VOL.

2 ISSUE 3 Journal of Legal Research and Juridical Sciences ISSN (O): 2583-0066

JUDICIAL ACTIVISM V. JUDICIAL OVERREACH: A CRITICAL ANALYSIS IN

THE INDIAN SCENARIO

Soumi Bandyopadhyay*

ABSTRACT

Lord Hewart is well known for the adage, “It is fundamentally important that justice not only
be done but also be clearly and undeniably seen to be done.” And this brought forth the idea
of judicial activism. Judicial activism has always been a bone of contention in India due to its
controversial past. The genesis of judicial activism can be tracked down to the theory of
social want. In 1893, a significant judgment was delivered by the Allahabad High Court, in
which Justice Mahmud expressed a strong dissenting opinion. This judgment is considered to
be one of the early instances of the judiciary playing an active role in shaping the legal and
political landscape of India. Nowadays, judicial activism has become an immensely popular
instrument for criticizing the role of judges. The transformation of the Indian judiciary from a
conservative one to an activist one has been a protracted and complicated process. In recent
times, there have been several judgments delivered by both the Supreme Court and High
Courts that have sparked intense debates, with some arguing that these judgments have
exceeded the traditional boundaries of the judiciary and ventured into areas that are the
domain of the legislative or executive branches of government. The main criticism behind this
is that a judge is appointed and not elected. And “There cannot be too much arrogation of
power into the hands of the people who are not elected by the people.” (Advocate Sai Deepak
J.) We can hardly forget what Justice Robert H. Jackson eloquently commented about the
Supreme Court of the U.S.A., “We are not final because we are infallible, but we are
infallible because we are final.”1 In this paper, the researcher aims to study the timeline of
judicial activism in India with its evolving dimensions and its relevance in the present
context.

Keywords: Judicial activism, judiciary, court, judges, transformation

*
LLM, PONDICHERRY UNIVERSITY.
1
Austin Granville, The The Indian Constitution- Cornerstone of the Nation, 169

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INTRODUCTION

The Indian Constitution is a document that stands out from others as it is not only the longest-
written Constitution in the world but also displays an intriguing uniqueness. The substantial
size of the Indian Constitution is attributed to the fact that its drafters endeavoured to address
the diverse range of issues that had afflicted India over the course of a decade. The
democratic system of government rests on mainly three dominant pillars which are the
legislature, executive and judiciary. The judicial system in India has a pyramidal structure
with the Supreme Court of India as the apex institution.

The judiciary is considered to be “sentinel on the qui vive” and also the highest authority in
interpreting the Indian Constitution. According to G. Austin2, “The Supreme Court has been
called upon to safeguard civil and minority rights and play the role of 'guardian of the social
revolution.” Each of the pillars is assigned its own role by the Constitution of India. The
legislative wing is responsible for making laws, while the executive branch is tasked with
enforcing them, and the judiciary has the role of interpreting the laws. The Constitution of
India establishes the fundamental principle of separation of powers and clearly delineates the
powers vested in each branch of government. When the legislative vacuum is created, the
judiciary steps in and the judges start playing a proactive role in society. In this context, the
doctrine of judicial review becomes relevant. The doctrine of judicial review refers to the
distinctive power of the Courts to decide on the constitutional validity of legislative and
executive actions. “The power of judicial review is a basic structure of the Indian
Constitution”3. It traces its origin to the American judiciary where it was first introduced in
the well-celebrated case of Marbury V. Madison in 1803. Chief Justice Marshall remarked in
Marbury V. Madison, “It is emphatically the powers and duty of the Judiciary to say what the
law is.” Article 13 of the Indian Constitution vests with the Courts the power of judicial
review. It states that the judiciary has the power to declare an act void if it contravenes Part
III of the Indian Constitution. Additionally, Articles 32, 131-136, 143 and 226 of the Indian
Constitution also lays down the principle of Judicial review. Judicial activism is an inherent
part of judicial review. Addressing a conference of Chief Ministers and Chief Justices of the
High Courts, the former Prime Minister of India, Dr. Manmohan Singh, stated that 4,

2
L. Chandra Kumar V. Union of India, (1997) 3 SCC 261 (India).
4
R Shunmugasundaram, Judicial Activism and Judicial Overreach in India,

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“Courts have played a salutary and corrective role in innumerable instances. They are highly
respected by our people for that…. There is growing dissatisfaction regarding the functioning
of the executive and the legislature and their ability to deliver effective governance to meet
the needs and challenges of our times. In this background, it is a matter of great satisfaction
that the public at large continues to hold our judiciary in high esteem. The judiciary as
custodians and watchdogs of the fundamental rights of our people has discharged its
responsibility very well indeed.”

Judicial activism can thus be defined as a kind of judicial philosophy where the Courts
proactively and positively interpret various existing provisions to consider the broader
societal implications. It involves the power of the Court to step into the shoes of the
legislature to review and potentially declare a statute ultra vires. Justice J.S. Verma in 1996
defined judicial activism as, “Judicial activism is a sharp-edged tool which has to be used as
a scalpel by a skillful surgeon to cure the malady. Not as a Rampuri knife which can
kill.”Arthur Schlesinger Jr. coined the phrase "judicial activism" in an article titled "The
Supreme Court, 1947" which was published in the Fortune magazine in January of that year.

