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Judicial Activism

Submitted By:- Garima Rathi


B.B.A. LL.B. -3RD Year
Roll No.- A048
RESEARCH PROBLEM:Judicial activism is not an easy concept to define. It means different things to different
persons. So, in this research paper researcher would be trying to analyze concept of judicial
activism and problem related to it.
The structure of any democratic government rests on three pillars the executive, the
legislature and the judiciary. Under the Constitution, the primary function of the legislature is
to make law, that of the executive is to execute law and that of the judiciary is to enforce the
law. But problem arises when the legislature refuses to take an action, and due it vacuum is
created and in order to fulfill the changing needs of society Judiciary starts pulling up its
socks and making laws or start giving guidelines when there is no law. But one of the main
concerns related to Judicial Activism is that the law making done by judges is no good till it
is brought into effect. The law making organ of the government- the Legislature has the
means of making laws and bringing them into effect, unfortunately the Judiciary does not. So,
here the main problem attach with it is when Judiciary makes a law but fails to effectively
implement it because of lack of means to do so.
Judicial Activism is not defined in any statute or act. It has acquired importance due to public
interest litigation. PIL has been considered a boon, as it is a cheap legal remedy due to
nominal costs involved in filing the litigation. But there are some problems also with it. There
has been an increase of frolicsome cases being filed due to low court fees. In view of this,
supreme court has formed certain guidelines by considering its activist role which will be
analysized by the researcher while dealing the interpretation of case laws related to it.
Subsequently, the researcher would be focusing on the interpretation of case laws which is
already decided by the court. Here, researcher will review mainly three case laws which will
prove that judicial activism may work towards the benefit of the society but that is not always
the case. Some judgments have been delivered with great insight and visualization but some
others are based only on self conviction and belief, that such a judgment would help the
parties, without taking into consideration the repercussions on the law or on the society at
large. So, these three cases include:1. Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225
2. Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266.
3. Arnit Das Vs. State of Bihar, AIR 2000 SC 2244

RESEARCH METHODOLOGY:The doctrinal method of research has been used, which involve collection of data from
both primary and secondary sources. The researcher has relied on primary sources like
International Charters, resolutions of the international bodies and committees related thereto
and secondary sources like books written by various eminent authors and articles found in the
journals and websites, e-journals. Use of internet also became very relevant to find out the
most updated, relevant and apt information which helped the researcher in exploring the
subject from various dimensions.

REVIEW OF LITREATURE:1. Disturbing trends in judicial activism-T. R. ANDHYARUJINA1


This is an article from newspaper The Hindu which focus on the problem that due to the
public interest litigation judiciary is going out its way and performing its duty to provide
justice to masses. It also tells that Public Interest Litigation is a good thing when it is used to
enforce the rights of the disadvantaged. But it has now been diluted to interfere with the
power of the government to take decisions on a range of policy matters. This article clearly
indicates that in India in order to access to court to the poor, indigent and disadvantaged
section of the country who cannot afford expensive court fees raise their voice through
Public Interest Litigation, is unexceptionable judicial activism. From 1979, the judiciary led
by the Supreme Court in India became relevant to the nation in a manner not contemplated by
the makers of the Constitution and became an active participant in the dispenser of social
justice.
It is a matter of concern that over the years this original, useful and unexceptionable character
of the Courts activism in PIL has been largely changed into a general supervisory jurisdiction
to corroborate actions and policies of government, public bodies and authorities. This is a
type of judicial activism unparalleled in any other judiciary.
2. Separation of Powers, Judicial Review and Judicial Activism- - by Justice
Markandey Katju2

1http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece- Disturbing
trends in judicial activism- The Hindu Article updated on 6th August 2012 which lays emphasis on the PIL and
its impact on Judicial power of Justice to the society at large.

2 http://justicekatju.blogspot.in/2013/10/separation-of-powers-judicial-review.html -An Article by


Justice Katju who relies on the importance of separation of power and role of judiciary in a
democratic country. This article published on 24th October 2013

In this article Justice Katju laid down emphasis on separation of powers and philosophy of
judicial activism. He explained the separation of powers theory of the French writer
Montesquieu which state that law making was the job of the legislature, and taking
administrative and policy decisions was the job of the executive. Judges were expected to be
like a referee in a football match, who was only to see that the rules were followed, but was
not to himself take part in the match nor advise the players how to play.
As an ideology of the judicial process, judicial activism implies the use of the court as an
apparatus for intervention over the decisions of policymakers through precedent in case law.
doing so, the Court often creates law and seeks to play a greater part in the governance of a
country through allowing their personal views about public policy to aid them in their
decisions. The role of judges in such cases goes beyond the traditional interpretative role
that has been assigned to them, and shifts to a model by which judges seek to make law,
encroaching on the Separation of Powers doctrine, which forms the bedrock of the Indian and
United States constitutional system. When a Court strikes down a law in an activist
manner, it places primacy upon its interpretation of a constitutional text, sidelining the
opinion of the legislature or executive.
RESEARCH QUESTIONS:1. Weather judicial activism has become an integral part of our constitutional system and
power has been vested in the courts to decide the validity of provisions of statutes?
2. The country like India which is having written constitution has a wider scope of
Judicial Activism?
3. Should courts disregard other concepts if it is necessary to protect the rights of
minorities?
4. Weather the judges obliged to stick to their traditional approach to whatever the
circumstances are?
5. Weather Supreme Court in its activism failed to respect the constitution?
6. Is the judiciary responsible/ accountable to anyone for its interferences with the
functions clearly of administrative or legislature nature and what are the constitutional
and legal sanctions behind such orders made and directions given by courts, by way
of judicial activism?
7. How judicial restraint is different from judicial activism?
8. Weather judicial activism blessings or disguise?
HYPOTHESIS
1. Dilution of the theory of separation of powers is inadvertent when there is an activist
Judiciary.
2. Judicial Activism could be used by the current day political establishments to get their
interests protected. And thus there may be misuse of the Judicial Process.

Scheme of Chapterization:The complete project is divided into five chapters. The first chapter is an introduction to
the research project. The second chapter focuses on judicial activism in India. The third is the
study on public interest litigation. The fourth chapter deals with the case study i.e. the
interpretation of cases and the last chapter is the closing of the paper or summing up the
paper and finding out a final conclusion from the paper.