Judicial Activism - A Constitutional Necessity

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:24:39.091277+00:00

Updated: 2026-08-30T07:11:22.679Z

JUDICIAL ACTIVISM: A CONSTITUTIONAL NECESSITY

Smriti Dwivedi, B.B.A. LL.B. (H), Department of Law, School of Legal Studies, Babasaheb Bhimrao Ambedkar University (A Central University), Lucknow. Dr. Pradeep Kumar, Associate Professor, Department of Law, School of Legal Studies, Babasaheb Bhimrao Ambedkar University (A Central University), Lucknow.

ABSTRACT

This paper analyses the idea of judicial activism in India, advocating for its constitutional importance in maintaining democratic principles and safeguarding citizens’ rights. Examining its roots and development, the research underscores how judicial activism became significant in the 1970s and 1980s, especially through Public Interest Litigation (PIL). The judiciary has significantly influenced the interpretation of Article 21 to acknowledge several rights, including the right to education, privacy, shelter, and livelihood. The article examines how judicial activism has addressed gaps left by the legislature and executive, referencing significant cases such as Bandhua Mukti Morcha, Vishaka, and Kesavananda Bharati. It likewise highlights the judiciary’s distinct role in operating based on reason and legal principles, instead of political motivations.

In conclusion, the document asserts that although judicial activism has strengthened the Rule of Law and constitutional ethics, it should be paired with judicial restraint to prevent compromising the separation of powers vital to democratic governance.

INTRODUCTION

The phrase "judicial activism" was first introduced by Arthur Schlesinger in an article named "The Supreme Court: 1947", which appeared in Fortune magazine in January 1947. According to Black’s Law Dictionary, judicial activism is defined as “it is a philosophy of judicial decision-making whereby judges allow their personal views about 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”. 1 Thus, judicial activism refers to an active judicial approach where courts interpret laws expansively and may sometimes exceed traditional boundaries of their function to address societal problems. It is often regarded as a philosophy that allows judges to bridge gaps in the law, adjust to changing societal conditions, and enhance justice.

In India, the 1970s and 1980s saw the rise of judicial activism, particularly with the introduction of Public Interest Litigation (PIL).

In this context, it is essential to grasp the factors that prompted the emergence of judicial activism in India, transforming the judiciary’s conservative stance into an activist one. The causes for the rise of Judicial activism can be listed as follows:

1. Acknowledgment and Safeguarding of Citizens’ Rights

2. Institutional Failure of the Legislature and Executive

3. Challenging the Democratic Legitimacy of Power without Reason

4. To maintain the Rule of Law

Further, although this list cannot be said to be exhaustive, however, it provides the factors that broadly outline the reasons for the rise of judicial activism and its necessity in India. These reasons may be elaborated as follows:

ACKNOWLEDGEMENT

AND SAFEGUARDING OF CITIZENS’ RIGHTS Due to Judicial Activism, individuals can now benefit from those rights that were not

1 Nishtha Jaswal and Lakhwinder Singh, “JUDICIAL ACTIVISM IN INDIA” Bharati Law Review 1 (2017).

explicitly included by the Constitution’s framers in the original document. The judicial interpretation has contributed to the recognition of fundamental rights that are crucial for an individual’s comprehensive development and this activism has often guided the executive in effectively enforcing these rights. Some of the rights though not mentioned by the constitution makers in the Constitution but have emerged as a result of judicial activism which can be enumerated as follows:

1. Right to education2

2. Right to clean environment3

3. Right to Privacy4

4. Right to sleep5

5. Right to shelter6

6. Right to Livelihood7

7. Right to a speedy trial10

8. Right to be forgotten11

9. Right to internet8

10. Right to food9 , etc.

Thus, the development of these rights was feasible solely due to an active judiciary, which, as a guardian of the constitution, has safeguarded those rights that, although not explicitly stated in the constitution, align with the aims of the constitution’s framers by adopting a broad interpretation of the constitution rather than adhering strictly to a literal interpretation. To elaborate on this point, the evolution of the right to education is perhaps a good illustration.

2 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

3 M.C. Mehta v. Union of India AIR 1987 SC 1086.

4 K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.

5 Ramlila Maidan v. Home Secretary Union of India, (2012) 4 S.C.R. 971.

6 Chameli Singh v. State of UP, 1995 AIR 2970.

7 Olga Tellis v. Bombay Municipal Corporation, 1985 AIR

180 10 Hussainara Khatoon v. State of Bihar, (1979) 1 SCC

98. 11 K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.

8 Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.

9 People's Union for Civil Liberties v. Union of India & Others (Writ Petition [Civil] No. 196 of 2001) 14 AIR 1984 SC 802.