The noble actions of J. P.N Bhagwati, J. V.R. Krishna Iyer, J. D.A. Desai and J.
ChinappaReddylaid the foundation for judicial activism, which was further reinforced by the
provisions of Article 13. 5In the annals of judicial activism in India, Public Interest Litigation
is widely regarded as a significant milestone. In 1976, the first case of public interest
litigation was initiated in Mumbai Kamgar Sabha v. M/S AbdulbhaiFaizullabhai and others.
Soon after this, the concept of PIL flourished with the active efforts of Justice Bhagwati in
India. The Court through various landmark developments provided us with the doctrine of
prospective overruling and the doctrine of basic structure in India.

Judicial activism in India can be both positive and negative. The difference between activism
and overreach is a narrow and delicate one. When judicial activism becomes judicial
adventurism and eventually takes the form of judicial overreach or judicial anarchy, it sets a
dangerous precedent for democracy. Sometimes under the veil of activism, the judges put
forward their own personal opinions which undermine the legislative wing of the
government. The Supreme Court of India in the case of The Indian Drugs & Pharmaceuticals
Limited V. Workmen (2007) 1 SCC 4086 commented that “the Supreme Court cannot

3
AtishaSisodiya, Ayush Gupta & Afshan Nazi, Recent Activist Trends in Judiciary, June 2018, 119
6
[Link] [Link]/doc/505590/

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arrogate to itself the powers of the executive and the legislature…. There is a broad
separation of powers under the Constitution of India, and the judiciary, too, must know its
limits.”

HISTORICAL DEVELOPMENT OF JUDICIAL ACTIVISM

During its early years, the Supreme Court of India was primarily focused on an interpretative
role and had a more technocratic approach. For around a decade, the judiciary remained
relatively inactive while the executive and legislative branches of the government took the
lead and interfered with the functioning of the judiciary. Starting from the mid-1970s, the
judiciary gradually evolved into an activist entity, as it became more involved in interpreting
laws and statutes. The Apex Court slowly stood up against legislative and executive inactions
and failures. Our honourable Courts have taken numerous astounding stands, be it the
preservation of human rights or prevention of sexual harassment of women at the workplace
or the protection of the environment and likewise.

CONSTITUTIONAL PROVISIONS

The two primary sources of law are legislative enactments and precedents, i.e., judge-made
laws. The Indian Constitution provides various provisions that empower the judiciary to take
a proactive stance and assert its authority. One such provision is Article 13, which prohibits
the State from enacting any law that infringes upon the fundamental rights of its citizens. The
Supreme Court opined 7 “The inclusion of Article 13(1) and 13(2) in the Constitution appears
to be a matter of abundant caution. Even in their absence, if any of the Fundamental Rights
are infringed by any legislative enactment, the Court has the authority to declare the
enactment to the extent that it transgresses the limits, invalid.”

The Supreme Court has the authority to issue any orders or writ for the enforcement of
fundamental rights under Article 32. In the case of Fertilizer Corporation Kamgar Union v.
Union of India, the Supreme Court of India ruled that the authority under Article 32 is an
essential component of the fundamental framework 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.”Article 226 of the Constitution of India grants
the High Courts of each state the power to issue writs, orders or directions to any individual,

7
A.K. Gopalan V. State of Madras, (1950)

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authority, or government within their respective jurisdiction, for the enforcement of

fundamental rights or for any other legal purpose. Article 226 of the Indian Constitution
provides the High Courts with a broader jurisdiction in issuing writs, orders, or directions as
compared to Article 32 of the Constitution. Article 227 confers upon every High Court the
authority to exercise superintendence over all other courts and tribunals under its jurisdiction.

Article 136 of the Constitution of India grants the Supreme Court the power to grant special
leave to appeal against any judgment, decree, or order passed or made by any court or
tribunal in the country, including the High Courts, subject to certain limitations and
conditions. Under Article 142, the Supreme Court is provided with discretionary powers and
it draws sweeping authority to exercise executive and legislative responsibilities in order to
do “complete justice in any cause or matter pending before it."

DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA

In A.K. Gopalan vs State of Madras8, Article 21 was given a narrow interpretation by the
Apex Court. The verdict, in this case, was pronounced by a six-member constitutional bench
of the Supreme Court, with a majority of six judges in favor and five against it. The
dissenting opinion was given by Justice Fazl Ali. Barrister M.K. Nambiar, in this case,
advocated for a conjoined reading of Articles 19 and 21, arguing that “a common thread” ran
through all the liberties enshrined in Part III. The court while rejecting all the contentions,
held that personal liberty means freedom of the physical body only and nothing else. The
court gave a restrictive meaning of Article 21 of the Constitution on the basis of “mutual
exclusivity of Fundamental rights.”

Later, in Rustom Cavasjee Cooper vs Union of India (1970), the “theory of mutual
exclusivity” got rejected which was in use for 20 years prior to this case right from the time
of A.K. Gopalan. The Court ruled that it cannot dismiss a petition that unequivocally
demonstrates that people's fundamental rights are being infringed based only on
technicalities. The Court also established the "Effect" test and abolished the "Object" test.

The case of Maneka Gandhi v. Union of India saw a seven-member bench of the Supreme
Court overturning the earlier verdict of the A.K. Gopalan case, which had been delivered by a
five-judge bench. The ruling in the Maneka Gandhi case also introduced the concept of the

8
AIR 1950

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due process clause in the Indian Constitution. Overruling the Gopalan case, it was held as
follows:9 “… The expression “personal liberty” in Article 21 is of widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of man and some of them
have been raised to the status of distinct fundamental rights and given additional protection
under Article 19….”

The Supreme Court therefore, in the Maneka Gandhi case, endorsed the due process clause
which had been previously dismissed in the Gopalan case. Additionally, it was ruled that
fundamental rights are interconnected and cannot be interpreted in isolation from each other.
They should be interpreted as a unified whole. Consequently, Article 21 must be interpreted
in conjunction with Articles 14 and 19. Additionally, it was held that “procedure established
by law” must be “fair, just and reasonable” and it should not be “fanciful, oppressive and
arbitrary.”

