MATS LAW SCOOL

Efaf Ali (3rd year 5th sem)

JUDICIAL ACTIVISM
INTERPRETATION OF
STATUTES

SUBMITTED TO AND UNDER THE GUIDANCE OF- Asst. Prof. SACHIN SHARMA

TABLE OF CONTENTS
Chapterization

Page No.

Disclaimer..............................................................................................3
Acknowledgement...................................4
Table of Abbreviation ....................................................................................................5

Chapters
I.

Introduction.............................................................................................................6
Brief introduction of the research project
Objects of research
Research Methodology
Scheme of Chapterization

II.
III.
IV.
V.

Judicial Activism......................................................................................................9
Public Interest Litigation.........................................................................................16
Implication of Judicial Activism..............................................................................18
Conclusion.............................................................................................................21
Bibliography................................................................................................................23

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Disclaimer
This project report has been prepared by the author as a student of 3rd year under the five
year BBA.LL.B (H) Program in the MATS Law School for academic purposes only. The
views expressed in this report are personal to the student and do not reflect the view of
commission or any another person, law school or any of its staff or personnel. Any for
academically publishing of this article then it must be authority from the respective law
school in any manner. This report is the International Law and Regulation of Refugees and
the same or any part thereof may not be used in any manner whatsoever, without express
permission of the MATS Law School in writing.

Efaf Ali

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ACKNOWLEDGEMENT
I feel highly elated to work on this dynamic and

highly important topic that is

Judicial Activism. This topic instantly drew my attention and attracted me to research on it.
I am fortunate to be provided with an opportunity to write my paper under the kind
supervision of Mr. Sachin Sharma (Asst. Prof., MATS Law School) and I am thankful to him
for providing me with the appropriate guidance while writing the paper.
This paper would not have been possible without her valuable inputs, honest remarks
and earnest effort to guide me throughout the drafting of the paper. I would like to extend my
sincere thank to her for giving me her valuable time to view my research from her busy
schedule.
I am highly indebted to the library staff to help me find the relevant books and
journals, and other officials and office staffs, who have also extended their help whenever
needed.
I would like to extend my sincere thanks to my friends and for their review and honest
remarks.
So, I hope I have tried my level best to bring in new ideas and thoughts regarding the
basics of this topic. Not to forget my deep sense of regard and gratitude to my faculty adviser,
Mr. Sachin Sharma who played the role of a protagonist. Last but not the least; I thank all the
members of the MATS Law School and all others who have helped me in making this project
a success.

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Table of Abbreviations
TNC.Terms And Conditions
S.C..................................................................................................................Supreme Court
H.C.....High Court
PIL....Public Interest Litigation
Art.Article
V. ......Versus
TRAI..Telecom Regulatory Authority of India

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Ch I -INTRODUCTION
Judiciary has become the centre of controversy, in the recent past, on account of the sudden
level of judicial intervention. The area of judicial intervention has been steadily expanding
through the device of public interest litigation.
The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce
the basic rights of the poor and vulnerable sections of society, by progressive interpretation
and positive action.
The Supreme Court has developed new methods of dispensing justice to the masses through
the public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership
public interest litigation attained a new dimension comments that "the supreme court has
developed several new commitments.
It has carried forward participative justice. It has laid just standards of procedure. It has made
justice more accessible to citizens".
The term 'judicial activism' is intended to refer to, and cover, the action of the court in excess
of, and beyond the power of judicial review. From one angle it is said to be an act in excess
of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for
'activism' as such on the Court.
Judicial activism refers to the interference of the judiciary in the legislative and executive
fields. It mainly occurs due to the non-activity of the other organs of the government.
Judicial activism is a way through which relief is provided to the disadvantaged and
aggrieved citizens. Judicial activism is providing a base for policy making in competition
with the legislature and executive. Judicial activism is the rendering of decisions, which are
in tune with the temper and tempo of the times.
In short, judicial activism means that instead of judicial restraint, the Supreme Court and
other lower courts become activists and compel the authority to act and sometimes also direct
the government regarding policies and also matters of administration.
Judicial activism has arisen mainly due to the failure of the executive and legislatures to act.
Secondly, it has arisen also due to the fact that there is a doubt that the legislature and
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executive have failed to deliver the goods. Thirdly, it occurs because the entire system has
been plagued by ineffectiveness and inactiveness.
The violation of basic human rights has also led to judicial activism. Finally, due to the
misuse and abuse of some of the provisions of the Constitution, judicial activism has gained
significance.

