Judicial Activism vs Judicial Legislation: Defending Justice or Redefining Law?
- Faizan Hussain Wani and Tavneet kaur
- Mar 30
- 10 min read
Written by : Faizan Hussain Wani and Tavneet kaur , B.A.LL.B, Jamia Millia Islamia
INTRODUCTION
The word judicial activism was first coined by American historian and public intellectual Arthur
Schlesinger in his 1947 article, "The Supreme Court :1947". Black's law dictionary defines Judicial review as "philosophy of judicial decision-making, whereby judges allow their personal views about public policy, among other factors, to guide their decisions". The Constitution provides power of judicial review to the judiciary under articles 13, 32, 226, 141, 142 and 144, but its scope has been defined diversely by different political thinkers at contrasting times. Judicial review in simple terms refers to when the judiciary oversees the exercise of power by the other organs of the state such as legislature and executive. This has been the most influential means to keep check on the lawlessness and tyranny of the legislature and executive, sometimes, also taking the form of legitimizing of laws of legislature and executive. According to many political philosophers, judicial activism is inherent to judicial review, and it is judicial review that matures into judicial activism. Over time, the judiciary started expanding its scope by becoming more activist in nature. It addressed various issues: environmental, cultural as well as technological in nature. This activist nature of the judiciary gave rise to a new concept of PIL, or social action litigation. Its foundation was laid by Justices VR Krishna Ayer, PN Bhagavati Chinnappa Reddy and DA Desai in the 1970s. Through PIL, courts expanded their scope to reach different sections of society. In his book, "Counting the People", Anuj Bhawania explains how courts continuously expanded the scope of issues considered in PIL. Public interest litigation can be derived as an instrument that provides voice to the voiceless and disadvantaged.
PIL mechanism represents the era in India's history where judiciary sets up principles and norms
to control both legislature and executive. Though, it is also considered as a vehicle in creating and enforcing rights, it has also been criticized by many for entering the scope of legislature and
executive.
The activist approach of judiciary led to its enormous expansion in various fields. It also led to
judiciary enacting laws to fill the lacuna. This law proclamation by the judiciary is known as judicial legislation. Although the law-making powers are in the hands of legislature, judicial law making has its own essence in different scenarios and contexts. As stated by justice K. Ramaswamy, "The role of judge is not merely to interpret the law but also to lay new norms of law and mould the law to suit the changing social and economic scenario to make the ideals enshrined in the constitution meaningful and a reality”.
JUDICIAL REVIEW
The final power of the judiciary to review and determine the application of law and order can be defined as judicial review. It serves as a system of checks and balances in the division of power
among the legislative, executive, and judicial branches, ensuring their proper functioning and deciding whether their actions are consistent with the constitution. The Constitution of India
provides for provisions of judicial review under Articles 32 (Supreme Court) and 226 (High Court). In the landmark case of Indira Gandhi vs Raj Narain in 1975, the Supreme Court affirmed the validity of judicial review as a foundational aspect of the Constitution. In another case of L. Chandra Kumar V. Union of India (1997), SC declared judicial review as a part of the "basic structure" of the constitution.
It has, however, been a controversial subject since the very inception of the constitution. There existed two contrasting views with regards to the applicability of judicial review among the
drafting committee. First, that the court is not bound by what was originally intended by the founding fathers, but can interpret the constitution, giving due respect to the changing circumstances, and another that holds right the adherence to the interpretation, strictly as it is.
The constitution itself provides wide powers to the judiciary under article 13 and article 32 to review any lower court's decision or executive or legislative action. Judicial review provides legitimacy to judiciary in the eyes of people, and it is because of the so mentioned elements that judiciary is regarded as the guardian of the constitution.
JUDICIAL SUPREMACY IN INDIA
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. ... Again, there is no liberty, if the judiciary power be not separated from the legislative and executive."