THE DOCTRINE OF BASIC STRUCTURE

Just two years prior to the declaration of emergency, the Indian Supreme Court ruled in the
famous Keshavananda Bharti case, that the executive branch lacked the authority to intervene
in the constitutional matters and alter their fundamental design. Although the judiciary was
unable to stop the emergency, the idea of judicial activism began to acquire greater traction.
“In a 7:6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the
Constitution is inviolable, and could not be amended by Parliament.” 10 The Court finds a
statute invalid if it damages or destroys the "basic characteristics of the Constitution." The
test is used to determine if a constitutional amendment will weaken the principles of the
Constitution itself. Since it provides significant restrictions on the ability to modify the
Constitution, the test is commonly considered as a check on the majority inclinations of the
Parliament.

9
Maneka Gandhi V. Union of India, (1978), 1 SCC 248,280
10
V-P Jagdeep Dhankhar sparks debate with remarks on Basic Structure of Constitution; what is it?
[Link] [Link]/article/explained/explained-law/vp-jagdeep-dhankar-basic-structure-the Indian-
constitution-explained-8377438/

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THE EMERGENCY PERIOD

The Emergency Period has been divided by Upendra Baxi into three phases in his book “The
Indian Supreme Court and Politics.”11 The internal emergency was declared by Indira Gandhi
in 1975 after she had been removed from her office by Justice Jagmohan Lal Sinha of the
Allahabad High Court for electoral malpractices. The 39th Constitutional Amendment Act
introduced Article 329-A to the Constitution, which prohibited the Supreme Court from
hearing cases related to elections, including those involving the President, Prime Minister,
Vice-President, and Speaker of the Lok Sabha. This amendment effectively made such
elections immune to legal scrutiny.

The constitutional validity of the 39th Constitutional (Amendment) Act, 1975 was contested
in the Supreme Court in the landmark judgment of Indira Gandhi vs Raj Narain. It was
evident that this amendment altogether eliminated the doctrine of separation of powers and
judicial review, both of which are essential components of the Constitution's fundamental
design. It shattered the idea of equality since there shouldn't be any distinctions between
those who are elected to the Parliament and those who occupy high positions. “In the 21-
month period from 1975 to 1977, the nation saw strikes from lawyers’ associations, anti-
government verdicts from various high courts, transfer of judges, demotions, demolitions and
a supersession so grave that it immortalised the judge and is still used as an example highlight
the perils of executive interference in judicial independence.”12 Progressive judicial activism
commenced with Golaknath and Kesavananda and culminated “in a wholly different genre of
social action activism”. 13

POST-EMERGENCY PERIOD

The question of basic features of the Constitution once again came up in Minerva Mills V.
Union of India, AIR 1980. The Minerva Mills case is noteworthy because it ensured that the
Supreme Court was a crucial pillar of India's constitutionalism while upholding the basic
structure theory. State of Rajasthan V. Union of India and the seminal S.R. Bommai V. Union
of India are the two other most important verdicts which highlighted the importance basic
structure of the Constitution as well as placed limitations on the president’s ability to oust

11
Nitu Mittal And Tarang Aggarwal, Judicial Activism in India, Vol. 1.1, 86, 90
12
Can judiciary stand up to all-powerful executive? How judges did it during Emergency, (Jan. 30th, 2023,
5:46pm), [Link]
it-during-emergency/1027493/
13
Ravi P. Bhatia, Evolution of Judicial Activism in India, Vol.45, 262, 264

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State governments. In the State of Rajasthan V. Union of India, the Supreme Court upheld the
Janata government's 1977-era decision to dissolve three state governments in accordance with
Article 356 of the Constitution. The Supreme Court in S.R. Bommai clarified the
circumstances under which state governments may be overthrown and established the process
by which proclamations made by the President must be approved by both houses of
Parliament within two months, failing which the dismissed governments may be restored.
With this ruling, the court has ended the practice of often dismissing state governments in
violation of Article 356.

In KihotoHollohan V. Zachillhu, the 10th schedule of the Indian Constitution was challenged.
The main concern before the Supreme Court in this issue was whether the powerful position
of the Speaker violated the theory of basic structure. The speaker’s broad discretionary
powers are outlined in paragraph 6(1) of the 10th schedule of the Indian Constitution, “If any
question arises as to whether a member of a House has become subject to disqualification
under this Schedule, the question shall be referred for the decision of the Chairman or, as the
case may be, the Speaker of such House and his decision shall be final.” The Supreme Court
held that though the Speaker acts as a tribunal under paragraph 6 and the orders which are
passed by Speaker are final yet the order passed can be subject to judicial review on four
grounds: mala fides, perversity, violation of constitutional mandate and order passed in violation
of natural justice.14

In S.P. Gupta V. Union of India, AIR 1982, it was held that “the judge has to inject flesh and
blood in the dry skeleton provided by the legislature and by a process of dynamic
interpretation, invest it with a meaning which will harmonize the law with the prevailing
concepts and values and make it an effective, instrument for delivery of justice.”