Objectives of the paper :The paper has been designed to fulfill following objectives, which could contribute
and facilitate to enhance the understanding following:1. To study and understand what judicial activism is.
2. To study and analyze the merits of judicial activism.
3. To study and analyze the drawbacks of judicial activism
4. To study and analyze the process of implication of judicial activism
5. To study and know the areas of judicial activism.
6. To study and know the various approaches to judicial activism.

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 me in exploring the subject from
various dimensions.
Scheme of Chapterization
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The complete project is divided into five chapters. The first chapter is an introduction to the
research project. The second focuses on what Judicial Activism is. The third one is the study
on Public Interest Litigation. The fourth chapter deals with the process of recognizing the
implications of Judicial Activism. And the last chapter is the closing of the paper summing up
the paper and finding out a final conclusion from the paper.

Ch II - Judicial Activism

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The judicial activism is use of judicial power to articulate (express) and enforce what is
beneficial for the society in general and people at large. Supreme Court despite its
constitutional limitation has come up with flying colors as a champion of justice in the true
sense of the word. JUSTICE this seven letter word is one of the most debated ones in the
entire English dictionary. With the entire world population being linked to it, there is no
doubt about the fact that with changing tongues the definition does change. The judicial
activism has touched almost every aspect of life in India to do positive justice and in the
process has gone beyond, what is prescribed by law or written in black and white. Only thing
the judiciary must keep in mind is that while going overboard to do justice to common man
must not overstep the limitations prescribed by sacrosanct i.e. The Constitution.

Judicial activism describes judicial rulings suspected of being based on personal or political
considerations rather than on existing law.1 The question of judicial activism is closely related
to constitutional interpretation, statutory construction, and separation of powers.
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making
whereby judges allow their personal views about public policy, among other factors, to guide
their decisions." Judicial activism means active role played by the judiciary in promoting
justice. Judicial Activism to define broadly, is the assumption of an active role on the part of
the judiciary.2 Ronald Dworkin, for example, rejects a strict interpretation of the
constitutional text because it limits constitutional rights to those recognised by a limited
group of people at a fixed date of history.

According to Prof. Upendra Baxi, Judicial Activism is an inscriptive term. It means different
things to different people. While some may exalt the term by describing it as judicial
creativity, dynamism of the judges, bringing a revolution in the field of human rights and
social welfare through enforcement of public duties etc., others have criticized the term by

1http://en.wikipedia.org/wiki/Judicial_activism
2 Chaterji Susanta, For Public Administration Is judicial activism really deterrent to legislative
anarchy and executive tyranny ? , The Administrator, Vol XLII, April-June 1997, p9, at p11
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describing it as judicial extremism, judicial terrorism, transgression into the domains of the
other organs of the State negating the constitutional spirit etc.
Judicial activism implies going beyond the normal constraints applied to jurists and the
Constitution, which gives jurists the right to strike down any legislation or rule against the
precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial
precedent is not necessarily judicial activism unless it is active. In the words of Justice J.S
Verma , Judicial Activism must necessarily mean the active process of implementation of
the rule of law, essential for the preservation of a functional democracy.
In a modern democratic set up, judicial activism should be looked upon as a mechanism to
curb legislative adventurism and executive tyranny by enforcing Constitutional limits. That
is, it is only when the Legislature and the Executive fail in their responsibility or try to avoid
it, that judicial activism has a role to play. In other words, judicial activism is to be viewed as
a damage control exercise, in which sense, it is only a temporary phase. Recent times have
seen judiciary play a intrusive roles in the areas of constitutionally reserved for the other
branches of governments. Issues in judicial activism arise, when governance is apparently
done by Mandamus.
The Constitution of India operates in happy harmony with the instrumentalities of the
executive and the legislature. But to be truly great, the judiciary exercising democratic power
must enjoy independence of a high order. But independence could become dangerous and
undemocratic unless there is a constitutional discipline with rules of good conduct and
accountability: without these, the robes may prove arrogant.3
Judicial activism is the views that the Supreme Court (S.C) and other judges can and should
creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges'
own visions regarding the needs of contemporary society. 4Judicial activism believes that
judges assume a role as independent policy makers or independent "trustees" on behalf of

