Essay
Judicial Activism v. Judicial legislation
“Every agency is under the Constitution,
even Judges are under the Constitution,
but Constitution is what Judges say...”
Abstract:
This essay examines the distinction between judicial activism and judicial legislation in India,
highlighting the judiciary's role in filling legislative gaps through key constitutional provisions. It
discusses landmark cases where the judiciary has shaped policy and created legal standards,
emphasizing the importance of judicial intervention in ensuring justice and societal adaptation.
Introduction:
The State has the prime responsibility to ensure justice, liberty, equality and fraternity in the country.
Under the Indian constitution state has the obligation to protect the fundamental rights and ensure
implementation of DPSPs. To restrict the powers and review the decision of the state, inherent
powers are conferred on the Indian judiciary. Judiciary has played an active role, sometimes
proactive also, whenever required in the light of justice, equity and good conscience to curb the
unjust, unreasonable and unfair actions of the State.
Sometimes its active role is termed as Activism and seldomly as Legislation. Judicial activism and
Judicial legislation appear to be same but are two distinct terms in meaning and possess different
areas for appearance.
Judicial activism is a philosophy of judicial decision making in which judges allow their personal views
on 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.
While Judicial Legislation, also known as Judge-Made Law, Judicial law and Bench legislation, though
not in contrast, but is a phrase used to indicate judicial decisions which construe away the meaning
of statutes, or find meanings in them the legislature never intended. It is sometimes used as
meaning, simply, the law established by judicial precedent rather than by statute. The law that
results when judges construe statutes contrary to legislative intent.
Sometimes to resolve a dispute, the court has to create a new rule or modify an old one, that is, law
creation. Judges defending themselves from accusations of judicial activism sometimes say that they
do not make law; they only apply it. It is true that in our system judges are not supposed to and
generally do not make new law with the same freedom that legislatures can and do; they are, in
Oliver Wendell Holmes's phrase, ‘confined from molar to molecular motions.’ The qualification is
important, but the fact remains that judges make, and do not just find and apply, law. Richard A.
Posner, The Federal Courts: Crisis and Reform 3 (1985).
Comparative Jurisprudence behind Judicial activism:
John Austin's legal positivism theory holds that law is solely created by the political sovereign
(legislature), with courts merely applying statutory provisions to cases. However, the Indian
Constitution doesn't distinguish between ratio decidendi (the reasoning behind a judgment) and
obiter dictum (incidental observations) when establishing the legal validity of judicial
pronouncements. As a result, even obiter dicta from Supreme Court cases have been considered
binding on subsequent cases. The Constitution's provisions on judicial functioning have been used to
justify granting obiter dicta legal binding status, enabling the Supreme Court to implement various
judicial legislations through these observations
Judicial activism under Indian Constitution:
Under the umbrella of Constitution, Judiciary has the power to review the actions and decision of the
State. The power of Judicial review is the part of basic structure of the Constitution. Combined
reading of Article 13 with Articles 226 and 32 provides the power to higher judiciary to review and to
declare, any legislative, executive or administrative action in contravention with the Constitution,
void. L. Chandra Kumar v. Union of India, (1997) 3 S.C.C. 261.
Article 142 of the Indian Constitution empowers the Supreme Court to pass decrees or make orders
necessary for achieving complete justice in any pending case or matter. The courts have broadly
interpreted the concept of complete justice, using this provision to enact various judicial legislations
and binding guidelines aimed at ensuring comprehensive justice, even when these measures extend
beyond the core ruling in the respective cases.
The Supreme Court's writ jurisdiction under Article 32 has expanded its role, allowing it to issue
judgments that effectively instruct the legislature to perform specific tasks, such as setting up
committees, formulating guidelines, or implementing schemes. While these directives may not
establish formal legal precedents, they demonstrate the judiciary's increasing influence over the
legislative process, often guiding the legislature to take concrete actions in specific cases. It serves as
orders guiding the legislature to perform specific tasks, further blurring the lines between judicial
interpretation and legislative action.