It can be stated without surprise that judicial activism has been crucial in achieving the right to education in India. In the case of Bandhua Mukti Morcha v. Union of India, 14 the Supreme Court ruled that the right to education is intrinsically linked to and sourced from the right to life safeguarded by Article 21 of the Constitution The Supreme Court in Mohini Jain v. State of Karnataka10, observed that “Indian civilisation recognises education as one of the pious obligations of the human society. To establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale”.

It was further declared by the Court that “The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education and thus the right to education flows directly from right to life”. 11 The Supreme Court reconsidered the Constitutional legitimacy of the right to education in J. P. Unnikrishnan v. State of A. P. 17 It concluded that the right to education under Article 21 must be understood in conjunction with the directive principles specified in Part IV of the Indian Constitution.

The Court declared that the right to education signifies: “(a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes the age of 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its developments”. 12 Consequently, in this instance, the judiciary engaged in activism to assist citizens in the realisation of their rights, while also acknowledging the responsibilities of the state toward them, considering the state’s economic constraints and development initiatives.

Yet, it wasn’t until 2002 that the Legislature acknowledged this right through the Constitution (Eighty-sixth Amendment) Act of 2002, which introduced three new provisions, Article 21A, Article 45, and Article 51-A(k), into the Indian Constitution, detailing the right to education and the obligation of the state to uphold this right. Additionally, Article 51A(k) was added to establish a duty for parents to provide opportunity of education to their children aged

10 AIR 1992 SC 1858.

11 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.

17 AIR 1993 SC 2178.

12 J.P. Unnikrishnan v. State of A.P., AIR 1993 SC 2178.

6 to 14 years. At present, the Right of Children to Free and Compulsory Education Act, 2009,

reiterates and recognizes the fundamental right to education in India. Furthermore, the court assumed the duty to enforce this right by identifying and rescuing the children who are exploited and not provided their fundamental rights including the right to education, as demonstrated in the case of Bachpan Bachao Andolan v. Union of India13, where the Supreme Court directed the government “to conduct simultaneous raids in all the circuses to liberate the children and check the violation of fundamental rights of the children. The rescued children be kept in the Care and Protective Homes till they attain the age of 18 years”.

14 Consequently, this example clearly demonstrates the substantial role judicial activism has played in shaping Fundamental rights jurisprudence and safeguarding citizens from exploitation by affirming their right to life, which extends beyond mere survival to encompass all elements that render life meaningful. INSTITUTIONAL FAILURE OF THE LEGISLATURE AND EXECUTIVE Since 1970s and 1980s, especially after the emergence of the concept of PIL, the Indian judiciary became more approachable to the common man. Now, even the voices of the deprived and marginalised groups are heard by the apex court of the country.

Further, even a person behind bars can get his voice heard in the Supreme Court of the country which is made possible by the epistolary jurisdiction of the Supreme Court in which even a petition in the form of a letter is admissible by the court, which has also developed as a result of the judicial activism. This platform provided by the judiciary to the ordinary citizen though satisfies the hunger for justice, however, it also must be determined that what led the judiciary to make such broad interpretation of the rights provided in the Constitution when there were already other branches, namely, the legislature, which is assigned with the job to make laws for protecting the rights of the citizen, and the executive, whose primary responsibility is to protect these rights by ensuring proper implementation of these rights.

13 AIR 2011 SC 3361.

14 Bachpan Bachao Andolan v. Union of India, AIR 2011 SC 3361.

The question could be satisfactorily answered by providing some illustrations wherein, the legislature and the executive have failed in protecting the rights of the citizen and therefore, the judiciary had to step in, in the form of judicial activism to safeguard those rights which the constitution makers intended to provide to the citizens of India. To state the first illustration, the case of bonded labour highlights the failure of the legislature wherein, the Bonded Labour System (Abolition) Act was not enacted until 1976, despite Article

23 of the Indian Constitution clearly forbidding forced labour. This postponement highlights a

clear instance of legislative and executive inactivity, where a basic right went unrecognized for almost twenty-five years. The disparity between constitutional principles and legal implementation not only weakened the Constitution’s authority but also sustained systemic exploitation. Even after its enactment, the law’s effectiveness remains hindered by insufficient enforcement and institutional indifference. 15 To state the second illustration, the Vishakha Guidelines are perhaps a good example. In the case of Vishaka v.

State of Rajasthan16, the Supreme Court observed that “When instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum”. 17 Thus, the Court in order to fill the legislative vacuum, exercised its authority to establish guidelines aimed at preventing sexual harassment in workplaces, representing progress towards achieving gender justice. Further, the significance of this activist approach adopted by the judiciary is also visible from the observation of the court in the case of Vineet Narain v.