3 Http://www.thehindu.com/opinion/lead/article3785898.ece
4 http://definitions.uslegal.com/j/judicial-activism/
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society that goes beyond their traditional role as interpreters of the Constitution and laws. The
concept of judicial activism is the polar opposite of judicial restraint.
Failure on part of the legislative and executive wings of the Government to provide good
governance makes judicial activism an imperative. Delivering justice to a population of over
a billion does not sound like and never will be an easy task. It however becomes increasingly
difficult in a country like India. The Executive, the Legislature and the Judiciary are the three
wings of the Indian democracy.
Judicial activism, however, came into its own only in the last couple of years. In his Dr. Zakir
Hussain Memorial Lecture, Former Chief Justice of India A.M. Ahmadi said, In recent
years, as the incumbents of Parliament have become less representative of the will of the
people, there has been a growing sense of public frustration with the democratic process. This
is the reason why the (Supreme) Court had to expand its jurisdiction by, at times, issuing
novel directions to the executive.
Many are critical of judicial activism as an exercise of judicial powers, which displaces
existing laws or creates more legal uncertainty than is necessary, whether or not the ruling has
some constitutional, historical or other basis. Judicial activism can be considered as
legislating from the bench. Some have even gone to the extent of calling it judicial tyranny.
This implies that a judge is ruling on the basis personal political convictions or emotions.
Declaring that the judiciary has a vital function to protect minority rights in a pluralist
society, former Attorney General of India Soli J Sorabjee

said ''judicial activism has

contributed to the protection of fundamental human rights.5

When serious issues like environmental pollution crop up and the statutory bodies take no
action and the people suffer, the courts have to step in to alleviate human suffering, he added.
Calling upon the judiciary to evolve a ''jurisprudence of compassion'', Mr Sorabjee said the
institution of public interest litigation (PIL) had helped to secure ''fundamental rights as a
living reality for some sections of society.'' However, the senior Supreme Court lawyer
cautioned that PIL ''could not be treated as a pill for every ill'' and said that some had sought
to use it as an instrument of blackmail and oppression. The judiciary had to be vigilant
5 http://news.oneindia.in/2008/11/15/sorabjee-defends-judicial-activism-1226761401.html
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against personal, political and publicity-oriented litigation masquerading (Pretend to be

someone or something that you are not ) as PIL, he added. However, the abuse of PIL was not
a ground for its abolition or restriction as it had played an important role in securing justice to
suffering sections, ranging from under-trial prisoners to children working in hazardous
occupations and workers treated as slaves in quarries and kilns. Lauding Justice (Retd.) V R
Krishna Iyer for his judgments upholding rights of prisoners, Mr Sorabjee said torture was
rampant in Indian prison cells. By giving judgments against solitary confinement and
handcuffing of prisoners, Justice Krishna Iyer had upheld basic human dignity.
Judicial activism might sound, for a lay man, a heavy-duty term but in the simpler manner is
quite easy to comprehend. We can say in simple words that judicial activism is a practice by
the judges that does not involve the balance of law, instead it hampers it. In judicial activism,
the judge places his final decision with his heart and mind, which is emotionally handled. It,
at times, works in our favour to save from the wrong decision to take place but at times it also
backfires on us. In other words we can easily say that judicial activism is the practice going
beyond the normal law for the jury. There are some very important cases which come in the
talk whenever we discuss about judicial activism in India. Bhopal gas tragedy and the
Jessica Lal Murder case are among the top two. The latter was an open and shut case for all.
Money and muscle power tried to win over the good. But lately, it was with the help of
judicial activism that the case came to at least one decision. The two most prominent figures
in the Bar Council of India whose names are the most inter related with judicial activism are
Justice Prafullachandra Natwarlal Bhagwati and Justice Vaidyanathapura Rama Krishna Iyer.
The Golak Nath case6 is an example of judicial activism. The Supreme Court by a majority of
six against five laid down that the fundamental rights as enshrined in Part-III of the
Constitution are immutable and beyond the reach of the amendatory process. The power of
parliament to amend any provision in Part-III of the Constitution was taken away. In
Kesavananda Bharati case by a majority of seven against six, the Supreme Court held that by
Article 368 of the Constitution, Parliament has amending powers. But the amendatory power
does not extend to alter the basic structure or framework of the Constitution. The basic
features of the Constitution being : (i) Supremacy of the Constitution; (ii) Republican and
6 DR. BHURE LAL, Judicial Activism and Accountability, Siddharth Publications, ISBN : 817220-158-3,p38-39
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Democratic form of government; (iii) Secularism; (iv) Separation of powers between the
legislature, the executive and the judiciary; and (v) Federal character of the Constitution.
Supremacy and permanency of the Constitution have thus been ensured by the
pronouncement of the summit court of the country with the result that the basic features of
the Constitution are now beyond the reach of Parliament.
After making these observations certain reasons can be generalized which lead to judicial
activism. The following are some of the well accepted reasons which compel a court or a
judge to be active while discharging the judicial functions assigned to then either by a
constitution or any other organic law7.
i) Near Collapse of responsible government.
ii) Pressure on judiciary to step in aid.
iii) Judicial enthusiasm to participate in social reform and change.
iv) Legislative vacuum left open.
v)The constitutional scheme.
vi)Authority to make final declaration as to validity of a law.
vii)Role of Judiciary as guardian of fundamental rights.
viii) Public confidence in the judiciary etc.
In the 1980s two remarkable developments in the Indian legal system provided a strong push
to judicial activism in India.8 There was a broadening of existing environmental laws in the
country and judicial activity through public interest litigation began in earnest in India. These
two developments gave more scope to citizens and public interest groups to prosecute a
corporation or a TNC which violates environmental norms.
It is a known fact that judicial activism has given us some very good case laws and path
breaking judgments, which even led to revolutionary changes in the society, To deny judicial
activism to the courts is to nullify the judicial process and to negate justice. Take away
7 Omdutt role of judiciary in the democratic system of india (judicial activism under the supreme court of india)
: golden research thoughts (sept ; 2012)