IMPLICATIONS OF JUDICIAL ACTIVISM

“According to G. Austin, the Supreme Court of India has to safeguard the rights and future of
The Indian minorities of socio-economic and religious clothing.” 15 “The Indian judiciary is
considered to be the defender of The Indian democracy and the holy grail of the land which is

14
An overview on 10th Schedule of the Constitution, available at:
[Link]
(last visited on February 1,2023)
15Adding the Dimension of Judicial Activism to the role of The Indian Judiciary, available at:
[Link] Indian-
judiciary/#:~:text=Judicial%20activism%20has%20expanded%20the,enforceable%20by%20law%20%E2%80
%93%20whilst%20being (last visited on February 1,2023)

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the Indian Constitution.”16 Judicial activism has significantly expanded the role of the Indian
judiciary by empowering it to use its authority to promote social and economic equality
through the enforcement of the directive principles of state policy outlined in Part IV of the
Indian Constitution.17

CONCEPT OF PUBLIC INTEREST LITIGATION

Justice B.N. Kirpal, the former Chief Justice of India, once famously said, “Ordinary people
have a feeling that PIL is the pill for all that is wrong with our country.” 18

Public interest litigation or social interest litigation is the primary vehicle through which
judicial activism has flourished in India, “especially in the arena of constitutional and legal
treatment” for “unrepresentative and under-represented”.19 All human beings are conferred
some basic fundamental rights by virtue of different international conventions.

PIL was essentially started to safeguard the fundamental rights of the oppressed sections of
society who are in precarious economic or social positions. Public Interest Litigation is
dissimilar from regular litigation since it is filed by one private individual against another for
the enforcement of their personal rights. PIL is based on the liberalized locus standi rule
where any public-spirited individual can approach the Court on behalf of the downtrodden
sections of society in matters of public interest. “Degraded bonded laborers, humiliated
inmates of protective homes, women prisoners, the untouchables, children of prostitutes,
victims of custodial violence and rape and many other oppressed and victimized groups are
attracting remedial attention of the courts.”20 The concept of public interest litigation in India
was introduced by Justice P.N. Bhagwati. The Apex Court held in S.P. Gupta v. Union of
India and others, that any public-spirited individual can approach the court for enforcing the
Constitutional or legal rights of those, who cannot approach the court because of economic
disabilities.

One of the earliest public interest litigations was brought by G. Vasantha Pai against S.
Ramachandra Iyer, the then-sitting Chief Justice of the Madras High Court after it was found
16
ibid
17
ibid
18
PIL Pil for all Ills, available at: [Link] (last
visited on February 3,2023)
19
5 Landmark Cases of Public Interest Litigation,available
at:[Link] (last
visited on 1st February,2023) (last visited on February 1,2023)
20
Rakesh Kumar, “Public Interest Litigation”,

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that the judge falsified the date of birth to avoid his retirement age. The judge resigned at the
request of the then Chief Justice of India as it could have tainted the image of the judiciary.

A Public Interest Litigation (PIL) was initiated in 1979 against the cruel and degrading
treatment of undertrial prisoners. Advocate Pushpa Kapila Hingorani filed a PIL in
Hussainara Khatoon v. State of Bihar21 on the basis of a news article that was featured in The
Indian Express and highlighted the plight of thousands of under-trial convicts who were
being held in various jails around Bihar. The judgment highlighted the “importance of timely
justice as a part of a fair trial.”22 More than 40,000 convicts awaiting trial were released on
the basis of these proceedings. The State of Bihar was instructed to categorise inmates into
two groups according to the severity of the offences and provide an updated chart clearly
displaying a year by year of prisoners. However, the State failed to produce such a chart.

In Bandhua Mukti Morcha V. Union of India &Ors 23., a public interest litigation case (PIL)
was filed via Article 32 of the Indian Constitution before the Supreme Court of India and
petitioned the Court to direct the State of Uttar Pradesh (UP) to take urgent steps to put an
end to child labour. The Apex Court in order to curb the menace of child labour, directed the
State government of Uttar Pradesh to eliminate child labour in the carpet industry and issue
welfare directives banning child work under the age of 14 and providing access to
educational and medical services.

The Supreme Court's ruling in Vishakha v. State of Rajasthan24 was a game-changing one
since it established comprehensive rules to address the problem of sexual harassment of
women at work. A three-judge panel, consisting of Chief Justice Verma, Justice Sujata V.
Manohar, and Justice B.N. Kripal, issued the decision. Sexual Harassment is defined as an
uninvited/unwelcome sexual favour or sexual gesture from one gender towards the other
gender. 25 The PIL was filed by Bhanwari Devi who was a social activist in the Rajasthan’s
village. She worked in a rural area at a program that intended to stop child marriages. She
worked diligently to stop the marriage of the Ramkaran Gujjars' daughter while she was less

21
1979 AIR 1369, 1979 SCR (3) 532
22
Hussainara Khatoon V. Home Secretary, State of Bihar: The Right to Speedy Justice, available at:
[Link]
[Link] (last visited on February 2,2023)
23
AIR 1997 10 SCC 549
24
AIR 1997 SC 3011
25
Case Analysis- Vishaka and others V/s State of Rajasthan, available at:
[Link]
[Link] (last visited on February 2,2023)

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than a year old. Despite the fruitless attempts to prevent the marriage, it took place; and she
was subjected to social boycott and stigma as a result of her actions. In September 1992, she
was mercilessly gang raped by Ramkaran Gujjar and his five friends. The court observed that
every profession, trade, or occupation must offer a safe working environment to its workers
in accordance with Articles 14[2], 19[3](1)(g), and 21[4] of the Indian Constitution since it
interfered with people's ability to exercise their right to life and their right to a dignified
existence. The provision of a safe working environment in the workplace was a fundamental
prerequisite.26 Chief Justice Verma penned down in the Vishakha 27 judgment: “With the
increasing awareness and emphasis on gender justice, there is an increase in the effort to
guard such violations; and the resentment towards incidents of sexual harassment is also
increasing.” “The judgement brought to fore the evil of sexual harassment even though it
was brushed under the carpet for a very long time till then.”