Union of India,18 wherein the Supreme Court observed that “it is the duty of the executive to fill the vacuum by executive orders because its field is co-terminus with that the legislature, and where there is inaction even by the executive for whatever reason, the judiciary must step in, in exercise of its 15 Upendra Baxi, “Judicial Discourse: Dialectics of the Face and the Mask” 35(1) Journal of Indian Law Institute 1 (1993).

16 AIR 1997 SC 3011.

17 Ibid.

18 AIR 1998 SC 889.

constitutional obligations under the aforesaid provisions to provide absolution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field. ”19 Therefore, it may be concluded that, unless specific practices, institutions, or social factors are viewed as ‘unjust’ by those holding power, there is minimal motivation for legislative action. Acknowledging injustice is not just about facts but frequently involves one’s viewpoint and values. Consequently, deeply rooted exploitative behaviours might continue, not because of ignorance, but because those in power do not see them as serious enough to deserve legal action.

26 Therefore, to bridge the Governance gap arising from the shortcomings of the legislative and executive branches of government, the judiciary has repeatedly assumed a proactive stance and taken steps to meet the needs of the citizens. Consequently, today the people of India possess a range of rights, particularly concerning Article 21 of the Constitution, that were not explicitly outlined by the framers of the Constitution.

CHALLENGE

TO THE DEMOCRATIC LEGITIMACY OF POWER WITHOUT REASON The legislators are the elected representatives so it is not wrong to say that they have the mandate of the people for making laws for them. And when we talk of executive, in India, the executive and legislature mean the same thing as the members of the legislature also perform the role of the Political non-permanent executives who form the cabinet and head various ministries. Therefore, broadly it can be said that the executive and the legislature represent the people so it may be argued that when they act it is the will of the citizens as they represent the citizens. However, here it becomes pertinent to note that the judiciary, though is not an elected body and it does not represent the people still it may prove to be more accountable and responsible as it is bound to act on reason.

The judiciary has to provide a logical reasoning for all its decisions therefore it cannot act arbitrarily. To clarify this point, it is crucial to emphasize that the judiciary functions without relying solely on will or authority. Instead, judicial rulings are based on reason. They need to be supported by legal reasoning, precedent, and principles. Judges cannot simply declare a

19 Vineet Narain v. Union of India, AIR 1998 SC 889.

26 Ibid.

judgment; they must provide the reasoning for their decisions. This necessity differentiates the judiciary from the legislature, which can operate according to the political will or majority backing, even without strong rational justification. The act of exercising legislative authority, in other terms, is self-justifying. For example, the implementation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, demonstrates how political convenience or societal influences can motivate legislative action instead of legal uniformity or rational logic. No degree of legal reasoning, regardless of the underlying political power dynamics, would require such legislation. 20 Unlike a minister’s directives regarding files, judges are obligated to provide a transparent rationale for their rulings, which must be communicated and documented publicly.

Alongside this organization, the explanation and sharing of reasons should be included within a framework of judicial reasoning. Additionally, it is important to mention that previous cases serve as a reference and may occasionally restrict the alternatives available for subsequent decisions. The necessity for public discourse is thus distinctly apparent in judicial authority, which ultimately contrasts with the executive and legislative power found in the domain of pure will. 21 Moreover, the power of the judiciary to interpret the Constitution creatively is intrinsic to the constitution itself, clearly demonstrated in the case of M. Nagaraj & Ors. v. Union of India & Ors22, wherein it was observed that “Constitution is not an ephermal legal document embodying a set of legal rules for the passing hour.

It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges. ” 23 Therefore, when judges and courts settle disagreements, they do more than just provide outcomes, they participate in a more profound, continuous process. A compelling example of

20 Supra note 11.

21 Ibid.

22 AIR 2007 SC 71.

23 M. Nagaraj & Ors. v. Union of India & Ors., AIR 2007 SC 71.

this purposive interpretation is found in the authority to amend the Indian Constitution. Since its inception, a general consensus prevailed that Parliament held the ultimate power to amend, and even radically alter, the Constitution. However, this belief encountered a formidable challenge in the landmark Kesavananda Bharati24 case, where the Supreme Court, after extensive deliberation, articulated the doctrine of the Constitution’s “basic structure. ” This judgment marked a pivotal shift in the understanding of constitutional power, introducing limits to parliamentary authority and reconfiguring the relationship between the judiciary, the Constitution, and the state. Thus, in contrast to the actions of the legislature or executive, which are frequently influenced by political will, public opinion, or populist pressure, judicial rulings are expected to transcend temporary factors.

