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Apologies for not posting anything for the past few weeks. Was caught up with work. Below is a 2 part piece on Judicial Activism and the recent SC judgment. Will be regular from now on.



It is to be noted that the Supreme Courts stand on ‘judicial activism’ is not something that has come to the fore only recently, and the debate has long been on since the inception of this concept in the late 1970s. But for the overt criticism of two hyper active judges it would not have taken such a rugged path. This I say so because the judiciary itself seems critical of the stand their brother judges have taken and even more so in the manner they have presented it; i.e. in a judgment by its pronouncement as an opinion while it could still have been done in a lecture or paper.

That the constitution envisages the idea of a ‘separation of powers’[1] of the three branches of the government is a unanimous argument. The idea that then comes about is that of constitutional limitations in the exercise of these powers. Alexander Hamilton explained that constitutional limitations “can be preserved in practice in no other way than though the medium of courts of justice, whose duty it must be to declare all acts contrary to the constitutional tenor as void”.[2] He foresaw that the Courts, in exercising the power of judicial review, would be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them[3]. This idea of judicial review was incorporated in our constitution and later also held to be a part of the basic structure after the famous Indira Gandhi case[4].

With cases like Kapila Hingorani[5], Sunil Batra[6]  and the Agra Protective homes[7] case, we saw the evolution of a concept where in the Courts took an activist stand and took over the task of setting the law, something which was to be done by the legislature. This ‘law making’ process took the form of judicial activism.

Judicial activism is to be distinguished from Public Interest Litigation (PIL). Introduced by Justice Bhagwati[8] in the 1980’s, it was started as a measure to bring the common man closer to the Court. That any person, irrespective of the violation of his rights, can approach the Court under Articles 32/226. Judicial Activism can take place irrespective of PILs and vice – versa. Surprisingly most newspapers are reading the two concepts alongside each other when critiquing the latest Supreme Court judgment. One needs to understand that judicial activism begins from an interpretation of the writ of mandamus that can be issued under Article 32. A Mandamus is a command from the court, directed to any person, corporation or tribunal requiring him/ them to so something that appertains to their office and in the nature of public duty[9] i.e. ‘do what you’re suppose to do’. By a writ of Mandamus the Court can compel the executive or legislature to do something. What needs to be noticed here is that a particular inaction of a body is in consideration. This does not mean that the judiciary can use the writ to step in a take charge of the functions of that body. An example would be the Vishaka[10] case where the Court framed a law prescribing guidelines for sexual harassment at the workplace. The premise that I’d like to put forth is that judicial activism cannot be inferred from any legal document and this idea itself is opposed to the notion of constitutional limitations.

……  contd.


[1] Article 53, Constitution of India.

[2] Alexander Hamilton, The Federalist Papers, No 78.

[3] Ibid.

[4] Indira Gandhi v. Raj Narain, (1976) 2 SCR 347.

[5] Kapila Hingorani v. State of Bihar, 1979.

[6] Sunil Batra v. Delhi Admin., AIR 1978 SC 1675.


[8] Bhagwati J., SP Gupta v. Union of India, AIR 1982 SC 149.

[9] AN Saha, Mitra’s Legal and Commercial Dictionary, 5th ed. 1990, p. 469.

[10] Vishaka v. State of Rajasthan,  AIR 1997 SC 3014.