Judicial Activism

📌 Judicial Activism – Basic Idea

Where it began?
- It started in the USA.
- The word “Judicial Activism” was first used in 1947 by Arthur Schlesinger Jr., a historian.
When it came to India?
- Around 1970s.
- Judges like Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy, and Justice D.A. Desai were important in starting this idea in India.

📌 What is Judicial Activism?

Meaning in Simple Words:

Judicial activism means that the judges (courts) take an active role in making sure:
- People’s rights are protected.
- Justice is done properly.
- The government (both legislative and executive) is doing its constitutional duty.
It is also called "judicial dynamism" (active role).
It is opposite of “judicial restraint”, where courts stay quiet or passive, even if they notice something wrong.

✅ Example of Judicial Activism: Vishaka v. State of Rajasthan (1997)

🟢 What happened?

A woman named Bhanwari Devi, a social worker in Rajasthan, was gang-raped while trying to stop child marriage.
At that time, there were no proper laws in India to protect women from sexual harassment at the workplace.

🟢 What did the Court do?

The Supreme Court said: Even if there is no law, we cannot ignore women’s safety.
The Court used the Constitution and international treaties (like the UN’s rules on women’s rights) to create rules.

🟢 What was the result?

The Court created guidelines to protect women at work. These are called the Vishaka Guidelines.
Later, in 2013, the government made a law based on these guidelines:
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

✅ Why is this Judicial Activism?

Because the judges stepped in and made rules even though no law existed.
They didn’t wait for Parliament to act—they acted for the public good and protected rights.

📌 Easy Definitions of Judicial Activism

Let’s simplify the technical definitions one by one:

First definition:

Judges don’t always follow old rules and traditions. Instead, they make new decisions to bring social changes. Sometimes, they step into areas handled by the government or parliament.
Second definition:

Judges try to protect or give more rights to people. They do this even if it means not following old judgments or going beyond what the constitution or law originally meant.
Third definition:

Judicial activism is like law-making by judges. Judges actively interpret laws to make them more useful and helpful to society.
- It is not like “judicial pessimism”, where judges just read the law as it is without trying to make it more useful.
Fourth definition:

Judges may use their own views about what is good or bad for the public while making decisions.
Fifth definition:

Judges create new rules or ideas to do justice, help people, and allow the public (especially poor or helpless people) to bring their issues to court.

📌 Relation with PIL (Public Interest Litigation)

Judicial activism is closely linked with PIL.
PIL = A case filed not for personal benefit but for public good.
Courts began PILs because of judicial activism.
So, PIL is one of the best examples of judicial activism in India.

✅ Summary in One Line:

Judicial Activism means when judges take a proactive and helpful role in giving justice, protecting rights, and making sure the government is doing its job – even if that means creating new ideas, policies, or decisions.

✅ Judicial Review vs Judicial Activism — Easy Explanation

🔹 Judicial Review – What is it?

Judicial Review means the power of the court to:
- Check if a law or government action follows the Constitution.
- If it violates the Constitution, the court can declare it invalid (not allowed).

✅ Example:
If Parliament passes a law that goes against Fundamental Rights, the court can strike it down. This is judicial review.

🔹 Judicial Activism – What is it?

Judicial Activism means that judges go beyond just checking laws.
They actively take decisions, give new rules, or suggest policies, especially when:
- There is no law.
- Government is failing to act.
- Public rights are being harmed.

✅ Example:
In the Vishaka case, the Supreme Court made rules for sexual harassment at workplaces even though no law existed at that time.

⚖️ Difference Between the Two (Point-by-Point)

No.	Judicial Review	Judicial Activism
1	It is a basic power of courts to check if laws follow the Constitution.	It is a more active role where judges also create policies or rules.
2	It mainly deals with validity of laws.	It also includes suggesting changes, making new interpretations, or even creating rules.
3	It is about upholding the Constitution.	It is about protecting rights and ensuring justice, especially when the other branches fail.
4	Judicial activism is a part of judicial review.	But it goes beyond just reviewing—it often includes making positive changes.
5	Courts may remain neutral and passive.	Courts become active and creative in solving public problems.