These famous words of Montesquieu, as stated by him in his book "the spirit of laws”, emphasize the necessity of separation of judicial authority from legislative and executive branches of the government, a notion inherent in the doctrine of separation of powers. Although there is no explicit provision on this in the constitution, it has been adopted implicitly. Despite the same, the independent and correctional role of judiciary, in the safeguarding of different segments of society, cannot be denied. Furthermore, the concept of judiciary supremacy i.e., the idea that judiciary has the ultimate authority in declaring a law unconstitutional, reaffirms the position of Judiciary as the guardian of the constitution.
JUDICIAL ACTIVISM
As mentioned earlier, activism derives its root from judicial review, but both are quite different in approach and influence. The main function of judicial activism is to expand the scope of judicial jurisdiction to those areas of interest which need attention. Judicial activism was the need of the hour when the legislature and executive failed the aspirations of people. The Constitution has put some duties on legislature and executive towards the citizens, since they are the true representatives of the people. The DPSP's under article 38, 39 A, 39B, 41 and 45 binds these organs to provide equitable justice to every citizen. After independence, all the three organs of the state were in cooperation and limited to their own jurisdiction, adhering to the principle of separation of powers. During these years, the court remained primarily technocratic in nature,
focusing only on its primary function. As SP Sathe mentions in his book, “Judicial Activism in India", the court did not remain completely passive but instead tried to endorse a socialistic and narrow vision of rights, the influence of which could be seen in judgements such as Shankari Prashad Singh Deo Vs. State of Bihar (1951) and Sajjan Singh Vs. State of Rajasthan (1965), wherein court itself relied upon the raw facts of constitution and held that the Fundamental Rights can be amended by the legislature according to the procedure mentioned in article 368.
During the initial years before the emergency, the court adhered to the policy of legal positivism.
It, however, distanced itself from a positive approach after the famous judgement of ADM Jabalpur V. Shivakant Shukla (1976), wherein it was realized that the executive power can also be hegemonic towards the rights of people as well as the other organs. This judgement was the turning point of court's positivist approach, leading to the court following a new approach of active interpretation in years to come. In the landmark cases of Gorakhnath V. State of Punjab
(1967) and Keshvananda Bharti V. State of Kerala (1973), the court laid down the concept of "Basic Structure" and held the basic structure can't be amended by legislature.
These cases were a fine example of the judiciary becoming more activist in nature. After this, the
court advanced to define a broad vision of rights for citizens, which changed the whole landscape
of rights jurisprudence in India, acquired through the introduction of PIL in 1970s. In the case of
Mumbai Kamgar Sabha V. Abdul Thai, the court recognized the importance of PIL in serving the interests of poor and disadvantaged.
The importance of activism in changing the Human rights jurisprudence in India can be seen in
the following key cases:
1) The court expanded the scope of the right to life and personal dignity (Article 21) in case of
2) The judiciary recognized the rights of accused and convict prisoners in cases such as Sheela
The SC ordered the release of under-trial prisoners in Hussainara Khatoon V. State of Bihar
3) Right to education was recognized as a fundamental right under article 21A by SC in Unni
4) A major development in gender rights was the NALSA V. UOI (2013) judgement, in which
the court recognized the right to self-identify one's gender.
This essence of Judicial activism, as observed in the above examples, helps to insert changing needs of society and aspirations of people. According to Justice Earl Warren of the US Supreme Court, "Judicial activism is necessary to protect the fundamental rights which are at risk”. It helps to build the strong foundations of democracy with the changing societies. It also adheres to the principle of Rule of Law, which is only possible when justice is available to all sections of society. Although it seems incredibly positive and intrinsic to the judicial process, it has been criticized by many on the grounds that courts cross their jurisdiction and enter the territory of legislature and executive. That may be true in some instances, but the entire phenomenon of Judicial Activism can't be blamed for certain rare misapplications of power.
JUDICIAL LEGISLATION: IS IT JUSTIFIED?
