Judicial Activism

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“A Constitution states or ought to state not rules for passing hour but principles of expanding future- Benjamin N. Cardozo

Judicial Activism is today one of the most used constitutional terms. India practices constitutional democracy with the emphasis of constitutionalism. The article focuses on the study of judicial activism and development made by the Supreme Court of India in the recent years. It is the use of judicial power to articulate and enforce what is beneficial for the society and people at large. Supreme Court of India despite with the constitutional limits and restrictions has come up with flying colours as a champion of justice in the real sense. The seven letter word ‘JUSTICE’ has come up with new element with advent of Judicial Activism in India and the Judicial Activism in India has touched almost every aspect of life  to do justice to what has been prescribed by law in black and white.


At the very outset, it can be stated that there is as such no specific definition of Judicial Activism. However there is a widely accepted notion that the words Judicial Activism deals with the political role played by the judiciary, like the other two branches i.e. Legislature and executive.Upendra Baxi defined Judicial Activism the way of exercising judicial power which seeks fundamental re-codification of power relations among the dominant institutions of the State manned by the members of the ruling class. The expression judicial activism and judicial restraint are used from the angle of the personal or professional view of the right role of the court. In United States the concept of judicial activism has often been used in synonym with “Judicial Absolutism, Judicial Supremacy, Judicial Anarchy and Judicial Imperialism”. According to them activism means the propensity of federal judges mainly but not always the Supreme Court, to intervene in the governing process as to substitute their judgement for that of federal and state political officers.


Since, with the establishment of courts as the means for administering the concept of Justice, law is made from the two sources. The first and prime source is the legislature and second is the judge made law which is also known as the judicial interpretation of already existing legislations. Even the constitution of India also recognises these two modes of law making. Article 141 of the Indian Constitution lays down that the law declared by the Supreme Court of India establishes the law of the State.   It thus codifies what was hitherto an unmodified convention and this process of making law by judges is what we called Judicial Activism.

The Supreme Court of India started its journey as technocratic courts in the year 1950’s but slowly started acquiring more powers through the interpretation of the Indian Constitution. The roots of the judicial activism are to be seen in the Supreme Court’s early assertion regarding the nature of judicial review. In A.K. Gopalan v. State of Madras the Supreme Court in this particular case conceived its role in a narrow manner and asserted that the power of Judicial review was inherent in the very nature of the written constitution. Afterwards the role of Supreme Court as a Technocratic Court slowly changed to the Activist Court. In another case of Sakal Newspaper Private Limited v. Union of India the Supreme Court held that the price and page schedule that laid down how much a newspaper could charge for a number of pages was being violative of freedom of press. The court in this particular case conceived the doctrine of giving preferred position to the freedom of speech and expression embodied under Article 19(1) (a) of the Indian Constitution. It was also further observed by the Supreme Court that a newspaper was not only a business; it was a vehicle of thought and information and therefore could be regulated like any other business.

In the case of Balaji v. State of Mysore, the Supreme Court held that while the backward classes are entitled to positive and protective discrimination and such protective discrimination should not negate the right of equality and equal protection of law guaranteed under Article 14 of the Indian Constitution.

In the early of the Supreme Court, the decisions of the Supreme Court was made to overcome through the device of constitutional amendments and with this the debate on the scope of the Parliament power to amend the Constitution also started. The same question was raised before the court in the case of Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan , whether Parliament of India could use its constituent power under Article 368 of the Indian Constitution so as to take away the fundamental rights guaranteed to the citizens of India under Part III of the Indian Constitution. The court unanimously held that the constituent power was not subjected to any limitation. In the year there was a shift in the ideology of the court and in the case of L.C Golaknath v. State of Punjab, it was held by the Supreme Court that Parliament could not amend the Constitution so as to take away or abridge the Fundamental Right.