When Judges Shape Policy: Judicial Activism, PIL, and the Expanding Role of India's Courts

Judicial Activism

Judicial activism as a concept first emerged and took shape in the United States. The term itself was coined in 1947 by Arthur Schlesinger Jr., an American historian, in his article published in Fortune magazine titled "The Supreme Court: 1947".

In India, the doctrine gained ground in the mid-1970s. Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai are credited with laying the foundations of judicial activism in the Indian constitutional framework.

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At its core, judicial activism refers to the proactive and assertive role played by the judiciary in:

• Protecting the fundamental and constitutional rights of citizens
• Promoting justice in society
• Compelling the legislature and the executive to perform their constitutional obligations

It is also called "judicial dynamism" — signifying a living, evolving interpretation of law responsive to social realities.

Key definitions:

1. Judicial activism is a mode of exercising judicial power that leads judges away from strict adherence to precedent, toward progressive social policy outcomes — sometimes involving a degree of intrusion into legislative and executive domains.
2. It is the practice of protecting or expanding individual rights through rulings that depart from established precedent or go beyond what the constitution or legislature explicitly intended.

Judicial Activism vs. Judicial Restraint:

Judicial activism is the antithesis of judicial restraint, which calls for courts to exercise self-control and stay within the conventional limits of adjudication.

Relationship with PIL: Judicial activism is intimately connected with Public Interest Litigation (PIL). PIL is widely regarded as the most prominent manifestation of judicial activism. The liberalisation of locus standi — allowing any public-spirited citizen to approach the court on behalf of those unable to do so — is the direct product of an activist judiciary.

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According to Dr. B.L. Wadehra

1. Collapse of responsible governance — When the legislature and executive fail their constitutional duties, public faith in democracy erodes, compelling the judiciary to fill the vacuum.
2. Citizen expectations — People naturally turn to courts for protection of rights when other institutions disappoint them, creating enormous pressure on the judiciary to act.
3. Judicial enthusiasm — Judges personally wish to participate in social reform processes of a changing society. This impulse encourages PIL and the relaxation of procedural barriers.
4. Legislative vacuum — Certain areas of social life remain unregulated by legislation. Courts feel compelled to step in through judicial legislation to address emerging social needs.
5. Constitutional scope — The Constitution of India itself contains provisions that give the judiciary adequate room to play an active role in governance and rights enforcement.

According to Subhash Kashyap

Judicial overreach into the legislative and executive domain may become unavoidable when:

1. The legislature fails to meet its responsibilities to the public.
2. A hung legislature produces a weak, survival-focused government incapable of making difficult decisions.
3. Those in power deliberately refer political questions to courts to delay decision-making or transfer the political cost of hard choices to the judiciary.
4. The legislature and executive fail to protect citizens' basic rights — to a decent life, clean surroundings, and just administration.
5. Courts are misused by an authoritarian government for partisan ends (as was attempted during the Emergency period).
6. Judges themselves, wittingly or unwittingly, fall prey to the temptation of populism and media attention.

Trends Reflecting Judicial Activism (Dr. Vandana)

• Expansion of hearing rights in administrative processes
• Excessive delegation of powers without adequate limitations
• Broadened judicial control over discretionary executive powers
• Expansion of judicial review over administration
• Promotion of open and transparent government
• Indiscriminate invocation of contempt power
• Exercising jurisdiction even where it may not strictly exist
• Over-extending interpretive standards to achieve socio-economic goals
• Passing orders that are inherently unworkable

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Jurist Upendra Baxi identified the following categories of social and human rights actors who have driven judicial activism in India:

