfere with the matter of administrative action or changes made therein, unless the Government’s action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide.

Public Interest Litigation:

Public Interest Litigation (PIL) means a legal action initiated in a court of law regarding a matter which relates to or is connected with the interest of the public. Public means an individual, body of individuals or the masses in general. Its purpose is to provide justice to the ordinary people. The PIL can be filed by a third party if the constitutional rights of an individual or group of individuals are violated. In such case the individual or groups of individuals is not able to move court personally for justice because of poverty, helplessness, lack of awareness or socially and economically disadvantaged conditions. The term ‘PIL’ was first used by Justice V.K. Krishna Iyer and Justice P.N. Bhagwati in a judgement. The PIL for the first time originated in USA in the 1960s.

In S. P. Gupta v. Union of India, 1981 Supp (1). SCC 87 case, the Supreme Court delivering its judgment through Justice P. N. Bhagwati evolved a new rule that any member of public having sufficient interest and with bonafide intention can maintain a petition for redress of public wrong or public injury. Such a claim may be filed by any individual, citizens, noncitizens, any groups or non-political, non- profit and voluntary organisations. However, if the petitioner is found to have personal gain from such petition, the court should not admit such Public Interest Litigations. Court has however not liberalized the locus standi for criminal cases.

Another key feature of Public Interest Litigation is its non-adversarial nature in which the Supreme Court has transformed from traditional litigation involving two opponents. There is no winning or losing in a Public Interest Litigation. This change was brought to ensure that no injustice is caused where parties are not evenly balanced in social or economic strength.

In People’s Union for Democratic Rights (PUDR) v. Union of India, AIR 1982 SC 1473 case, the Supreme Court stated that “Public Interest Litigation, as we conceive it, is essentially a cooperative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.”

Epistolary jurisdiction is unique feature of Public Interest Litigation. The courts, with the aim of enabling even the poor and disadvantaged to seek judicial redressal of their grievances, have dispensed with procedural formalities to such an extent that they have even accepted letters, post cards and telegrams, addressed to judges, the court, or the Legal Aid Committees, as writ petitions and have taken appropriate action. In Bandhua Mukti Morcha case, an organisation dedicated to the cause of release of bonded labourers in the country, wrote a letter to the Supreme Court detailing the inhuman conditions under which bonded labourers were forced to work in quarries. The Supreme Court treated this as a writ petition.

Even if nobody files a petition before the court, in case there is violation of the rights of people, the court can initiate the proceedings own its own by simply taking not of it either through newspaper or through any other source. Such practice is called suo moto. This clearly represents a drastic departure from the traditional conception of the role of a judge. However, instances of this nature are few.

In P.K. Mantiyam V. Regional Provident Fund Commission (1983 Gujarat Law Reporter), a judge of the Gujarat High Court treated a letter to the editor in a newspaper, which gave details as to how a widow had not been paid her husband’s Provident Fund even two years after his death, as writ petition. In another case a judge of the Punjab and Haryana High Court suo moto reduced the sentence awarded to several Bihari labourers for travelling in a train without tickets.

The judicial innovation to protect the interest of the underprivileged, disadvantaged and the needy through Public Interest Litigation has in later stages being abused by the litigants. The misuse of Public Interest Litigation started in 1990s when nature of filing of such petitions changed. People started using Public Interest Litigation as means to achieve their personal ends under the guise of Public Interest Litigation. Some petitions were filed with the sole objective to gain popularity in the society as Public Interest Litigation lawyer. Some were filed to fulfill the politically and financially motivated agendas. Some litigants who specialized in Public Interest Litigation were nothing but blackmailers. The very purpose and concept of Public Interest Litigation has been diluted by such frivolous petitions.

