Judicial Activism & Indian Democracy: Civil Services Mentor Magazine October 2012

Judicial Activism and Indian Democracy

Democracy is a form of government where people surrender some of their rights to a small elite body who are elected by people to rule over themselves. This elite body or the public representatives make law for the betterment of people. Once elected the public representatives remain all powerful till the end of the term by constitutional provision or otherwise because the constitution does not provide “call back” power to the people. The assumed principle is that  these public representatives should make laws for the benefit of the people. The loophole in our administration is that it is not very transparent and popular participation is bare minimum. The prescribed methods of control on government have been largely unsuccessful. So in such a situation a vacuum is created in governance i.e. who shall see the validity of a law.

The judiciary as such and by principle cannot act unless an aggrieved party does not knock its door. Hence this vacuum is substantial. As per the theory of “Power vacuum filling” some organ has to extend its influence and it is only natural for judiciary to extend its influence in the sphere. Many argue that it is against the principle of democracy. May be it is true. But there is a widening gap between the principle of democracy and the essence of democracy. Sometimes the hegemonic growth of the form and procedure of democracy become so vast that they make the spirit of democracy in danger. Now it is important to decide what is more important the procedure and principles of democracy like the legislative supremacy or the spirit of democracy i.e. welfare of people. The principle and procedure may be a means to an end but the end is always the spirit of democracy. So if means are abridged to attain the ends then democracy will be more successful than anything else. Judiciary under the veil of activism serves as a watch dog for preserving this basic spirit of democracy.


Judicial activism, like many catchwords, has acquired so many different meanings as to obscure more than it reveals. But at the same time it cannot be discarded as an intellectual void for the vagueness of the definition of the word for at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to  the spheres of executive and the legislative. Judicial activism simply means a pro-active judiciary which does no limit itself to the interpretation of law only but also sees if the law affects people adversely. The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.

Our Constitution & Judiciary

When India’s founding fathers wrote the Constitution, they created three arms — Parliament, Executive and the Judiciary — of the state that together were to be the keepers of the ideals of the nation as enshrined in the Constitution. Over the past several months, however, the Parliament has become dysfunctional, the Executive has abdicated its duties and the Judiciary is cracking the whip. Many think that it is cracking the whip a bit too much. I don’t think so. An active judiciary is one that takes its task of defending the fundamental rights of the people and their liberties against the onslaught of the state, earnestly. As far as judges are concerned, it is a matter of mindset. One judge could say that policy formulation is the job of the Executive and Judiciary does not need to intervene while another could believe that even in policy formulation, the Judiciary would need to step in to guard fundamental rights. The occasion for this often arises when the Executive fails to discharge its statutory, constitutional obligations. As a result of this failure, the fundamental rights of the people are violated.

The Indian judiciary has been constitutionally vested with the power of review to keep the Executive and Legislature within constitutional boundaries. The Judiciary can strike down any law that is beyond Parliament’s legislative competence or is violative of the Constitution. Similarly, it can strike down any Executive action, if there is any patent illegality or arbitrariness to it. A Supreme Court judgment becomes the law of the land. While Articles 13, 21, 32, 226 and 227 encompass this power, Article 142 hands a unique, extraordinary power to our Supreme Court to do ‘complete justice’ in any matter before it. This power has often been wielded unpredictably. It granted a divorce to a Hindu couple on the ground of irretrievable breakdown of marriage, even though no such ground exists under the Hindu Marriage Act.

To understand the concept of the judicial activism two theories have been expounded. The first theory “Power vacuum filling” theory says if in a system there is a vacuum because of the lack of any particular organ or the inaction of it, then other organs extend their influence to the vacuum created. Nature does not allow the vacuum to remain as such. In the government in certain areas vacuum is created due to the lack of interest in executive or legislative or simply due to the inaction and indifference in their part. This vacuum is filled by a dynamic judiciary. This is called the judicial activism. The other theory of “social want” says that people want something which is neither provided by the executive or the legislative. So judiciary took it upon itself to provide the wants of the people. So it became proactive and this proactiveness is called as judicial activism.

The doctrine of separation of powers is embedded in our constitutional scheme. Explaining the need for separation of powers, Montesquieu wrote: “There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator. If it were not separated from executive power, the judge would have the strength of an oppressor…”