8 by Pranay Lal and Veena Jha, Judicial activism and the environment in India. Implications for transnational
corporations, Occasional paper no.6, report as part of unctad /cbs project: Cross Border Environmental
Management In Transnational Corporations

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judicial activism and tyranny will step in to fill the vacant space. 9 It is rightly stated by
former Justice, Hidaytuallah that The first principle to observe is that the wisdom of the law
must be accepted. A little incursion into law-making interstitially, as Holmes put it, may be
permissible. For other cases the attention of Parliament and/or Government can be drawn to
the flaw.10
In India, although the activism versus restraint debate existed even in the pre-Constitution
period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself
became very active. However, the underlying philosophical issue of the relationship between
means and ends has been long debated in Indian philosophy.

11

Mahatma Gandhi who

advocated that the means used for achieving a particular result must also be as acceptable as
the result itself. As we shall see, the saga of judicial decision-making by the highest court in
India indicates that judicial activism or the mere pursuit of ends without regard to the means,
has become the dominant approach in judicial thinking.
With this background, it becomes necessary for the Judge to ask, like Hamlet, whether it is
nobler in the mind to remain impervious to the dominant discourse around, or to trim the sails
of his thinking to the winds blowing around. This is a question of great moment, which must
haunt any conscientious Judge. Tradition and good sense demand that, irrespective of the
political debate around, the Judge maintains a neutral stance in his decision-making, being
guided only by accepted legal principles and the dictates of his conscience. The Judge being
human, the social ambience in which he operates is likely to affect his judgment, but the
extent to which he disallows this to happen determines his mettle.
It was rightly put by legal luminary, Former Justice, Shri B.N Shrikrishna , in his art.
Skinning the Cat that undesirable consequences ensuing from Judicial activism are delay,
backlog and abuse of public interest litigation, expediency and judicial error, credibility of
9 Madon, D.P., Conference Paper, the Third International Conference of Appellate Judges, p.207 at
p.210.
10 Justice M. Hidayatullah, Highways and Bye-Lanes of Justice, (1984) 2 SCC J-1 at p. 5
11 By Justice B.N. Srikrishna, SKINNING A CAT , (2005) 8 SCC (J) 3

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institution is questioned in certain situations, diversion of institutional resources for the

purposes other than constitutionally assigned and finally judicial activism is personality
drivern than institutionalized adjudication.
Areas of Judicial Activism
During the past decade, many instances of judicial activism have gained prominence. The
areas in which judiciary has become active are health, child labour, political corruption,
environment, education, etc.
Through various cases relating to Bandhua Mukti Morcha, Bihar Under trials, Punjab Police,
Bombay Pavement Dwellers, Bihar Care Home cases, the judiciary has shown its firm
commitment to participatory justice, just standards of procedures, immediate access to
justice, and preventing arbitrary state action.