In the landmark judgment of D.K. Basu V. State of West Bengal28, this court laid down certain
basic "requirements" to be followed in all cases of arrest or detention till legal provisions are
made on that behalf as a measure to prevent custodial violence. 29

Public interest litigation works as an effective tool for social change however there are
several issues with it. In the opinion of former Attorney General, Soli Sorabji 30, three basic
rules should be followed in order to regulate the filing of Public Interest Litigations. They
are:

1. Not hearing doubtful Public Interest Litigations and imposing high costs on them so it
acts as a deterrent for them in the future.

2. When crucial projects or socioeconomic rules are contested after egregious delays, su
ch petitions should be rejected outright on the basis of latches.

3. If the PIL is finally dismissed, the petitioners should be in precise terms, such as
offering indemnification or giving the court a sufficient commitment to making good
the damage.

26
supra note at 24
27
Vishakha v. State of Rajasthan, AIR 1997 SC 3011
28
AIR 1997 SC 610
29
Shri Dilip K. [Link] K. ... vs State Of West Bengal &Ors, AIR 1997 SC 610.
30
supra note at 19

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ACTIVISM AND HUMAN RIGHTS

Human Rights are the basic rights that belong to every person in the world. Human Rights are
rights inherent to all human beings. Rights are not nearly speaking about biological needs but
also those conditions of life which allow us to freely develop and use our human qualities of
intelligence and conscience and to satisfy our spiritual needs. They represent fundamental
principles of our society including justice, respect, equality, and decency. They are a crucial
safeguard for all of us, but especially for those who could experience abuse, neglect, or
solitude.

It is the constitutional mandate that the judiciary is going to protect the delicate human rights
of the people of the country. The Supreme Court and High Courts are empowered under
Articles 32 and 226 and also provide mechanisms for remedy. For the preservation of his or
her fundamental rights, the redressal of grievances and the enjoyment of their fundamental
rights, an aggrieved person may spontaneously approach the Supreme Court or High Court of
the relevant state. The court has the authority to issue the proper orders, directives, and writs
of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

The case of ADM Jabalpur v. Shivakant Shukla31 is regrettable in the annals of The Indian
legal precedent. In this judgment, four out of the five judges ruled that all basic rights would
be suspended during an emergency. The rule that the state cannot deny anybody their right to
life and personal liberty without following due process of law was established by Justice H.R.
Khanna's dissenting judgement.

In Maneka Gandhi v. Union of India32, the Supreme Court construed the right to life in order
to broaden its application and infer unlisted rights such as the "right to live with human
dignity." The Supreme Court developed the "emanation" theory “to make the existence of the
fundamental right meaningful and active” 33. In subsequent judgements, the courts have ruled
that the right to life also includes the right to live with dignity, as in People's Union for Civil
Liberties and another v. State of Maharashtra34and others and Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi35. As a result, even though some rights are not

31
AIR 1976 SC 1207
32
AIR 1978 SC 597; (1978) 1 SCC 248
33
Amamrtish Kaur, “PROTECTION OF HUMAN RIGHTS IN INDIA: A REVIEW”, 2 Jamia Law Journal 25
34
AIR 1997 SC 568, (1997) 1 SCC 301
35
1981 AIR 746, 1981 SCR (2) 516

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expressly stated in Part III of the Constitution, they have still been acknowledged via judicial
interpretation. 36

In People’s Union for Democratic Rights & Others v. Union of India & Others,37 it was held
that the reach of Article 23 is extensive and unrestricted; it targets "human trafficking" and
"beggar and other types of forced labour" anywhere they occur. Since a person in need has no
other option but to do labour or supply service even if the compensation is less than the
minimum wage, the term "force" must thus be interpreted to encompass not just physical or
legal force but also force deriving from economic conditions.

In Sheela Barse v. State of Maharashtra38, the court held that impoverished people who are
being detained should be given legal help as it is required under Articles 14, 19, and 39A of
the Indian Constitution. The Court further instructed the social workers to report any
mistreatment of female detainees in the jails.

The Constitution Bench of the Supreme Court in Shayara Bano vs Union Of India And
Ors held by a 3:2 majority, the instant Triple Talaq, also known as Talaq -e-biddat, is
illegal under Article 14 read with Article 13(1) of the Indian Constitution.

WOMEN EMPOWERMENT AND SUPREME COURT

Chief Justice N.V. Ramana remarked, “One of the marks of a progressive nation is the
condition of its female population. Women too are stakeholders in this system and must
become a substantial part of it.”39

“The Constitution of India has taken a long leap in the direction of eradicating the lingering
effects of such adverse forces so far as women are concerned.” 40Affirmative action for
women is specifically included in our constitution. It establishes the groundwork for ensuring
equal opportunity for women in all spheres of life, including education, employment, and
participation. It forbids all forms of discrimination against women.
The judiciary, in addition to the legislature, also plays a crucial and significant role in the em

36
supra note at 33
37
A.I.R.1982 3 SCC 235
38
A.I.R. 1983 SC 378
39
Editorial, “5 times the Supreme Court upheld the rights of women in 2022”, The The Indian Express,
December 21,2022
40
Judicial Activism and Women Empowerment in India, available at:
[Link]
(last visited on 3rd February,2023)

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powerment of women. The judiciary can empower women by the broad interpretation of the
provisions of the Constitution. Some of the significant cases are listed below.