📝 Additional Points from Your Text – Explained Simply:

In the USA, people often use the word judicial activism when judges use judicial review to also push their own ideas or values.
In India, the terms are often confused. But remember:
- Judicial review = checking the law
- Judicial activism = shaping the law to protect justice
Judicial activism = judicial law-making — when judges take steps to fill legal gaps or protect rights.
Through PILs, courts have increased their role in reviewing many types of government actions.
This larger role is often called judicial activism.
When courts strike down a law, it falls under judicial review.
But when they go further to guide policy or set rules, it is called judicial activism.

✅ In short:

Judicial Review is like checking whether a law is correct.
Judicial Activism is like going one step further—correcting or improving things even when there is no law.

✅ JUSTIFICATION OF JUDICIAL ACTIVISM – Easy Version

🔵 1. As per Dr. B.L. Wadehra – Why Judicial Activism Happens:

No.	Reason	Simple Explanation
(i)	Collapse of Government	When Legislature and Executive fail to do their work properly, people lose trust in the system. Then the judiciary steps in.
(ii)	People Look to the Courts	Citizens depend on the judiciary to protect their rights and freedoms when other organs fail.
(iii)	Judicial Enthusiasm	Judges want to help with social change, so they support PILs and allow more people to approach courts easily.
(iv)	Legislative Vacuum	If no law exists on a certain issue, the courts step in and create legal rules to deal with that issue.
(v)	Constitutional Support	The Constitution gives enough powers to judiciary to act actively and protect justice.

🟠 2. As per Subhash Kashyap – When Courts Must Intervene:

No.	Situation	Simple Explanation
(i)	Legislature fails	When lawmakers don't do their job, courts have to act.
(ii)	Hung Legislature	If no party has a clear majority, governments become weak and avoid hard decisions. Then courts step in.
(iii)	Fear of Losing Power	Leaders avoid making tough decisions and send issues to courts to delay them or blame courts.
(iv)	Failure to Protect Rights	If government fails to give people basic rights like clean air, good life, or honest administration, courts take action.
(v)	Misuse of Law	In times like Emergency (1975–77), strong governments tried to misuse law. Judiciary needs to be alert.
(vi)	Judicial Weaknesses	Sometimes even courts may go wrong, seeking popularity, media attention, or taking unnecessary cases.

🟢 3. As per Dr. Vandana – Signs of Judicial Activism:

No.	Sign	Simple Explanation
(i)	More Rights to Be Heard	Courts allow more people to participate in administrative decisions.
(ii)	Too Much Delegation	When powers are given to others without proper rules, courts step in.
(iii)	Checking Discretionary Powers	Courts control how much freedom officials have in decision-making.
(iv)	Judicial Review Over Administration	Courts closely watch how government works and check its fairness.
(v)	Open Government	Courts push for transparency—people should know what the government is doing.
(vi)	Contempt Power Misuse	Sometimes courts may overuse contempt laws to punish critics.
(vii)	Taking Extra Powers	Courts may interfere in areas they are not supposed to.
(viii)	Stretching Interpretation	Courts interpret laws too widely to bring social or economic change.
(ix)	Unworkable Orders	Sometimes courts pass orders that can’t be followed in reality.

📝 Summary (in 3 lines):

Judicial activism becomes necessary when the legislature and executive fail to do their duties.
It is also pushed by people’s expectations, judicial passion, and constitutional support.
But sometimes, activism can go too far—courts may take up powers not meant for them, or pass orders that don’t work in real life.

✅ ACTIVATORS OF JUDICIAL ACTIVISM – Easy Summary

🔷 What does this mean?

Judicial activism in India didn’t happen by chance. It was started and encouraged by various groups and individuals who fought for justice in different areas of society. Upendra Baxi, a famous legal scholar, listed 15 types of such groups who pushed the courts to take action.

🔹 1. Civil Rights Activists

Fought for political and civil freedoms like free speech, equality, and fair treatment.

🔹 2. People's Rights Activists

Focused on economic and social rights, especially when the government repressed people's movements (like protests).

🔹 3. Consumer Rights Groups

Raised voice against cheating in markets and demanded that consumers be treated fairly.

🔹 4. Bonded Labour Groups

Worked to end bonded labour and wage slavery, especially in poor and backward areas.