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CH III - Public Interest Litigation: An Innovative Step towards Judicial

Activism
Public interest litigation means a suit filed in a court of law for the protection of public
interest such as pollution, terrorism, road safety etc. Judicial activism in India acquired
importance due to public interest litigation. It is not defined in any statute or act.
It has been interpreted by judges to consider the intent of public at large. The court has to be
satisfied that the person who has resorted to PIL has sufficient interest in the matter.
In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections
of the society who due to poverty and ignorance were not in a position to seek justice from
the courts. After the Constitution (Twenty Fifth Amendment Act, 1971), primacy was given to
Directive Principles of State Policy by making them enforceable. The courts to improve
administration by taking up PIL cases, for ensuring compliance constitutional provisions has
also increased.
PIL is filed for a variety of cases such as maintenance of ecological balance, making
municipal authorities comply with statutory obligations of provision of civic amenities,
violation of fundamental rights etc. It has provided an opportunity to citizens, social groups,
consumer rights activists etc., easier access to law and introduced a public interest
perspective. Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in
promoting this avenue of approaching the apex court of the country, seeking legal remedies in
areas where public interests are at stake.
PIL has been considered a boon, as it is an inexpensive legal remedy due to nominal costs
involved in filing the litigation. But there are some problems also in the PIL cases.
There has been an increase in the number of frivolous cases being filed due to low court fees.
Genuine cases got receded to the background and privately motivated interests started gaining
predominance in PIL cases. In view of this, the Supreme Court has framed certain guidelines
governing the PIL.
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Presently the court entertains only writ petitions filled by an aggrieved person or public
spirited individual or a social action group for enforcement of the constitutional or the legal
rights of a person in custody or of a class of persons who due to reasons of poverty, disability,
socially or economically disadvantaged position are finding it difficult to approach the court
for redress.
PIL is an extraordinary remedy available at a cheaper cost. As Justice Bhagwati observed in
the case of Asiad workers case, 'now for the first time the portals of the court are being
thrown open to the poor and the downtrodden. The courts must shed their character as
upholders of the established order and the status quo. The time has come now when the courts
must become the courts for the poor and the struggling masses of this country.

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Ch IV- IMPLICATIONS OF JUDICIAL ACTIVISM

The landscape of recent Supreme Court rulings offers some interesting insights into the
metamorphosis of judicial activism in India.12 Most strikingly, the Supreme Court recently
issued a notice to the Union government seeking an explanation of the steps taken by it to
ameliorate (make better) the plight of Indian students in Australia, who have been facing
racially motivated attacks. Foreign policy is widely considered to be non-justifiable, that is,
courts cannot interfere. Yet, the interference by Indian courts has not wholly been
condemned. The next, and almost equally striking, instance is a Supreme Court notice
questioning the proliferation of Mayawati statues, allegedly worth crores of rupees, in Uttar
Pradesh. Like foreign policy, budgetary allocations butter, guns or statues are non-justiciable.
But judicial interference in this matter too has not been deprecated, nor is it worthy of serious
censure.
However, judicial activism in India has now taken on an interesting face. The courts in India
pursue a form of review which can be described at best as dialogic a term used famously
by Peter Hogg and Allison Bushell in the context of the Canadian Supreme Courts decisions.
The Indian Supreme Courts gaze has now gone beyond the protection of the socially and
economically downtrodden, and into the realm of public administration. However, its
opinions often resemble aspirations rather than binding pronouncements. For example, the
Supreme Court issued guidelines in 2006 to reform the police administration which is a
State subject on which only the State Assemblies can legislate. Similar guidelines have been
issued increasingly in legislative spheres. Because of these opinions, at least in theory,
employers must now act against sexual harassment at the workplace, banks must be prudent
in their use of recovery agents, and police officers must follow procedures prior to an arrest,
mildly similar to the American Miranda rights. (In India, they could perhaps be called Basu
rights, considering D.K. Basu v. State of West Bengal, 1986).
In the 2G Licenses case, the Court held that all public resources and assets are a matter of
public trust and they can only be disposed of in a transparent manner by a public auction to
12 http://www.hindu.com/2009/07/18/stories/2009071852820800.htm
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the highest bidder.