Article 141 of Constitution of India establishes the Supreme Court's decisions as binding on all Indian
courts. However, the courts have adopted a more expansive approach, treating not only the ratio
decidendi but also obiter dicta as authoritative and binding. This has led to a situation where High
Courts and even Parliament have accorded significant weight to the Supreme Court's incidental
remarks, effectively elevating them to the status of legally binding laws.
The dynamic nature of society often outpaces the legislature's ability to adapt, leaving gaps in the
law. In these situations, courts have a critical responsibility to step in, interpret, and refine the law to
meet the changing needs of society, thereby upholding the spirit of justice and the rule of law.
When courts interpret laws, they inevitably engage in a form of judicial lawmaking. However, this is a
necessary and implicit aspect of their role, as it allows them to clarify and adapt legislation to
achieve its intended purposes and align with societal values. By doing so, courts ensure that the law
remains effective and doesn't deviate from its intended goals.
So long as the courts keep themselves tethered to the ethos of the society and do not travel off its
course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them,
their role in this respect has to be welcomed. Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3
SCC 67, 12-02-1991.
The beauty of social dynamics through Judge-made law is that it aims at evolution and not revolution
and that is why it has come to be widely accepted. Justice R.C. Lahoti, ILI Foundation Day Lecture on
“Law and Social Dynamics” ILI News Letter 5-10 (2004).
Judicial activism should not be mistaken for showy or reckless decision-making. It doesn't involve
arbitrarily striking down laws simply because they contradict a judge's personal beliefs. Nor does it
entail venturing into areas beyond the judiciary's expertise. The reality is that justice is served by
human beings, not machines, and humans are imperfect. Judges, like all people, can make mistakes.
Occasional errors shouldn't lead to a blanket condemnation of judicial activism, which is essential for
upholding the law and protecting rights.
Status of Judicial legislation in India:
The Supreme Court's practice of treating obiter dicta as legally binding principles has been evident in
several cases. In IC Golaknath v. State of Punjab, the court's incidental remark that fundamental
rights could not be amended was later considered binding, despite being part of the dictum and not
the ratio. However, this was later overturned in the Keshavananda Bharati v. State of Kerala case.
Another example is Laxmikant Pandey v. India, where the court established rules to regulate foreign
adoptions through obiter dictum, filling a legislative lacuna. The development and evolution of Public
Interest Litigation (PIL) have further blurred the lines between ratio decidendi and obiter dictum,
allowing the court to engage in judicial law-making.
A notable example of the judiciary utilizing PIL to create judicial legislation through obiter dictum is
the 1997 case of Vishaka v. State of Rajasthan. Bhanwari Devi, a woman from a village in Rajasthan,
was a victim of caste-based sexual abuse and rape during her employment under the Women's
Development Project of the Rajasthan Government. Vishaka, a collective of NGOs, filed a PIL in the
Supreme Court seeking judicial intervention to address the statutory vacuum in respect of addressing
cases of sexual harassment at the workplace. The Supreme Court invoked its powers under Article 32
and formulated guidelines for protection of women from sexual harassment at the workplace. The
judgment further noted that under the provisions of Article 141, these guidelines were to be
considered the law of the land and therefore would be legally enforceable until the passing of
comprehensive legislation to deal with the issue.
In the case of Shyam Narayan Chouksey vs Union of India (2018), the Supreme Court initially issued
an interim order in 2016 requiring all Indian cinema halls to play the National Anthem before film
screenings, with attendees compelled to stand. However, in its final judgment in January 2018, the
Court revised its stance, declaring that playing the National Anthem before film screenings is no
longer mandatory, but rather optional or discretionary.
In Highway Liquor Ban Case: State of Tamil Nadu v. K. Balu & Others, which was decided on 15
December 2016, this Court indicated that no shop for the sale of liquor shall, inter alia, be situated
within a distance of 500 meters of the outer edge of a national or State highway or of a service lane
along the highway. Subsequently, on 31 March 2017, this Court relaxed the prescription in the case
of local bodies with a population 20,000 people or less where the distance was reduced from 500
meters to 220 meters from the outer edge of a National or State Highway.