🔹 5. Citizens for Environmental Action

Pressured courts to stop pollution and protect forests, rivers, air, etc.

🔹 6. Groups Against Large Irrigation Projects

Opposed big dams or irrigation projects that displaced people or harmed the environment.

🔹 7. Child Rights Groups

Worked to end child labour, improve education, and protect abused or neglected children, including children of sex workers.

🔹 8. Custodial Rights Groups

Focused on people in jails, custody, or detention, especially women and undertrials. Fought for basic human rights for them.

🔹 9. Poverty Rights Groups

Raised legal issues related to drought, hunger, urban poor, and poor living conditions.

🔹 10. Indigenous People's Rights Groups

Worked for tribal people, forest dwellers, and those under Fifth & Sixth Schedules of the Constitution. Demanded identity and land rights.

🔹 11. Women’s Rights Groups

Took legal action for gender equality, protection from violence, rape, dowry deaths, and workplace harassment.

🔹 12. Bar-Based Groups

These were lawyers’ associations that fought for the independence of the judiciary and its accountability.

🔹 13. Media Autonomy Groups

Demanded freedom of the press and media, especially from government control.

🔹 14. Lawyer-Based Groups

A variety of influential lawyers and law groups who filed cases to push social change.

🔹 15. Individual Petitioners

Ordinary people or freelance activists who independently filed PILs or cases for public interest.

📝 Final Summary:

These 15 categories of groups and people played a major role in activating the judiciary to go beyond traditional roles. They filed Public Interest Litigations (PILs), raised social issues, and forced courts to take steps for justice. This collective effort gave rise to Judicial Activism in India.

✅ APPREHENSIONS OF JUDICIAL ACTIVISM (As per Upendra Baxi)

Upendra Baxi explains the fears and doubts created by too much judicial activism. These fears affect even the most sincere judges and make them think twice.

🧠 Type of Fear	🔍 Simple Explanation
1. Ideological Fear	Are judges taking over the roles of Parliament, government, or other independent bodies?
2. Epistemic Fear	Do judges have enough expert knowledge in areas like economics, science, etc., to pass such judgments?
3. Management Fear	Is the judiciary adding more burden to an already heavy case backlog by accepting all PILs?
4. Legitimation Fear	If the government ignores court orders, will that reduce people’s trust in the judiciary?
5. Democratic Fear	Does filing too many PILs help democracy or weaken its future by overusing courts?
6. Biographic Fear	Judges may worry about their post-retirement image if they act too aggressively in activism.

🔁 JUDICIAL ACTIVISM vs JUDICIAL RESTRAINT

🔷 Meaning of Judicial Restraint:

Judicial Restraint means that judges should not interfere too much in the work of lawmakers and government officials. Their job is to interpret the law, not to create policy or act on personal opinions.

🧩 Assumptions Behind Judicial Restraint (in the USA, and also valid in India):

🧩 No.	🧠 Assumption	📝 Explanation
1	Court is undemocratic	Since judges are not elected, they should respect democratic institutions like Parliament.
2	Judicial review not in Constitution	Courts took this power over time; it’s not clearly given in the original Constitution.
3	Separation of Powers	Each organ (Legislature, Executive, Judiciary) should not interfere in the other's role.
4	Federalism	The Court should respect state-level decisions too, not just national ones.
5	Pragmatism	Courts rely on Parliament for budget and on public trust. So they should be careful not to overreach.
6	Legal vs Political	Law is about reason and fairness, while politics is about power. Courts should stay in their own lane.

🧑‍⚖️ SUPREME COURT ON JUDICIAL RESTRAINT (2007 Judgment)

The Supreme Court of India made important observations on why courts must avoid overstepping:

⚖️ Observation No.	📝 Statement	🟢 Simple Meaning
1	Judges are unjustifiably taking up executive or legislative roles	This is unconstitutional and must be stopped.
2	Judges must be humble, not act like emperors	Courts should be modest in their approach.
3	Referred to Montesquieu’s warning	If powers are not separated, it leads to dictatorship or imbalance.
4	Activism must not become adventurism	Courts must stay within constitutional limits.
5	Courts must not embarrass administrative authorities	Government officials have expertise; courts should not interfere blindly.
6	Courts have huge case pendency	Courts themselves have issues; so blaming only the other organs is unfair.
7	Fix problems through elections or protests	Let the people hold leaders accountable, not judges.
8	Judiciary lacks resources to govern	Courts are not trained or equipped to run a country.
9	Judicial restraint protects balance	Restraint ensures respect between branches and protects judicial independence.