Air India vs. NargeshMeerza, AIR 1981 SC 1829: The Supreme Court judgment in the case
of Air India v. NergeshMeerza is one of the pioneering instances in The Indian equality law
with regard to sex discrimination. The court held that the retirement and pregnancy
provisions are illegal and ordered them to be removed. Regulation 47 also met a similar fate
since it was discovered that there were too many powers delegated to it without any
appropriate rules to govern them.

Laxmi Vs Union of India2014 SCC 4 427: In this case, Laxmi, an acid attack survivor, filed
a PIL against the Union of India, which resulted in the publication of recommendations for
the benefit of acid attack survivors. The Supreme Court's ruling placed limitations on the
selling of acid and awarded the victim compensation. In the past, acid assaults fell under the
general category of crimes that resulted in "grievous harm." Following the Justice J.S. Verma
Commission's recommendations the Criminal Amendment Act of 2013 passed a number of
new laws, including one that classified acid violence as a separate offence punishable by a
life sentence in prison and a fine. There was no restriction on the selling of acid for use on
countertops prior to the Supreme Court's ruling. 41

Secretary, Ministry of Defence V. Babita Puniya, (2020) 7 SCC 469: In this landmark
judgment, the Apex Court ruled that all the serving female officers of short service
commissions be taken into account by the army for the permanent commissions. This was
followed by another judgment of Nisha Priya Bhatia V. Union of India, where the Supreme
Court was disturbed about the legality of the conditions that the army had set in place to
determine whether or not to award women who had served on short service commissions a
permanent commission.

Rekha Sengar vs State of Madhya Pradesh (2021) 3 SCC 729: The Supreme Court in the
aforementioned case observed that, if the scourge of female foeticide and injustice towards
girl children is to be eradicated from our society, then a strict approach must be adopted.
Prenatal sex determination is a grave offence with serious consequences for the society as a
whole. A bench of Justices upheld the Madhya Pradesh High Court's decision to deny an

41
Laxmi vs. Union of India &ors,, available at:[Link]
indiaampors/#:~:text=This%20case%20was%20Laxmi%20vs,provide%20compensation%20to%20the%20victi
m (last visited on: February 2,2023)

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accused person's request for anticipatory bail and stated that the Pre Conception and Pre
Natal-Diagnostic Techniques (Regulation and Prevention of Misuse) Act was necessary due
to India's long-standing preference for having male children, which is rooted in a patriarchal
web. The Bench observed, "The unrelenting continuation of this immoral practice, the
globally shared understanding that it constitutes a form of violence against women, and its
potential to damage the very fabric of gender equality and dignity that forms the bedrock of
our Constitution are all factors that categorically establish prenatal sex-determination as a
grave offence with serious consequences for the society as a whole” 42

Vineeta Sharma V. Rakesh Sharma (2020) 9 SCC 1: The Supreme Court held that daughters
had equal coparcenary rights in Hindu Undivided Family (HUF) property. The Court ruled
that the privilege is granted by birth. As a result, when a daughter is born, she is also entitled
to the right. The court further explained that while the right to coparcenary is acquired at
birth, the father of the coparcener need not still be alive as of September 9, 2005.

The Indian Young Lawyers Association vs The State Of Kerala (2019) 11 SCC 1: The
Sabarimala Temple Entry issue was decided by a five-judge Supreme Court bench
comprising Chief Justice Misra, Justice Nariman, Justice Chandrachud, and Justice Malhotra.
A 4:1 majority ruled that it is unlawful for the temple to exclude women. It was decided that
the practise infringed on the female worshippers' basic right to freedom of religion (Article
25(1)). The Kerala Hindu Places of Public Worship Rules, 1965, which permitted the
exclusion of women based on tradition, were declared unlawful by the Bench. Justice Indu
Malhotra offered the case's dissenting opinion.

PROTECTION OF ENVIRONMENT

In India, environmental pollution has increasingly become the focus. As a result, the
architects of the Constitution had already incorporated Articles 47, 48, and 48A. Accordingly,
the State has obligations to safeguard the environment and preserve the nation's natural
resources. Since India was a signatory to the Stockholm Declaration of 1972, the Parliament
inserted Article 51(1)(g) into the constitution. According to this article, people have a duty to
protect and enhance the natural environment, which includes woods, lakes, rivers, and
animals, as well as to show compassion for all living things. In addition, the Parliament

42
Supreme Court Judgments On Women Empowerment and Gender Equality 2021, available at:
[Link]
2021-188536 (last visited on: February 2,2023)

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approved a number of anti-pollution measures, including the Environmental (Protection) Act

1986, the Water (Prevention and Control of Pollution) Act 1974, and the Air (Prevention of
Pollution) Act 1990.43 The Supreme Court of India in the landmark judgment of Subhash
Kumar Vs. the State of Bihar interpreted Article 21 of the Indian Constitution to hold that the
right to life includes the right to a healthy environment, which includes the right to pollution-
free water and air for the full enjoyment of life. In this ruling, the Supreme Court declared
that everyone has a fundamental right to a healthy environment.

“The Taj Mahal, the eternal symbol of love in India, has withstood the brutal force of the
elements for centuries”. In M.C. Mehta vs Union of India &Ors (Taj Mahal Case)44, the
Supreme Court banned the use of coal and coke and ordered the units near the Taj to switch
to compressed natural gas after it was noted in a PIL that the Taj Mahal, one of the finest
ivory-white marble mausoleums, was facing a serious threat from pollution caused by the
Mathura Refinery, iron foundries, glass, and other chemical industries (CNG).

In another case, the Supreme Court intervened and ordered the Agra Development Authority
to immediately halt any commercial activity there. The Agra Development Authority was
instructed by a panel of Justices Sanjay Kishan Kaul and AS Oka to ensure that its ruling was
followed.