Through its judgment in Arun Gopal v. Union of India (2017), the Supreme Court exercised its judicial
power to legislate, filling a perceived gap in existing laws. By fixing timings for Diwali fireworks and
prohibiting non-green fireworks, the Court effectively enacted new regulations, demonstrating its
ability to shape policy and create new legal standards through its decisions.
In the case of M.C. Mehta vs Union of India, the Supreme Court engaged in judicial legislation by
issuing directives on the registration of BS IV vehicles, effectively creating new regulations. Through
its order, the Court has mandated the Transport Departments of concerned States and Union
Territories to ensure compliance, and has also enlisted the NIC's assistance in facilitating the
registration process. By doing so, the Court has exercised its judicial power to legislate and shape
policy, filling a perceived gap in existing laws.
In recent suo moto cognizance, In re: Alleged rape and murder incident of a trainee doctor in R.G.
KAR medical college and hospital, Kolkata and related issues, SMW (Crl) No 2 of 2024, decided on 20-
08-2024, the Hon’ble Supreme Court ordered the constitution of a ten-member National Task Force,
comprising doctors all over the country to give recommendations on the modalities to be followed all
over the country to ensure safety at the workplace.
There remains a tension between judicial activism—where judges may interpret the Constitution to
expand or protect rights and maintain checks and balances—and judicial legislation, where judges
might be perceived as overstepping their role by encroaching upon legislative functions or failing to
hold other branches of government accountable to constitutional norms. Concerns about judicial
overreach versus judicial restraint can be observed from number of cases.
Aadhar case is a classic example of judicial activism, where the Justice D.Y. Chandrachud’s dissenting
opinion actively critiques and challenges the legislative process and the decision of the Speaker of
the Lok Sabha.
“To hold that the Aadhaar Act was correctly certified as a Money Bill would amount to a subversion
of the Constitution, a fraud on the Constitution, and a breach of the trust reposed by the people in
the Constitution. It would render judicial review inefficacious by accepting a proposition that permits
the certification of any bill as a Money Bill, even if it does not conform to the substantive provisions
of Article 110 of the Constitution. Such an interpretation would denude the Rajya Sabha of its
legitimate constitutional role to question and refer back bills (other than Money Bills) for
reconsideration and will destroy the delicate balance envisaged by a bicameral parliamentary
structure.”
The use of terms such as "fraud on the Constitution" reflects a proactive judicial stance that seeks to
protect the constitutional framework and balance of power between different branches of
government. The concern was expressed in some other cases also, like
"We find it difficult to agree with the majority view in Justice K.S. Puttaswamy (Aadhaar) case on the
question of classification of a bill as a Money Bill… We are of the considered view that this issue
requires a reference to a larger bench for an authoritative pronouncement."
"The expression 'Money Bill' in Article 110 has to be given a strict interpretation… A bill that is not
purely a Money Bill but contains aspects beyond the scope of Article 110 should not be certified as
such."
Justice P.N. Bhagwati has opined that
“There is no need for Judges to feel shy or apologetic about the law creating roles…. Law making is
an inherent and inevitable part of the judicial process…. There is bound to be a gap between the
generalities of law and the specifics of life…thus making and moulding the law he takes part in the
work of creation...
It highlights the dynamic nature of the judicial process, wheres judges play a crucial role in shaping
the law to fit the complexities of real-life situations, for example, Freebees distribution and liberal
interpretation of the statutes.
The Hon’ble Supreme Court ‘exercised’ its judicial activism and expressed their concern regarding the
freebies. In the landmark case of S. Subramaniam Balaji vs. State of Tamil Nadu (2013) the Supreme
Court held that the distribution of freebies did not amount to a corrupt practice per se, as no law
explicitly prohibited such promises. Nonetheless, the Court recognized the potential impact of
freebies on free and fair elections, stating:
"Though the promises in the election manifesto cannot be construed as ‘corrupt practice’ under
Section 123 of the Representation of People Act, the reality cannot be ruled out that distribution of
freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections
to a large degree."
