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  • Sahil Singh

From Passive Judiciary to Active Arbiter: The Evolution of Judicial Activism in India

Sahil Singh

2nd year, BBA LLB (Hons.) 

Alliance University 

From Passive Judiciary to Active Arbiter: The Evolution of Judicial Activism in India


Judicial activism refers to the active role of the judiciary plays in safeguarding the rights of the citizens and maintaining the country's legal and constitutional framework. The concept of judicial activism emerged for the first time in the United States in 1947. India has seen it since the Emergency time. A powerful weapon that a skilled soldier knows just when and how to employ is judicial activism. The delicate balance of power between the judiciary and legislative branch has frequently faced challenges, especially when legislatures pass laws that appear to override or contradict the court decisions. Here, Judicial activism plays an important role in providing proper checks and balances to the system.

By granting access to the court for groups as well as individuals, it has democratised the legal system. The approach of judicial activism is dynamic to uphold the check-and-balance doctrine. Genesis of judicial activism evolved in the US in the year 1803 “Marbury v/s

Madison[i]” case US supreme court said that “it is emphatically the province and duty of the judicial department to say what the law is”.  Article 142[ii] of the Indian constitution allows the Supreme Court to pass decrees or orders necessary for justice in any pending matter. These decrees or orders are enforceable throughout India in a manner prescribed by Parliament or the President and provide the scope of Judicial Activism in India.

Owing to the efforts of judges Justice V R Krishna Ayer and Justice P N Bhagwati, judicial activism is viewed as a success in expanding access to justice and providing relief to underprivileged communities.


Judge Mehmood of the Allahabad High Court sowed the seeds of judicial activism in India in 1893 with his dissenting ruling. This marks the commencement of judicial activism in India. There was an undertrial in the case, and they were not able to afford legal counsel. He challenged the rule in his dissenting opinion, saying that appeals should be denied only if the appellant cannot afford to have the record translated and printed in English. This was effectively activism on behalf of the critically injured undertrials. J. Mahmood was made to quit for employing these strategies in court, even though it didn't sit well with the English judges currently sitting on the bench.

Additionally, under the tenure of Mrs. Indira Gandhi as Prime Minister and Union Minister Mohan Kumaramangalam, a well-known lawyer and legal luminary, the idea of judicial activism in India gained significant popularity. The late Mrs. Gandhi worked to implement her favourite slogan, "Garibi Hatao" (remove poverty), by nationalising the 14 major banks and doing away with the privy purses and privileges that had been granted to the former rajas and princes of the princely States of pre-independence India. Her goal was to better serve the interests of the poorer sections of society. But the conservative judges reversed her efforts, taking it personally.[iii] 

In response, Mrs. Gandhi criticized the Supreme Court of India for overreaching itself in rulings on bank nationalisation and Privy Purse abolition. She believed conservative and senior justices were selected for Chief Justice of India post on Kumaramangalam's recommendation. Three senior justices resigned in response to A.N. Ray's nomination, establishing the doctrine of judicial activism, which emerged from disputes between the judiciary and executive branch. The dissenting judge and fourth senior justice resigned in order of seniority.


The Supreme Court of India was initially technical in nature, but as a result of its liberal legal interpretation, it progressively gained power and reputation. Beginning with judicial review in A.K. Gopalan v. Madras[iv], it was argued that this authority was inherent to written constitutions. Article 13 states that no law may be passed by the state that restricts or eliminates a basic right. Referring to this provision, the Supreme Court stated in its opinion that it seems prudent to include Articles 13(1)5 and 13(2)[v] in the Constitution. To ascertain if detention without trial violated Articles 14[vi], 19[vii], 21[viii], and 22[ix] of the fundamental rights declaration, a writ petition was filed. The written Constitution, according to the Supreme Court, confers the power of judicial review. Notwithstanding the challenge's failure, it did spark a novel legal movement that was evident in the years that followed.

In Sakal Newspapers Pvt. Ltd. v. Union of India[x] (1962), the government attempted to enforce the Newspaper Act of 1956 and order of 1960 by controlling the number of pages in proportion to the newspaper's price. The Supreme Court ruled that newspapers could not be subject to the same laws as other businesses since they offered a platform for the exchange of ideas and information. This decision strengthened the protections for free speech provided by Article 19(1)(a) of the Constitution.

The Supreme Court reasoned that economic backwardness was the primary source of social backwardness in the 1963 decision of M.R. Balaji v. State of Mysore[xi]. The Court decided that caste should not be used to measure backwardness and made a distinction between caste and class. Furthermore, the decision was made that the reserved category's share of the total should not be higher than 50%. It was determined that compliance with Article 14 and the subsets of Articles 15[xii] and 16[xiii] was required. In the 1964 decision of Chitralekha v. State of Mysore[xiv], the Court placed comparable restrictions on the reservation.