In the landmark judgment of Vellore Citizens Welfare Forum v. Union of India, the Apex
court ordered all tanneries to deposit a sum of Rs. 10,000 as a fine in the collector’s office
after ruling in favour of the petitioners. The State of Tamil Nadu was further ordered to give
Mr. M. C. Mehta a reward of Rs. 50,000 in recognition of his efforts to conserve the
environment.

In this instance, the court also made a point of highlighting the establishment of Green Bench
es in India, which expressly deal with issues connected to environmental protection and
also for the prompt resolution of environmental problems.

43
Role of The Indian judiciary in protection of the environment, available at:
[Link] Indian-judiciary-in-protection-of-the-
environment/#:~:text=The%20Supreme%20Court%20has%20recognized,from%20their%20factories%20in%20
M.C (last visited on: February 2,2023)
44
AIR 1997 2 SCC 353

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In the Ganga River Pollution Case45, the Supreme Court issued an order to stop the Ganga's
pollution. More than 250 municipalities and localities were urged to build sewage treatment
plants in addition to hundreds of companies. Additionally, more than 600 tanneries that were
located in a crowded residential neighbourhood of Kolkata were moved.

In the Vehicular Pollution Case46, the Supreme Court established a group headed by a former
SC judge in 1992 to make recommendations for policies to reduce vehicle pollution on a
national scale. To reduce pollution, it mandated that lead-free gasoline be made available
nationwide and that natural gas and alternative fuels be used.

In order to effectively defend human rights, the Indian judiciary even relaxed the locus standi
norm, which paved the door for the notion of public interest litigation to emerge. Various
instances of human rights violations have been brought before the courts through public
interest litigation. The rights of women, workers, youngsters, prisoners, and other groups
were upheld by the courts. In order for each person to live in dignity, the court is therefore
acting as the people's messiah of their human rights.

In several landmark judgements, the Supreme Court espoused the cause of the protection of
the environment at large. The Court through its judgement evolved various principles like the
Precautionary Principle and Polluter Pays Principle, thereby, making them an integral part of
the environmental jurisprudence of our country. The Supreme Court has assumed a proactive
role in protecting fundamental environmental interests. “The judicial activism exercised by
the Supreme Court for protection of the environment, in this case, demonstrates the
increasing significance of environmental litigation in India.” 47

RECENT CASES ON JUDICIAL ACTIVISM

The Indian judiciary has taken a very assertive role in providing justice to the general
populace, ensuring that India develops into a thriving democratic nation. This includes
creating the "basic structure" doctrine, bringing constitutional amendments under the scrutiny
of the courts, and expanding the scope of the right to life and liberty by reading into it the

45
M.C. Mehta V. Union of India, AIR 1988 SC 1037
46
M.C Mehta VS Union of India, AIR 1991 SCR (1) 866
47
M.C. Mehta (Taj Trapezium Matter) v. Union of India, (1997) 2 SCC 353 (Before the Supreme Court of
India, Writ Petition (Civil) No. 13381 of 1984, Decided On: 30.12.1996), available at:
[Link]
before-the-supreme-court-of-india-writ-petition-civil-no-13381-of-1984-decided-on-30-12-1996/ (last visited on
February 3,2023)

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non-justiciable directive principles of state policy such as the duty to promote education and
the duty to preserve the environment.48The judiciary has acquired considerable traction in
recent years.

SUO MOTU CASES

On April 2021, in Re: Distribution of Essential Supplies and Services During Pandemic 49, the
apex Court comprising of three-judge bench of Dr. DY Chandrachud, L. Nageswara Rao, and
S. Ravindra Bhat, JJ. took note of the "grim" situation of the nation affected by the second
wave of the COVID-19 pandemic and the lack of COVID-19 essentials was brought to the
attention of the Court. The Supreme Court clarified that in a time of national crisis, it cannot
stand as a mute spectator. The Court highlighted, among other reasons, that it is arbitrary and
unreasonable for people between the ages of 18 and 44 to have to pay for vaccination when it
is provided by the State/UT Governments and private institutions.

In Delay in Release of Convicts After Grant of Bail, the Supreme Court took up the suo-motu
case on the subject of an inmate’s delayed release after being granted bail. A news report
stating that the prisoners held in the Agra Central Jail had not been freed even after three days
following the ruling granting them bail served as the impetus for the cognisance.

RECOGNISING NEW FUNDAMENTAL RIGHTS:

In BudhadevKarmaskar v. State of West Bengal, the bench of Justices comprising L.

Nageswara Rao, B.R. Gavai and A.S. Bopanna observed that "Notwithstanding the
profession, every individual in this country has a right to a dignified life under Article 21"
The Supreme Court ruled in this decision that consenting sex workers were entitled to dignity
and equal protection under the law and recognised sex work as a "profession." Additionally,
the Court used its inherent authority granted by Article 142 of the Constitution to give a few
directives for the rehabilitation of sex workers and ordered UIDAI to provide Adhaar Cards
to Sex Workers based on a proforma certificate.

48
Atisha Sisodiya, Ayush Gupta and Afshan Nazir, “RECENT ACTIVIST TRENDS IN THE INDIAN
JUDICIARY: JUDICIAL RESTRAINT AND JUDICIAL OVERREACH”,4 JOURNAL OF LEGAL STUDIES
AND RESEARCH (2018)
49
AIR 2021 SC 2904

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In Anuradha Bhasin V. Union of India, the Supreme Court declared that the freedom of
speech and expression on the Internet, as well as the freedom to engage in any profession,
employment, trade, or business, is a constitutionally protected right. The Court further stated
that continually prohibiting access to the Internet through orders issued in accordance with
Section 144 of the Criminal Procedure Code amounted to an abuse of authority and was not
permitted. The decision was made in a case contesting Kashmir’s internet blackout.