This case directed to the Election Commission issuing guidelines to regulate election manifestos,
ensuring that political parties clarify the rationale behind their promises and their financial
implications, thereby promoting transparency and fairness in elections.
Another significant case, Election Commission of India vs. Dr. Subramaniam Swamy (1996), the
Supreme Court upheld the discretionary powers of the Election Commission to ensure free and fair
elections, including the power to curb corrupt practices such as offering unfair inducements like
freebies. The Court observed, "The Election Commission is empowered to issue directions and take
necessary actions to ensure that elections are conducted in a free and fair manner, and the same
should be in consonance with the law and Constitution." It underlined the Election Commission's
vital role in maintaining the integrity of the electoral process and its authority to take measures
against practices that compromise the fairness of elections.
Another example of judicial activism can be seen through the liberal interpretation of the Special
Marriage Act, 1954 which became a breakthrough by the Navtej Singh Johar vs. Union of India
(2018), where the Supreme Court of India decriminalized consensual homosexual sex between adults
by reading down Section 377 of the Indian Penal Code.
"The constitutional principles of dignity, equality, and freedom under Articles 14, 15, and 21 must
apply with full force to members of the LGBTQ community. Sexual orientation is an essential attribute
of privacy and must be protected under Article 21."
The Court’s affirmations established a broad constitutional foundation for the rights of LGBTQ+
individuals. It opened the door for further legal reforms, including a liberal interpretation of the
Special Marriage Act, by recognizing the right to equality and non-discrimination for all, regardless of
sexual orientation. The judgment emphasized that laws must evolve to reflect the dignity and
autonomy of individuals, making a strong case for extending marriage rights to same-sex couples.
In Deepika Singh vs. Central Administrative Tribunal (2022), the Supreme Court said, "Familial
relationships may take the form of domestic, unmarried partnerships or queer relationships. Thus, a
strict, formalistic approach to family law must yield to recognize that such manifestations are equally
deserving of protection and social benefit."
It shows case reflects a ‘progressive’ interpretation of family law that recognizes diverse family
structures, including queer relationships. This shows the activism of the Judiciary. The court
broadened the scope of Right to Privacy under Article 21 by inclusion of right to make personal
choices. "The right to privacy protects the ability of each individual to make intimate decisions
primarily affecting them, including their family life, marriage, procreation, and sexual orientation."
Extending marriage rights under the Special Marriage Act seems to be a blend of Judicial activism
and judicial legislation which would be a significant step toward a more just, equitable, and inclusive
society, fulfilling the constitutional promise of equal rights for all citizens.
This acknowledges that judges are not merely passive interpreters of the law, but active participants
in its evolution by emphasizing the importance of judicial creativity and adaptability. The reality is
that the law is not a static entity, but a living instrument that requires judges to fill in the gaps and
make nuanced decisions that reflect the changing needs of society. This perspective empowers
judges to take an active role in ensuring that justice is served, while also acknowledging the inherent
challenges and responsibilities that come with lawmaking.
It is deniable that the public's perception of the judiciary has been tarnished as people take the way
of the court despite of its lengthy and tedious procedure. The undesirable trends that have emerged
must be halted and eliminated. It cannot be overstated that a judge, like Caesar's wife, must be
above suspicion. Judges must consistently demonstrate dignity and detachment. What is needed is
strong collective leadership from the apex court, setting examples that will enhance the public's
perception of the judiciary and restore confidence in it. Reflecting on the years since our nation's
independence, it can be said that the judiciary has been a net positive, despite some flawed
judgments, occasional aberrations in the judicial process, and rare instances of judicial misconduct.
Our judiciary has upheld the rule of law, preserved constitutional values, and protected us from
despotism. And, with the blessings of Providence, it will continue to do so if we value and support it
rightly.