When the Judiciary takes a step beyond its traditional role of interpreting the constitution prima facie, and assumes the role of law-making, a prerogative of the legislature, it is referred to as judicial legislation. This role assumption can be a result of several factors, from unavailability of
existing requisite laws to the legislature failing to keep pace with the changing needs and values of society. It has also been used in recent times to fill in the vacuum till the creation of any substantive law and moreover, to reach out to all sections of society. It can more precisely be
examined, by taking example of the famous case of Vishakha vs. State of Rajasthan (1997), wherein the Supreme court issued a set of guidelines concerning the protection of women at workplace, superseded in 2013 by Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. Article 133 grants appellate jurisdiction to the Supreme Court on matters pertaining to substantial questions of law. In addition, articles 32(4), 226(5), 227(6), 141(7) and 144(8) can be understood as instances where the judiciary's interpretative powers may expand into law-making. In a country as diverse as India, we need the participation of Supreme Court in an active manner. It should also be noted that judicial legislation is not to be confused with judicial overreach or adventurism, which happens when a court goes beyond its legal authority and intervenes with the "functionality" of other organs of the government, leading to conflicts between the branches. The common distinction between both terms can arise from their consistency with the principles of jurisprudence i.e., whether its existence is based on any legal position or not, under the larger purview of article 21, to safeguard the fundamental right to life and personal liberty. By virtue of the above, whenever there is legislative or executive inaction, the court holds a larger responsibility as the guardian of the constitution to safeguard the rights of citizens, ensuring proper rule of law and provide proper interpretation of statutes.
JUDICIAL LEGISLATION: THE PRESENT CONTEXT
Judicial legislation has often been a driving cause of many debates in India in recent years. With
the judiciary evolving its activist scope, there arise certain distinctions as to where the line between adventurism and so-called necessary legislation sits. Many questions with regards to the basis of this legislation arise: whether it is a violation of the doctrine of separation of powers and whether the unaccountability of Judge-made laws poses a threat to the democratic institutional system in the longer term, for example.
In the context of gender quality, the stance of Supreme Court in Supriyo vs. Union of India 2023,
highlights the tension between judicial interpretation and legislative action in India, stressing on
how judicial legislation can be constrained even though the existing laws do not cater to the changing needs of society. It also brings about a critical question as to whether stepping in by the judiciary in such cases then becomes necessary, provided its position as the "guardian” of the
constitution, or instead sets stage for Judiciary overstepping its mandate. The key issues involved
in the case were that of social customs, legal rights and institutional involvement. The Supreme Court declined to grant any legal recognition to non-heterosexual marriages under the existing law and with regards to the possibility of there being a changing interpretation of Special Marriage Act 1954, a key contention of the petitioners, held that this is a "matter of policy and legislation, not of interpretation or constitutional rights". In the broader scheme of things, a progressive understanding of equality under articles 14, 19 and 21 of the constitution needs to be revisited, highlighting that denying same-sex couples the right to marry is incompatible and discriminatory with the modern societal values.
In another context of election freebies, the Supreme Court in S. Subramaniam Balaji v. State of
Tamil Nadu (2013), acknowledged that the promise of freebies raises concerns about the misuse
of political funds for political gain, even though it does not explicitly fall under the corrupt practices defined by the RPA, 1950. The call for a regulatory framework for election freebies by the Supreme Court indicates a proactive role in judicial making even though it did not itself legislate on the matter. This again raises the question of whether courts should act in situations where the legislature is silent or inactive. The issue of freebies also brings to light the boundaries of permissible electoral conduct, the limits of election campaigns, and the role of public funds in elections. The judiciary's involvement in such matters demonstrates the fine line between enforcing existing laws (judicial activism) and creating new standards of conduct that ideally belong to the legislative domain (judicial legislation).
FINAL THOUGHTS
There is no denying that Judicial Activism is and continues to be one of the most important aspects of Indian Judiciary. It will continue to expand the scope of rights through this process, although it does not necessarily have any legislative intent. Judicial activism and legislation have
played pivotal roles in shaping India's democratic framework, particularly in filling gaps left by legislative and executive inaction. While judicial activism has expanded the rights of citizens through instruments like PIL, judicial legislation has raised concerns about the separation of powers. Striking the right balance between these two forms of judicial engagement is crucial to
ensure that the judiciary does not overstep its mandate while still protecting the rights and needs
of a rapidly evolving society. Ultimately, the courts must navigate this fine line with careful consideration of both constitutional principles and the demands of justice.
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