UPHOLDING THE RIGHTS OF WOMEN

In AishatSifha v. State of Karnataka (2022) (popularly known as the Hijab Ban case), the
verdict in the case was delivered by a bench consisting of Justices Hemant Gupta and
Sudhanshu Dhulia, with each justice giving a different opinion. Justice Sudhanshu Dhulia
observed, “The High Court took a wrong path. It is ultimately a matter of choice and Article
19(1)(a) and 25(1). It is a matter of choice, nothing more and nothing less,” The decision of
whether to refer the case to a 3-judge bench or a 9-judge bench now rests with the CJI.50

In the State of Jharkhand v. Shailendra Kumar Rai, it was held that “The two-finger test has
no scientific basis. It instead re-victimises and re-traumatises women.” The Court noted that
“The two-finger test must not be conducted... The test is based on an incorrect assumption
that a sexually active woman cannot be raped. Nothing can be further from the truth, it is
patriarchal and sexist to suggest that a woman cannot be believed when she states that she
was raped, merely for the reason that she is sexually active.” 51

JUDICIAL OVERREACH IN INDIA

There aren't enough kind words to describe the Indian judiciary's efforts to save the country
from the worst emergency situation. Through a captive parliament, the Indira Gandhi
administration attempted to deface and corrupt the Constitution both before and during the
Emergency. People consider a strong, independent court that can challenge an authoritarian
administration to be necessary in such situations. 52

The Indian court is frequently accused of judicial overreach and there are some instances
which point out that it has gotten extremely assertive. Even inside the court system,

50
Top 10 Landmark Supreme Court Judgments of 2022, available at: [Link]
news/landmark-supreme-court-judgments-2022 (last visited on February 4,2023)
51
ibid
52
supra note at 50

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politicians and other proponents of the positivist conception of law frequently make this
charge. Prior until today, supporters of Chief Justice Hidyatullah and H. M. Seervai have
continued to criticise the judiciary's active attitude by claiming that it poses a threat to the
separation of powers, which is the foundation of the constitution.

In his book, Nature of the Judicial Process, Justice Cardozo of the U.S. Supreme Court
wrote, “The Judge is not a knight errant roaming at will in pursuit of his own ideal of beauty
or of goodness”. 53 In recent years, the Supreme Court has tended to favour the sociological
school of law over the positivist school of thought. In other words, it is troubling that the
court is using judicial activism more often than judicial restraint.

Some of the glaring instances of judicial overreach have come into the limelight and they are
as follows:

 The judgment of Shyam Narayan Chouksey V. Union of India(2018) that the national
anthem should be played in movie halls.
 The censoring of the movie Jolly LLB II is considered to be a classical example of
judicial overreach. The lawsuit, which was submitted as a writ petition, claimed that
the movie mocked the court system and was, therefore, a provocation and an act of
contempt. A three-person committee was established by the Bombay High Court to
see the film and provide a report on it. Since the Board of Film Certification already
exists and has the authority to censor, this was seen as redundant. Four sequences
were cut by the filmmakers based on the committee's findings. It was deemed to be
against Article 19(2) because it placed limitations on the freedom of speech and
expression.
 In Rajiv Sharma V. The State of West Bengal (2019), Supreme Court required
Priyanka Sharma, a BJP Yuva Morcha Representative to apologise for posting such a
meme in its bail ruling. The court ruled that when speech violates the rights of others,
it is no longer protected by Article 19(1)(a) of the Indian Constitution.
 In the State of Tamil Nadu V. K. Balu& others, a public interest litigation was filed
before the Supreme Court. The top court prohibited the sale of alcohol at retail
establishments, restaurants, and bars within 500 metres of any national or state
highway in response to a PIL about traffic safety. The state governments lost money

53
The need for Judicial Restraint, available at: [Link]
restraint/[Link] (last visited on 5th February,2023)

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as a result of this judgement, and jobs were also lost. Because it included an
administrative issue that required executive understanding, the case was viewed as an
overreach.

TRENDS OF JUDICIAL RESTRAINT

The concept of Judicial activism is thus the polar opposite of Judicial restraint. The principle
of judicial restraint can be seen in various cases, such as the State of Rajasthan v Union of
India, in which the court declined to hear a petition because it pertained to a political matter
outside its jurisdiction. Similarly, in S.R. Bommai v Union of India, the judges acknowledged
that there are instances where political considerations take precedence and judicial review is
not feasible.

CONCLUSION

Throughout the history of the nation, it is evident that judicial activism has been a significant
force in addressing social issues such as prison reform, environmental concerns, and
individual liberties. Although the judiciary has an important role to play in addressing social
issues, it is crucial that it recognizes its own limitations. Like other branches of government,
the judiciary should not overstep its bounds by attempting to take on the responsibilities of
the legislative and executive branches. While the judiciary can certainly intervene in extreme
cases, such actions may upset the delicate balance of power outlined in the Indian
Constitution. Rather than interfering in the domains of other branches, the judiciary can
instead encourage the proper functioning of these branches.

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BIBLIOGRAPHY

Books Referred:

Judicial Activism in Post-Emergency Era by Dr. Swapna Deka Mandrinath

The Indian Judiciary and PoliticsThe Changing Landscape by Manohar Publishers &
Distributors

Judicial Activism & Environmental Pollution in India by Lap Lambert Academic

Publishing GmbH KG publishing company.

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