An independent judiciary is a cornerstone of the Constitution of India. It ensures that the judiciary is free from any external influence, especially from the executive or legislature. One of the key powers of the judiciary is judicial review, which allows courts, particularly the Supreme Court, to examine the constitutionality of laws and actions of the government. In recent years, judicial activism has played a significant role in expanding the powers of the judiciary, particularly the Supreme Court, in areas where it has intervened beyond traditional judicial review.

The Concept of Judicial Review

Judicial review refers to the power of the judiciary to examine the actions of the executive and legislature to ensure they align with the Constitution. It acts as a check on legislative and executive powers, preventing any unconstitutional actions or laws.

• Example: The Kesavananda Bharati Case (1973) was a landmark judgment where the Supreme Court asserted the Basic Structure Doctrine, holding that the Parliament cannot alter the “basic structure” of the Constitution. This judgment gave judicial review a prominent role in maintaining constitutional integrity.

Judicial Activism and Its Impact

Judicial activism refers to the proactive role played by the judiciary, particularly the Supreme Court, in interpreting the Constitution and laws in a broader, sometimes innovative, way. Judicial activism has significantly increased the powers of the Supreme Court in India by allowing it to intervene in various areas of public policy, social justice, and fundamental rights.

1. Expansion of Fundamental Rights

The Supreme Court, through judicial activism, has expanded the scope of Fundamental Rights under Part III of the Constitution. It has interpreted these rights in ways that address contemporary issues, even if these were not explicitly mentioned in the Constitution.

• Example: In the Right to Privacy case (2017), the Supreme Court declared that the right to privacy is a fundamental right under the Constitution, even though it was not explicitly mentioned. This ruling expanded the scope of Article 21 (Right to Life and Personal Liberty), making it more comprehensive in protecting citizens’ privacy against state intrusion.

2. Public Interest Litigation (PIL)

One of the significant tools of judicial activism has been Public Interest Litigation (PIL), which allows any public-spirited citizen to approach the Supreme Court or High Courts for redressal of grievances related to public interest or human rights violations. This has enabled the Court to address issues affecting large sections of society that may have been overlooked by the government.

• Example: In the environmental case of the Ganga River pollution (2014), the Supreme Court, through PIL, took suo motu (on its own initiative) action against the pollution of the Ganga River and directed the government to take steps to clean and preserve it.

3. Expansion of Social Justice

Judicial activism has been a driving force in advancing social justice in India. The Supreme Court has often intervened to ensure that the marginalized sections of society, including women, Dalits, and tribals, are granted their rightful share of justice.

• Example: In the Vishaka case (1997), the Supreme Court laid down guidelines to prevent sexual harassment at the workplace, which eventually led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This was a clear example of judicial activism filling a legislative gap.

4. Government Accountability

Judicial activism has led to greater accountability for the executive and legislature. The judiciary has often called out the government for inaction or for passing unconstitutional laws, thereby enforcing its responsibility towards the public.

• Example: The 2G Spectrum case (2012) saw the Supreme Court quashing 122 telecom licenses granted by the government, ruling that they had been issued arbitrarily. This case demonstrated the judiciary holding the executive accountable for its actions.

Arguments for Judicial Activism

1. Protection of Fundamental Rights: Judicial activism has ensured that the government is held accountable for any infringement of the fundamental rights of citizens, especially in cases where legislative and executive branches fail to act.
2. Filling Gaps in Law: In the absence of clear laws on emerging issues, judicial activism has played a role in creating frameworks for new areas of law, such as environmental protection and women’s rights.
3. Social Justice and Equity: Through its proactive approach, the judiciary has safeguarded the rights of marginalized and vulnerable groups in society.

Arguments Against Judicial Activism

1. Encroachment on Legislative Powers: Critics argue that judicial activism sometimes encroaches upon the domain of the legislature, creating laws or policies rather than just interpreting them. This undermines the principle of separation of powers.
2. Judiciary Overreach: Some believe that judicial activism may lead to judicial overreach, where the judiciary steps into areas traditionally governed by the executive, such as policy making, leading to a conflict of authority.
3. Undemocratic Approach: Judicial activism can be seen as undemocratic, as it gives unelected judges the power to make decisions that affect millions, which should ideally be within the purview of elected representatives.