1. Civil Rights Activists — Focus on civil and political rights.
2. People Rights Activists — Address social and economic rights amid state repression of mass movements.
3. Consumer Rights Groups — Push for accountability of political and economic systems toward consumers.
4. Bonded Labour Groups — Seek judicial intervention to eliminate wage slavery.
5. Environmental Action Citizens — Mobilise activist courts to combat pollution and ecological degradation.
6. Anti-Large Dam Groups — Challenge mega irrigation projects and their displacement effects.
7. Rights of Child Groups — Focus on child labour, right to literacy, juvenile custody, and children of sex workers.
8. Custodial Rights Groups — Act on behalf of prisoners, women in state custody, and those under preventive detention.
9. Poverty Rights Groups — Litigate issues of famine relief, drought relief, and urban poverty.
10. Indigenous People's Rights Groups — Advocate for forest dwellers and communities under the Fifth and Sixth Schedules.
11. Women's Rights Groups — Agitate on gender equality, domestic violence, rape, dowry murders, and harassment.
12. Bar-based Groups — Concerned with judicial autonomy and accountability.
13. Media Autonomy Groups — Focus on the freedom and accountability of the press and state-owned media.
14. Assorted Lawyer-Based Groups — Influential lawyer collectives agitating for diverse causes.
15. Individual Petitioners — Freelance activist citizens who file PILs independently.

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Upendra Baxi also catalogued the fears generated by judicial activism — which he described as designed to induce a "nervous rationality" even among conscientious judges:

1. Ideological fears — Is the judiciary usurping powers that properly belong to the legislature, executive, or civil society institutions?
2. Epistemic fears — Do judges possess sufficient expertise in complex economic, scientific, or technical domains where they are increasingly passing orders?
3. Management fears — Does taking on PIL work worsen the already severe backlog of cases in Indian courts?
4. Legitimation fears — Do orders that the executive routinely ignores erode public faith in the judiciary itself?
5. Democratic fears — Does a flood of PILs nurture or actually undermine democratic processes and political accountability?
6. Biographic fears — Judges may calculate the personal reputational consequences of over-activism after superannuation.

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Judicial restraint holds that courts should strictly confine themselves to interpreting law as it exists. Judges must not allow personal policy preferences to colour their decisions. The "original intent" of constitutional framers should guide interpretation.

Six Assumptions of Judicial Restraint (USA Context)

1. Courts are inherently undemocratic — non-elected and non-responsive to public will — and should defer to elected branches.
2. The power of judicial review itself has questionable constitutional origins and should not be overextended.
3. The doctrine of separation of powers limits judicial intervention in legislative and executive domains.
4. Federalism demands judicial deference to state governments and officials.
5. Pragmatic consideration: courts depend on the legislature for jurisdiction and resources, and on public legitimacy — overreach risks both.
6. Courts, as inheritors of the Anglo-American legal tradition, should not descend into the political arena; law is reason and judgment, not power and influence.

Note: All these assumptions (except the second on judicial review) are applicable to the Indian context as well.

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In a landmark judgment, the Supreme Court called for judicial restraint and issued the following notable observations:

• Judges who perform executive or legislative functions in the name of activism are acting unconstitutionally.
• Judges must know their limits and not attempt to govern. Modesty and humility are required — not imperial attitudes.
• Citing Montesquieu's The Spirit of Laws, the court noted that failure to maintain separation of powers has serious consequences — a warning especially relevant for Indian judiciary given criticism of overreach.
• Judicial activism must not become judicial adventurism. Adjudication must occur within historically validated restraints, with conscious minimisation of judges' personal preferences.
• Courts must not embarrass administrative authorities who possess domain expertise that courts lack.
• The argument that other organs are dysfunctional cannot justify judicial takeover — courts themselves have cases pending for half a century.
• The remedy for legislative or executive failure lies with voters and democratic processes, not judicial substitution.
• Judiciary lacks the expertise and resources to perform legislative or executive functions; doing so would also disturb the constitutional balance of power.
• Judicial restraint protects judicial independence: when courts encroach on other domains, legislators and voters demand closer scrutiny of judicial conduct, ultimately weakening the institution.

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• Know the origin (USA, 1947, Schlesinger) and India's pioneers (Krishna Iyer, Bhagwati, Chinnappa Reddy, Desai).
• Distinguish judicial activism from judicial restraint clearly — the contrast is frequently tested.
• PIL is the most prominent form of judicial activism — understand the link.
• Know the justifications (Wadehra, Kashyap) and apprehensions (Baxi's fear typology).
• Know Baxi's 15 categories of activators — often tested in statement-based MCQs.
• The six assumptions of judicial restraint (especially which one doesn't apply in India) is an important distinction.
• The 2007 Supreme Court judgment is a key factual anchor — remember its major observations.
• Locus Standi liberalisation is a product of judicial activism — important constitutional concept.