Constitutional Interpretation:

Being the apex body of the judicial system in the country, the Supreme Court of India has the final authority to interpret the Constitution of India. It has the power to interpret the law in such a manner that it does not violate the basic structure of the constitution. The Supreme Court has the right to decide the constitutionality of a law. Interpretation becomes a necessary tool whenever the language of the constitution is ambiguous or silent on any right, duty, privilege, function, or operation etc.   The court has the authority to interpret the language of the meaning of the provisions in any way they see fit, as long as such interpretation is the only way to decide what intention of framers of Constitution is transmitted, either directly or implicitly. Since 1950, the Supreme Court of India has convened in benches of five or more judges on over 1500 occasions to determine substantial questions of law concerning the interpretation of the Indian Constitution.

Six approaches to interpretation were identified by Phillip Bobbit in his book Constitutional Interpretation (1991). They are 

1. Historical (relying on the intentions of the framers and ratifiers of the Constitution);
2. Textual ( looking to the meaning of the words of the Constitution alone as they would be interpreted by the average contemporary “man on the street”);
3. Structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up);
4. Doctrinal (applying rules generated by precedent);
5. Ethical (deriving rules from those moral commitments of the American ethos that are reflected in the Constitution); and
6. Prudential (seeking the balance the costs and benefits of a particular rule)

In NCT of Delhi v. Union of India, (2018) 8 SCC 501 case, the Supreme Court held that the constitutional provisions are required to be understood and interpreted with an object-oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation.

In I. C. Golaknath v. State of Punjab, 1967 AIR 1643  case, where the questions were whether amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to amend the Fundamental Rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

In Kesavananda Bharati v. State Of Kerala, AIR 1973 SC 1461 case, the judgement defined the basic structure of the Constitution. The Supreme Court held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

In Indra Sawhney v Union of India, AIR 1993 SC 477 case, the Supreme Court examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)

Access of International Statute for Ensuring Constitutional Rights:

According to Article 51, the state has the responsibility to promote international peace and security in the nation and maintain just and honourable relations with other nations. The Article specifically mentions that the state shall respect all the provisions related to international law and shall make its best efforts to fulfil its treaty obligations and also encourage the settlement of international disputes with the help of arbitration. Article 253 of the Constitution gives exclusive power to our parliament to make laws for giving effect to any treaty, convention or agreement with any country or any decisions made at any international conference. Although the Indian judiciary does not have the power to make laws but it interprets the obligation of India in international law by adjudicating domestic cases concerning issues of international law.

International treaties have been used for the following purposes-

• To fill a gap in the existing law
• To aid interpretation of the law
• To support and defend a stand taken
• To implement international conventions when they are not inconsistent with domestic laws.
• To honour international treaty ratifications and international law.

In Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470 case, Justice Krishna Iyer stated that unless the municipal law is altered to accommodate the treaty, what is binding on the court is the former and not the latter.

In State of West Bengal v. Kesoram industries, AIR 2005 SC 1646 case, the Supreme Court reemphasized that India obeys the doctrine of dualism and stated that any treaty that has been entered into by India cannot become the law of the land unless the parliament passes a law as under section 253 of the Constitution of India.

In Vishaka v. the state of Rajasthan, (1997) 6 SCC 241 case, the Supreme Court while drafting the guidelines on sexual harassment of women at the workplace referred to many international conventions and norms which were relevant for the purpose of guaranteeing gender equality, right to work with dignity and the adherence to Article 14, 15, 19(1)(g) and 21 of the constitution.

In Chairman Railway Board vs. Chandrima Das, 28 January, 2000 case, the Supreme Court utilized the principles of the Universal declaration of human rights while widening the scope of Article 21 of the constitution by providing security to rape victims of foreign nationals.

In Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 case, the Supreme Court underlined the Vienna Convention on the law of treaties, 1963 which requires India’s internal legislation to comply with international commitments.

