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Judicial activism is a process by which the judiciary formulates rules, regulations and policies that has an essence of personal views of the judges, they are as effective as that of laws enacted by the legislature.This article aims at analysing the cause and evolution of judicial activism inthe Indian legal system.


Judicial activism headed up in India due to the aggressive effects of the emergency period declared by Smt. Indira Gandhi between 1975 to 1977. Excessive delegation of authority, forced sterilization, violation of natural justice, denial of access to civil liberties, postponement of elections, massive numbers of protestors and strike leaders being arrested and placed under preventive detention were some of the main reasons which demanded the commencement of judicial activism in India.


As the term indicates judicial activism is a process which evolved through judicial pronouncements.Prior to the emergency period the Courts in India made a strict application of laws without interpretation but subsequent to the expiry of emergency period the judiciary used judicial activism as a tool to interpret the laws and confer the citizens with civil liberties.

The first successive step was taken by the introduction of Public Interest Litigation (PIL). Before the introduction of PIL’s only the aggrieved party should approach the Court seeking justice, but by the advent of PIL’s a person acting in public interest was enabled to represent the aggrieved party in the Court of lawwhereby monetary hindrances in the path of access to justice was removed. Though the term was coined in the case of S.P.Gupta v. Union of India[1], it was justice P.N. Bagawathy who pioneered the concept of PIL’s by interpreting the term “free legal aid” under Article 39A in his landmark judgment of Hussainara Khatoon v. Home Secretary, State of Bihar[2]. Moving a step ahead the SC converted a letter addressed to a judge as a PIL in the case of D.K. Basu v. State of West Bengal.[3]

At times, the smallest phrase has the widest interpretation due to judicial activism. Article 21 is one of the widely interpreted provisions of the Constitution in which the term “life” denotes not just mere animal existence but includes all those which are essential for the dignified existence of an individual such as right to livelihood[4], health care[5], pollution free environment[6], privacy[7], dignified death[8], education[9], speedy trial[10], sexual orientation[11]etc. Also, in the case of Anuradha Bashin v. Union of India[12], the Apex Court recognised right to access to internet as a part of right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

Similarly, under Articles 32 and 226 of the Constitution a writ petition can be filled only against the State. Hence, the term “other authorities” under Article 12 of the Constitution which defines the term “State” was widely interpreted to include all those authorities who perform public function. In the case of Janet Jeyapaul v. SRM University[13] the Supreme Court included a private University within the term other authorities holding that, the University performed a public function by way of imparting education and hence the respondent was accountable for fundamental rights violation.

Judicial activism has also led to complicated questions of law. In the case of Suchita Srivastava v. Chandigarh Administration[14] the Supreme Court recognised reproductive choices of women as an integral part of the term “personal liberty” under Article 21, however the Court also stated that, there exist a “compelling interest on the part of the State to protect the life of a prospective child”. Hence there arises a question of whether a foetus enjoys right to life under the Constitution or not?


As a result of judicial activism numerousdoctrines and tests have evolved in the Indian judicial system.

  1. The doctrine of basic structure which keeps certain features of the Constitution beyond the reach of amending powers of the legislature was given birth by the Supreme Court in the case of KesavanandaBarathi v. State of Kerala.[15]
  2. The test of reasonability. From a simple reading of Article 14 of the Constitution we understand that it promotes equality among equals and stays silent about reasonable classification and the presence of intelligible differentia. But, whenever a case of violation of Article 14 is reported the Court applies the reasonability test and looks for the presence of intelligible differentia ie. a valid ground upon which the disputed classification may be justified.[16]
  3. The test of essential religious practice. Whenever a religious practice or custom is questioned for its validity, the judiciary applies the essentiality test to determine if that practice or custom is protected under Article 25 of the Constitution or not. The test lays down three conditions (1) the practice should be an integral part of the religion (2) the foundation of the religion is vested on the impugned practice (3) without the practice the religion will be no religion. It is only such core essential practices which are given protection under Article 25.[17]
  4. The constitutional morality test. While public morality is recognised in the Constitution, the judiciary brought in the test of Constitutional morality to review the validity of laws challenged before it. The test lays down the condition of complete adherence to the principles enshrined in the Constitution. The Delhi High Court in the case of Naz foundation v. Govt of NCT Delhi[18] held that, “If there is any type of "morality" that can pass the test of compelling state interest, it must be"constitutional" morality and not public morality”.
  5. Under criminal jurisprudence to assess the culpability of an accused for an offence of murder by administering poison, the conditions laid down by the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra[19]has to be fulfilled. The test lays down four conditions, “(1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased”.


By invoking the powers under Article 142 of the Constitution, the Supreme Court in order to “do complete justice” in a matter pending before it issued guidelines whenever necessary stating that the “guidelines will prevail unless and until a legislation is passed in thatregard”. Some of the landmark judgments are as follows:

  1. In the case of Vishaka v. State of Rajasthan[20], the Supreme Court laid down guidelines for sexual harassment at workplace.
  2. Passive euthanasia was legalised and guidelines for the same was issued by the Supreme Court in the case of Aruna Ramachandra Shaunbaugh v. Union of India[21].
  3. The Supreme Court in order to prevent eve-teasing issued guidelines for the same in the case of Inspecter General of Police v. S.Samuthiram[22]
  4. Recognising sexual orientation as a part of Article 21, the Supreme Court in the case of National Legal Services Authority v. Union of India[23] laid down certain guidelines to protect the rights of the members of transgender community.
  5. Recognising right to health care as an inextricable facet of Article 21 the Supreme Court issued guidelines to deal with emergency cases in the case of Paramananda Katara v. Union of India.[24]


Although judicial activism has widened the scope of judiciary, it is still criticised for violating the doctrine of separation of powers.However, it is to be remembered thatas the Country develops the society changes and its requirements keep changing. What was considered moral decades ago might be immoral at the present and vice versa. While the words in the legislation remain the same it is the judicial interpretation that has to take place from time to time in order to accommodate the changing circumstances of the society.

  • [1](1982) 2 S.C.R. 365.
  • [2]1979 AIR 1369.
  • [3](1997) 1 SCC 416.
  • [4]Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180.
  • [5]Paramanand Katara v. Union of India, AIR 1989 SC 2039.
  • [6]M. C. Mehta vs. Union of India, 1987 SCR (I) 819.
  • [7]Justice K.S. Puttaswamy v. Union of India,AIR SC 4161 (2017).
  • [8]Aruna Ramachandra Shaunbaugh v. Union of India, AIR SC 1290 (2011).
  • [9]Unni Krishnan v. State of Andhra Pradesh, 1993 AIR 2178.
  • [10]Supra at 2.
  • [11]National Legal Services Authority v. Union of India,WRIT PETITION (CIVIL) NO.400 OF 2012.
  • [12]WRIT PETITION (CIVIL) NO. 1031OF2019.
  • [13]CIVIL APPEAL No. 14553 OF 2015.
  • [14]9 SCC 1 (2009).
  • [15]AIR 1973 SC 1461.
  • [16]Budhan Choudhry v. State of Bihar, AIR SC 191 (1955).
  • [17]Indian Young Lawyers Assn. v. Union of India (2018) 13 SCALE 75.
  • [18]WP(C) No.7455/2001.
  • [19]1984 AIR 1622.
  • [20]AIR 1997 SC 879.
  • [21]Supra at 8.
  • [22]CIVIL APPEAL NO. 8513 OF 2012.
  • [23]Supra at 11.
  • [24]Supra at 5.

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