Judicial Activism

Notes

Judicial activism means the judiciary taking a proactive role in protecting rights, filling legislative or executive gaps and holding the government accountable. The term is credited to the US historian Arthur Schlesinger Jr. (1947). In India it is associated with Justices V.R. Krishna Iyer, P.N. Bhagwati, Y.V. Chandrachud and Kuldip Singh.

Tools of judicial activism

Public Interest Litigation and relaxed locus standi.
Expansive reading of Art. 21 (see Topic 32).
Basic structure doctrine; Art. 142 (complete justice).
Suo motu cognisance, continuing mandamus, and issuing guidelines where the law is silent.
Monitoring of investigations.

Examples

Vishaka (1997): guidelines on sexual harassment at the workplace until the law was made in 2013.
Vineet Narain (1997): directions on CBI's independence (Hawala case).
M.C. Mehta cases: Ganga pollution, Taj Trapezium, CNG for Delhi public transport.
Lily Thomas v Union of India (2013): convicted legislators are disqualified immediately; struck down Sec. 8(4) of the Representation of the People Act.
Prakash Singh (2006): police reforms directions.
Coal block allocations (2014): 214 coal block allocations cancelled; 2G (2012): licences cancelled.
Navtej Singh Johar (2018) and Puttaswamy (2017): expansion of rights.

Criticism: judicial overreach

Encroaches on the legislature and executive; violates the separation of powers; the judiciary is not elected and has no expertise in policy; creates unequal outcomes.
Examples cited: liquor shops ban along highways (2016), mandatory national anthem in cinemas (2016, later relaxed in 2018), striking down the NJAC.
Supreme Court itself has cautioned against "judicial adventurism" and "judicial terrorism".

Merits: protects the poor and marginalised, strengthens accountability, keeps the Constitution a living document.

Key Points

Activism: proactive judiciary; tools include PIL, Art. 21 and Art. 142.
Pioneers: Krishna Iyer and Bhagwati.
Key cases: Vishaka, Vineet Narain, Lily Thomas.
Overreach criticised as violating separation of powers.
Term coined by Arthur Schlesinger Jr.

MCQs

Q1. The term "judicial activism" is credited to: (a) Arthur Schlesinger Jr. (b) Dicey (c) Montesquieu (d) Justice Krishna Iyer Ans: (a). 1947.

Q2. Which case saw the Supreme Court laying down guidelines on sexual harassment at the workplace, in the absence of a law? (a) Vishaka v State of Rajasthan (b) Vineet Narain (c) M.C. Mehta (d) Prakash Singh Ans: (a). 1997.

Q3. Lily Thomas v Union of India (2013) dealt with: (a) Right to privacy (b) Immediate disqualification of convicted legislators (c) Anti-defection (d) Election symbols Ans: (b).