They are based on logical evaluation, directed by constitutional doctrines, and limited by judicial precedents. This expectation strengthens the judiciary’s distinct function as an interpreter, which is responsible for protecting constitutional principles even against majoritarian impulses. MAINTAINING THE RULE OF LAW The term “rule of law” is frequently contrasted with both “rule of man” and “rule according to law. ” Even in authoritarian regimes, there usually exists a legal structure that regulates the use of authority. Nevertheless, the simple presence of laws does not amount to the rule of law. Ideologically, the rule of law serves as a guiding principle for the implementation of public power. At its foundation are the ideals of equality, liberty, and responsibility.

Thus, the validity of legislative, executive, and judicial actions stems not only from their compliance with current laws, but also from their adherence to these core principles. From this perspective, it is the rule of law that should guide and define our interpretation of what valid law is and not the reverse. 25 In India, these guiding principles are outlined in the Preamble of the Constitution which is often referred to as the preface or introduction to the Constitution. It provides for certain objectives of the Constitution such as justice, liberty, equality, and freedom, which form the

24 Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C.225

25 Dr. Ashok K. Jain, Administrative Law 4,6 (Ascent Publications, Delhi, 2nd edn., 2015-16).

guiding principles. Thus, the Constitution indicates that the Rule of Law is the primary goal the framers sought to achieve in an independent India. Therefore, the principle of the rule of law is essential to democracy, and to examine the judiciary’s role in enforcing the Rule of Law, it is important to recognize that the Judiciary acts as a protector of the constitutional principles set by the founding fathers. They seek to remedy the harm created by both, the legislature and the executive, while also working to provide every citizen with what the Constitution guarantees under the Directive Principles of State Policy and more. All of this has been enabled by the power of judicial review, thus constituting a crucial component of judicial activism in India.

26 In India, there have been many occasions where the judiciary has upheld the principles outlined in the constitution to tackle systemic injustices, thereby reinforcing the rule of law. The significance of the rule of law is emphasized through the various provisions of the Constitution that have been widely interpreted and applied by the judiciary in several cases since independence, thus reinforcing the essence of the rule of law embedded in these provisions. Moreover, it also serves as an ideal instance of judicial activism. For instance, the fundamental rights cannot be reduced or eliminated by legislation in a manner that changes the ‘basic structure’ of the Constitution; additionally, the autonomy of the judiciary represents another aspect of the rule of law in India.

Furthermore, judicial review, which is a fundamental aspect of the Constitution, is a crucial component of the rule of law in India27 Additionally, it is important to highlight that Public Interest Litigation, arising from judicial activism, has considerably bolstered the rule of law by protecting personal freedoms. Through Public Interest Litigation (PIL), the Supreme Court of India has asserted that any person or social group may file a petition on behalf of a victim unable to do so due to poverty, disability, or being in a disadvantaged social or economic condition. 28 26 Nasir Kasam Sheikh, “Instruments of Judicial Control: Judicial Review & Judicial Activism and Need for Judicial Restraint in India” 6(2) International Journal for Multidisciplinary Research 1 (2024).

27 Supra note 22.

28 Atisha Sisodiya, Ayush Gupta, and Afshan Nazir, “Recent Activist Trends in Indian Judiciary: Judicial Restraint and Judicial Overreach” 4(3) Journal of Legal Studies and Research 119 (2018).

Moreover, the concept of the rule of law has developed to encompass different aspects that not only restrict governmental activities but also establish a positive duty of “fairness” on the government across all spheres of State power application. Moreover, the Supreme Court’s decisions have also underscored this beneficial aspect. For example, the case of P. Sambamurthy v. State of A. P. 29 is significant because the court found unconstitutional the clause permitting the State government to reverse any decision made by the Administrative Services Tribunal. It was observed that the power of judicial review is what maintains the Rule of law and guarantees that all branches of the State function within legal limits.

30 Consequently, the judiciary’s efforts to validate ‘due’ administrative authority and delegitimize ‘undue’ authority through the application of substantive and procedural norms and standards can be considered an important benchmark of judicial activism for reinforcing the Rule of Law principle in India. 31 It is asserted that judicial independence is a principal tenet of the Indian constitution, as the judiciary is essential in ensuring that governmental bodies function within legal limits and protects citizens from the abuse of power. Therefore, in the case of Supreme Court Advocates on Record Association v. Union of India32, the Supreme Court emphasized the critical role of judicial independence within a democratic framework, stating that the ‘Independence of Judiciary’ constitutes a fundamental aspect of the Constitution’s basic structure.