Prospective overruling is a concept that was first propounded by the American legal system. It declares that a judgement rendered in a particular case will only have an impact on the future and won't go back and influence previous decisions. In the Golaknath v. State of Punjab[xv] (1971) case, which concerned the constitutionality of the 17th Amendment to the Constitution, the Supreme Court of India established a concept of "prospective overruling". Further, the court held that Parliament lacked the power to amend Part III of the Constitution or to restrict any of the fundamental rights.

The Supreme Court delivered a decision in the 1973 case of Keshavananda Bharti v. State of Kerala[xvi] that is regarded as a turning point in Indian constitutional law. The Court introduced the concept of "basic structure" when addressing the scope of the constitutional amendment making power provided by Article 368 by the Parliament. In a 7–6 decision, a bench of 13 judges held that although Parliament has the power to amend the constitution but without hampering the basic structure of the Indian Constitution. 

In the case of ADM Jabalpur v. Shivkant Shukla[xvii] (1976), the Supreme Court examined Article 21 and rendered the most controversial ruling concerning judicial activism. The majority of the Bench deliberating on the ADM Jabalpur case maintained that in emergency circumstances, such the ones that prevailed from 1975 to 1977, a legal process might be formed, after which even human life could be taken.  Justice Chandrachud came under criticism for writing a decision that supported the administration, yet the legal theory he presented was an excellent instance of judicial activism. According to Justice Chandrachud's interpretation of Article 21, laws demand ratification in order to preserve the nation's sovereignty when it is endangered by either internal or external aggression[xviii]. This case has been overruled by Justice K.S. Puttaswamy (Retd.) v. Union of India[xix].

Maneka Gandhi claimed in Maneka Gandhi v. Union of India[xx] (1978) that her passport's seizure was an infringement on her right to personal freedom. The court decided that passports

were unlawfully seized. The A.K. Gopalan case ruling was overturned by the Supreme Court, ensuring the legitimacy of personal liberty under Articles 14, and 21. 

The government attempted to overturn the Kesavananda Bharti ruling and assume unlimited authority to change the Constitution to its liking, but the Supreme Court rejected this move in Minerva Mills v. Union of India[xxi] (1980). Consequently, the Court determined that judicial review is a fundamental component of the legal system, and that Parliament is not allowed to expand the previously granted restricted powers.

Furthermore, in a number of rulings, such as Hussainara Khatoon v. Home Secretary, State of Bihar[xxii] (1979) and Khatri v. the State of Bihar[xxiii] (1981), Justice P.N. Bhagwati—India's father of judicial activism—solidified the concept. This cleared the path for courts to employ it as a tool for ensuring full justice. 


In the Indian legal system, the concept of judicial activism has developed in response to the changing socioeconomic dynamics and constitutional disputes. Judicial activism has played a pivotal role in advancing justice, defending fundamental rights and solving social problems. But it also raises concerns regarding judicial overreach and its potential to undermine the system of checks and balances. Going forward, maintaining the effectiveness and credibility of the judiciary within India's democratic system would require finding a balance between judicial action and institutional restraint.


[i] Marbury v/s Madison 5 U.S. (1 Cranch) 137 (1803)

[ii] INDIA CONST. art. 142

[iii] Ravi P. Bhatia, EVOLUTION OF JUDICIAL ACTIVISM IN INDIA, Vol. 45, No. 2 (April-June 2003), Journal of    the Indian Law Institute, Pages 262-274

[iv] A.K. Gopalan v. State of Madras, AIR 1950 SC 27,54 5 INDIA CONST. art. 13, cl. 1

[v] INDIA CONST. art. 13, cl. 2.

[vi] INDIA CONST. art. 14

[vii] INDIA CONST. art. 19

[viii] INDIA CONST. art. 21

[ix] INDIA CONST. art. 22

[x] Sakal Newspapers Pvt. Ltd. v. Union of India, 1962 AIR 305

[xi] M.R. Balaji v. State of Mysore, 1963 AIR 649

[xii] INDIA CONST. art. 15

[xiii] INDIA CONST. art. 16

[xiv] Chitralekha v. State of Mysore ,1964 AIR 1823

[xv] Golaknath v. State of Punjab, 1967 AIR 1643

[xvi] Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461

[xvii] ADM Jabalpur v. Shivkant Shukla, 1976 AIR 1207

[xviii] M. M. Semwal, Sunil Khosla, JUDICIAL ACTIVISM, Vol. 69, No. 1 (JAN. - MAR. 2008), The Indian Journal of Political Science, Pages 113-126.

[xix] Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161

[xx] Maneka Gandhi v. Union of India, 1978 AIR 597

[xxi] Minerva Mills v. Union of India, 1980 AIR 1789

[xxii] Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 AIR 1369

[xxiii] Khatri v. the State of Bihar, 1981 SCR (2) 408

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