13

This has led to the President making a Reference to the Court for the

Courts legal advice under Article 143 of the Constitution. In the same case, the Court set
aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G
spectrum without auction to create greater tele-density in India.
The Court has for all practical purposes disregarded the separation of powers under the
Constitution, and assumed a general supervisory function over other branches of
governments. The temptation to rush to the Supreme Court and High Courts for any
grievance against a public authority has also deflected the primary responsibility of citizens
themselves in a representative self government of making legislators and the executive
responsible for their actions. The answer often given by the judiciary to this type of overreach
is that it is compelled to take upon this task as the other branches of government have failed
in their obligations. On this specious justification, the political branches of government may,
by the same logic, take over the functions of the judiciary when it has failed, and there can be
no doubt that there are many areas where the judiciary has failed to meet the expectations of
the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: The doctrine of judicial activism which justifies
easy and constant readiness to set aside decisions of other branches of Government is wholly
incompatible with a faith in democracy and in so far it encourages a belief that judges should
be left to correct the result of public indifference it is a vicious teaching. Unless the
parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL
which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching
into the functions of other branches of government and ineffective by its indiscriminate use.
In recent orders, the Supreme Court has directed the most complex engineering of
interlinking rivers in India. 14The Court has passed orders banning the pasting of black film
on automobile windows. On its own, the Court has taken notice of Baba Ramdev being
forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The
Court has ordered the exclusion of tourists in the core area of tiger reserves. All these
13 http://indialawyers.wordpress.com/2012/08/06/disturbing-trends-in-judicial-activism/
14 http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece
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managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing
fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of
individuals or any legal issues are at all involved in such cases. The Court is only moved for
better governance and administration, which does not involve the exercise of any proper
judicial function.
On the other hand in its activist and controversial interpretation of the Constitution, the
Supreme Court took away the constitutionally conferred power of the President of India to
appoint judges after consultation with the Chief Justice, and appropriated this power in the
Chief Justice of India and a collegium of four judges. In no Constitution in the world is the
power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who
are perceived to have failed or neglected to investigate and prosecute ministers and officials
of government. Cases of this type are the investigation and prosecution of ministers and
officials believed to be involved in the Jain Hawala case, the fodder scam involving the
former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the
former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom
Minister and officials in the 2G Telecom scam case by the Supreme Court.

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Ch V - CONCLUSION
The Judiciary cannot take over the functions of the Executive. The Courts themselves must
display prudence and moderation and be conscious of the need for comity of instrumentalities
as basic to good governance. Judicial activism has to be welcomed and its implications
assimilated in letter and spirit. An activist Court is surely far more effective than a legal
positivist conservative Court to protect the society against legislative adventurism and
executive tyranny. When our chosen representatives have failed to give us a welfare state, let
it spring from the Judiciary.
The power of judicial review is recognized as part of the basic structure of the Indian
Constitution. The activist role of the Judiciary is implicit in the said power. Judicial activism
is a sine qua non of democracy because without an alert and enlightened judiciary, the
democracy will be reduced to an empty shell. Judicial activism in its totality cannot be
banned. It is obvious that under a constitution, a fundamental feature of which is the rule of
law, there cannot be any restraint upon judicial activism in matters in which the legality of
executive orders and administrative actions is questioned. The courts are the only forum for
those wronged by administrative excesses and executive arbitrariness.
Judicial activism is not an aberration. It is an essential aspect of the dynamics of a
constitutional court.15 It is a counter-majoritarian check on democracy. Judicial activism,
however, does not mean governance by the judiciary. Judicial activism must also function
within the limits of the judicial process.
The judiciary is the weakest body of the state. It becomes strong only when people repose
faith in it.16 Such faith constitutes the legitimacy of the Court and of judicial activism. Courts
must continuously strive to sustain their legitimacy. Courts do not have to bow to public
pressure, but rather they should stand firm against public pressure. What sustains legitimacy
15 S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Poly 029 (2001)
16 http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1443&context=wujlp
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of judicial activism is not its submission to populism, but its capacity to withstand such
pressure without sacrificing impartiality and objectivity. Courts must not only be fair, they
must appear to be fair. Such inarticulate and diffused consensus about the impartiality and
integrity of the judiciary is the source of the Courts legitimacy.
Take away judicial activism and tyranny will step in to fill the vacant space.
So to sum up the judicial activism in India, it will be very appropriate to quote the words of
Dr. A.S. Anand, Chief Justice of India who said :
". the Supreme Court is the custodian of the Indian Constitution and exercises judicial
control over the acts of both the legislature and the executive."
I would like to conclude by stating that the Courts are not above the Constitution and must be
conscious of the conscience of the Preamble.

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BIBLIOGRAPHY
1) Iyer, V.R. Krishna, Judicial Activism and Administrative Autonomy, The
Administrator, Vol.XLII, April-June 1997, p.1.
2) Sathe, S.P., Judicial Activism in India: Transgressing Borders and Enforcing Limits,
Oxford University Press, 2005 edition.
3) Bag, R.K., Judicial Activism vis--vis Public Administration, Administrator, Vol.
XLII, April-June, p.167
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