✍️ SUMMARY – UPSC STYLE

Judicial Activism helps in protecting rights and delivering justice when other branches fail.
But uncontrolled activism may:

Violate separation of powers,
Create backlash against judiciary,
Burden courts unnecessarily.

Thus, Judicial Restraint is important to:

Respect democratic process,
Avoid judicial overreach,
Maintain balance and public trust.

🟩 UPSC Prelims PYQs on Judicial Activism (Indirect/Related)

Judicial activism is more commonly asked in Mains, but related Prelims questions may appear under topics like Constitution, judiciary, DPSP, Fundamental Rights.

1. Prelims 2020

Q. With reference to the Indian judiciary, consider the following statements:

Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
A High Court in India has the power to review its own judgment as the Supreme Court does.

Which of the statements given above is/are correct?
Answer: Both 1 and 2 are correct.
(Relevance: Scope of judicial discretion, powers – indirect reference to activism.)

2. Prelims 2013

Q. What does the judicial review function of the Supreme Court mean?
a) Review its own judgments
b) Review the functioning of judiciary in the country
c) Examine the constitutional validity of laws
d) Undertake periodic review of the Constitution

Answer: c) Examine the constitutional validity of laws
(Relevance: Judicial review is a key tool of judicial activism.)

🟦 UPSC Mains PYQs on Judicial Activism (GS-II & Essay)

📘 General Studies Paper II

Mains 2022 – GS-II

Q. “Constitutional morality is rooted in the Constitution itself and is founded on its essential facets.” Explain the doctrine of constitutional morality with the help of relevant judicial decisions.
(Relevance: Refers to judicial interpretation expanding constitutional principles – activism.)

Mains 2021 – GS-II

Q. “Judicial legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution.” In this context, justify the entering of judiciary into the legislative domain and suggest suitable measures to minimize this trend.

Mains 2019 – GS-II

Q. Whether the Supreme Court judgment can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine.

(Relevance: Judicial intervention in executive/political domain – a feature of judicial activism.)

Mains 2018 – GS-II

Q. “In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India?”
(Relevance: Indirect – sometimes judiciary steps in electoral disputes.)

Mains 2017 – GS-II

Q. Discuss the role of judiciary in ensuring the fair and accountable administration in India.

Mains 2016 – GS-II

Q. Discuss each adjective attached to the word 'Republic' in the 'Preamble'. Are they defendable in the present circumstances?

Mains 2015 – GS-II

Q. Recent directives from Supreme Court on police reforms are necessary for upholding rule of law and ensuring human rights. Analyze.

Mains 2014 – GS-II

Q. Starting from inventing the basic structure doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy.

✅ (Most Direct Question on Judicial Activism)

📙 Essay Paper PYQs (Indirect but Relevant)

Mains 2021 – Essay

The process of self-discovery has now been technologically outsourced.
The real test of progress is not whether we add more to the abundance of those who have much, but whether we provide enough for those who have little.
(Relevance: Potential for discussing judicial activism in ensuring social justice.)

Mains 2019 – Essay

Rise of Artificial Intelligence: the threat of jobless future or better job opportunities through reskilling and upskilling
(Relevance: Judiciary’s role in regulating emerging technologies – scope for activism.)

Mains 2015 – Essay

Justice must reach the poor
(Relevance: Judicial activism and PILs – key tools to ensure this.)

✅ Summary Table

Year	Paper	Question Topic	Direct/Indirect
2022	GS-II	Constitutional morality	Indirect
2021	GS-II	Judicial legislation vs separation of powers	Direct
2019	GS-II	SC role in Delhi governance issue	Indirect
2017	GS-II	Judiciary’s role in administration	Indirect
2015	GS-II	Police reforms – SC directives	Indirect
2014	GS-II	Judicial activism & democracy	Direct
2013	Prelims	Judicial review	Indirect

Judicial Activism - M Lakshmikanth Summary UPSC notes