• Origin and Introduction:

  • Judicial activism originated in the USA, coined by Arthur Schlesinger Jr. in 1947.
  • It was introduced in India in the mid-1970s.
  • Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai laid the foundations.

• Meaning of Judicial Activism:

  • Proactive Role: Judiciary actively protects citizen rights and promotes justice.
  • Assertive Role: Judiciary compels the legislature and executive to fulfill constitutional duties.
  • Judicial Dynamism: Also known as judicial dynamism, which is the opposite of "judicial restraint."
  • Definitions:
    • Exercising judicial power to depart from strict adherence to precedent for progressive policies, often involving social engineering and intrusion into legislative and executive matters.
    • Protecting or expanding individual rights through decisions departing from precedent or opposing constitutional or legislative intent.
    • Law-making by judges through active interpretation of existing legislation to enhance its utility for social betterment (distinct from judicial pessimism).
    • Judges using personal views about public policy to guide decisions.
    • Evolving new principles, concepts, and relief to do justice or expand litigant standing.

• Aspects of Judicial Activism:

  • Directions issued to government authorities for protecting citizen rights and public interest (e.g., Public Interest Litigation).
  • Interpretation of fundamental rights, especially the right to equality (Article 14), freedom (Article 19), and life and personal liberty (Article 21).

• Judicial Review vs. Judicial Activism:

  Feature	Judicial Review	Judicial Activism
  Definition	Interpretation of law in light of constitutional parameters.	Moulding law to suit changing social and economic scenarios for meaningful constitutional ideals; judicial legislation; act of judicial legislation i.e., judges making positive law
  Scope	Concerned with the validity of existing laws.	Expands the jurisdictional limits of courts, especially through Public Interest Litigation (PIL).
  Law-Making	Upholding or invalidating laws based on constitutionality.	Participating in law-making policies, considering policy preferences.
  Emphasis	Constitutional parameters.	Protection and promotion of certain core rights, judicial review, expanding jurisdictional limits of the courts

• Justification of Judicial Activism (According to Dr. B.L. Wadehra):

  • Government Collapse: When the legislature and executive fail, eroding constitutional confidence.
  • Citizen Reliance: Citizens look to the judiciary for rights and freedoms.
  • Judicial Enthusiasm: Judges participate in social reforms, encouraging PIL and liberalizing 'Locus Standi'.
  • Legislative Vacuum: Courts address areas not legislated upon, meeting changing social needs.
  • Constitutional Provisions: The Constitution provides the judiciary with scope for active roles.

• Subhash Kashyap's Observations on When Judiciary May Intervene:

  • Legislature fails to discharge responsibilities.
  • 'Hung' legislature leads to a weak government focused on survival.
  • Those in power avoid hard decisions, referring issues to courts.
  • Legislature and executive fail to protect basic citizen rights.
  • Courts are misused by authoritarian governments.
  • Courts become victims of populism and publicity.

• Activators of Judicial Activism (Upendra Baxi's Typology):

  • Civil Rights Activists: Focus on civil and political rights.
  • People Rights Activists: Focus on social and economic rights within state repression.
  • Consumer Rights Groups: Raise consumer rights issues.
  • Bonded Labour Groups: Advocate for the annihilation of wage slavery.
  • Citizens for Environmental Action: Combat environmental degradation.
  • Citizen Groups against Large Irrigation Projects: Oppose mega irrigation projects.
  • Rights of Child Groups: Focus on child labour, literacy, and rights of children of sex workers.
  • Custodial Rights Groups: Include prisoners' rights groups and women under state custody.
  • Poverty Rights Groups: Litigate issues concerning draught and famine relief.
  • Indigenous People's Rights Groups: Agitate for issues of forest dwellers and constitutional rights.
  • Women's Rights Groups: Advocate for gender equality and against gender-based violence.
  • Bar-based Groups: Address autonomy and accountability of the judiciary.
  • Media Autonomy Groups: Focus on the autonomy of mass media.
  • Assorted Lawyer-Based Groups: Agitate for various causes.
  • Assorted Individual Petitioners: Freelance activist individuals.

• Apprehensions of Judicial Activism (Upendra Baxi's Typology of Fears):

  • Ideological Fears: Usurping powers of the legislature or other institutions?
  • Epistemic Fears: Adequate knowledge in economic, scientific matters?
  • Management Fears: Overloading the courts with litigation?
  • Legitimation Fears: Depleting symbolic authority through orders the executive bypasses?
  • Democratic Fears: Nurturing or depleting democracy?
  • Biographic Fears: Impact on future national affairs after superannuation?

• Judicial Activism vs. Judicial Restraint:

  Feature	Judicial Activism	Judicial Restraint
  Philosophy	Proactive judicial role.	Limited judicial role.
  Judge's Role	Use personal views to guide decisions.	Merely state what the law is.
  Law-Making	Participate in law-making.	Leave law-making to legislators and executives.
  US Context Assumptions	N/A	Court is undemocratic, deference to other branches, respect federalism etc.

• Supreme Court Observations (December 2007):

  • Called for judicial restraint.
  • Courts should not take over the functions of the legislature or executive.
  • Each organ of the state must respect the others' domain.
  • Judges cannot cross their limits in the name of activism.
  • Judges must know their limits and not try to run the government.
  • Judicial restraint is consistent with the balance of power among the three independent branches of the state.
  • Quoting Montesquieu, warned against the consequences of not maintaining separation of powers.
  • If the legislature or executive are not functioning properly it is for the people to correct the defects by voting and elections.
  • Judicial restraint recognizes the equality of the other two branches of the state and minimizes inter-branch interference.
  • When courts encroach on the legislative or administrative fields elected officials will conclude that the activities of judges should be closely monitored.