Judicial independence is a vital component of the rule of law and a core aspect of the constitution. The judiciary must function free from any pressure or influence from any source, as the constitution guarantees their independence. 40 Consequently, judicial activism, which includes judicial review and judicial independence, serves as a proponent of the Rule of Law by facilitating access to justice and ensuring the appropriate enforcement of fundamental rights protected by the Constitution, while also upholding constitutional principles when other institutions falter. Nonetheless, in exercising judicial activism, the court needs to exercise caution, as it may pose a danger to the rule of law if not accompanied by appropriate judicial restraint, potentially resulting in the

29 (1987) 1 SCC 362.

30 Supra note 23.

31 Ibid.

32 (2015) 13 S.C.R.1.

40 Supra note 23.

judiciary overstepping into the territory of the legislature or executive, thereby weakening the separation of powers, an essential aspect of the rule of law.

CONCLUSION

Judicial activism in India has developed into an essential tool for maintaining the essence of the Constitution, particularly during instances when the legislature and executive have failed in their constitutional duties. This research has demonstrated that judicial activism has been both a response to institutional shortcomings and a proactive force in broadening and protecting fundamental rights, especially with respect to Article 21. From acknowledging rights like education, shelter, privacy, and dignity, to crafting significant guidelines when legislation is lacking, as illustrated in the Vishakha case, the judiciary has frequently stood as the ultimate guardian for justice. Simultaneously, judicial activism should be considered from a balanced perspective.

Although it has enabled courts to address governance gaps and uphold constitutional requirements, uncontrolled activism poses a threat to the separation of powers. The judiciary’s power comes from its dedication to logic, established cases, and constitutional values and not from public support. Consequently, the boundary between activism and overreach must be navigated with caution and introspection. In the end, the judiciary’s proactive approach has been defended not only by the necessity to uphold rights, but also by its function as a protector of the constitution, particularly in a democracy where the desires of the majority can occasionally endanger personal liberties. In this context, judicial activism acquires both legal and moral importance, bolstering the rule of law and providing substantial significance to the rights of individuals.

Nevertheless, this authority should consistently be moderated by judicial restraint in order to maintain institutional integrity, democratic accountability, and the sanctity of the Constitution.

REFERENCES

BOOKS

Dr. Ashok K. Jain, Administrative Law 19-20 (Ascent Publications, Delhi, 2nd edn., 2015-16). • Benjamin N. Cardozo, The Nature of the Judicial Process (Universal Law Publishing Co., New Delhi, First Indian Reprint, 1999).

JOURNALS

Upendra Baxi, “Judicial Discourse: Dialectics of the Face and the Mask” 35(1) Journal of Indian Law Institute 1 (1993) • Nishtha Jaswal and Lakhwinder Singh, “JUDICIAL ACTIVISM IN INDIA” Bharati Law Review 1 (2017). • Nasir Kasam Sheikh, “Instruments of Judicial Control: Judicial Review & Judicial Activism and Need for Judicial Restraint in India” 6(2) International Journal for Multidisciplinary Research 1 (2024). • Atisha Sisodiya, Ayush Gupta, and Afshan Nazir, “Recent Activist Trends in Indian Judiciary: Judicial Restraint and Judicial Overreach” 4(3) Journal of Legal Studies and Research 119 (2018).

STATUTE

The Constitution of India, 1950

CASE LAWS

Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. • Mohini Jain v. State of Karnataka, AIR 1992 SC 1858. • J.P. Unnikrishnan v. State of A.P., AIR 1993 SC 2178.

Bachpan Bachao Andolan v. Union of India, AIR 2011 SC 3361. • Vishaka v. State of Rajasthan, AIR 1997 SC 3011. • Vineet Narain v. Union of India, AIR 1998 SC 889. •

M. Nagaraj & Ors. v. Union of India & Ors, AIR 2007 SC 71.

Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C.225 •

P. Sambamurthy v. State of A.P. , (1987) 1 SCC 362.

Supreme Court Advocates on Record Association v. Union of India, (2015) 13 S.C.R.1. • M.C. Mehta v. Union of India AIR 1987 SC 1086. • K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161. • Ramlila Maidan v. Home Secretary Union of India, (2012) 4 S.C.R. 971. • Chameli Singh v. State of UP, 1995 AIR 2970. • Olga Tellis v. Bombay Municipal Corporation, 1985 AIR 180. • Hussainara Khatoon v. State of Bihar, (1979) 1 SCC 98. • K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161. • Anuradha Bhasin v. Union of India, AIR 2020 SC 1308. • People's Union for Civil Liberties v. Union of India & Others (Writ Petition [Civil] No. 196 of 2001).