Supervisory Power of the Higher Courts on the Lower Courts:

Supervisory Jurisdiction is a provision that is provided by the Indian Constitution. The special feature of the Supervisory Jurisdiction is to formulate the boundaries of operation and maintain a vigil over the subordinate courts and their rulings. Along with the Judicial Review, the Supreme Court has the most power in laying down the rules and policies. Article 277 is an article that provides for the provision of supervisory jurisdiction in the constitution.

Supervisory Jurisdiction is an aspect of the High court that derives its power from the Supreme Court. The High Court is at the top of discotic courts and exercises supervisory jurisdiction over subordinate courts. Both the Supreme Court and High Courts exercise supervisory jurisdiction over their subordinate courts. The control over subordinate courts is the collective and individual responsibility of subordinate courts to superior courts in certain matters.

In Tirupati Balaji Developers (P) Ltd v. State of Bihar case, where the Supreme Court was confronted with a unique situation where the Patna High Court took strong affront to certain directions issued by the Supreme Court with respect to a proceeding pending before it.  A Division Bench of the High Court took the view that directions issued to the Registrar of the High Court to provide certain information amounted to treating the High Court as a litigant. Therefore, it directed the order passed by it to be placed before the Supreme Court. In this context, the Supreme Court examined the issues that arose and laid down not merely some ground rules in interactions with High Court, but also the Constitutional scheme with regard to the powers of the High Court and Supreme Court.  Some of the notable conclusions on the powers of the two Constitutional courts as laid down by the Supreme Court are as follows:

• The High Court is not a court “subordinate” to the Supreme Court
• The power to issue prerogative writs is wider with the High Courts than with the Supreme Court.
• Power of superintendence is only granted to High Courts and not to the Supreme Court
• What places the Supreme Court at a superior place in the hierarchy is that it is the highest court of appeal, law declared by it is binding on all Courts, it has the power to transfer cases from one High Court to another or to itself and Article 144, which requires all authorities including the High Court to act in aid of the Supreme Court
• The power of appeal implies the power to reverse, confirm, annul or modify the decree of the High Court including the direction to rehear the matter and comply with such directions as may accompany the order of remand.  This power of appeal includes the power to exercise such other incidental or ancillary powers

Significance of Judicial Activism:

Following are some of the significances of judicial activism:

• Judicial activism helps ensure that people’s rights are upheld and that everyone is treated fairly.
• Judges play an active role in interpreting laws. This helps to prevent discrimination and unfair treatment.
• Judicial activism allows the court system to address new challenges. It adapts laws to fit the current circumstances.
• Judges help maintain a balance of power among different branches of government. They prevent any one branch from becoming too powerful.
• Judicial activism serves as a check on the actions of the government. It ensures that it respects the rights of individuals and follows the law.
• Activism may lead to decisions based on personal opinions rather than the law itself. Hence, some argue that judges should stick to the original meaning of laws and the Constitution.

Advantages of Judicial Activism:

• It acts a system of checks and balances for other government branches. Thus it creates an equilibrium in different government departments.
• It allows a judge to use his personal judgement where the law fails i.e., where the law fails to meet the expectations, judicial activism comes into play.
• Judges can raise a voice against the laws which they feel are unjust.
• It places trust in the judicial system and the judges.
• It aids in speedy justice.

Disadvantages of Judicial Activism:

• Judges can override any existing law.

• State and Central machinery functioning become limited with judicial activism.
• Statutory and legislative laws are violated.
• The judicial opinions of the judges become standards for ruling other cases.
• Recurring review of judgements can result in a loss of faith in the judiciary.

Conclusion:

Judicial activism is when judges play an active role in making decisions that shape the law. Some people think it’s good as it helps protect people’s rights and bring about change. Others argue that judges should stick to interpreting laws, not making them. Judicial activism can have both positive and negative effects on society. Protecting people’s rights and at the same time respecting the role of other branches of government is necessary. It’s important to strike a balance between them. Judicial activism can be a powerful tool for change, but it’s crucial for judges to be fair and follow the Constitution. Many times, the judiciary, in the name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about.