The Judiciary as an Engine of Social Change

Two: declaring law under article 141. A proposition stated as the ratio of a Supreme Court decision binds every court in India until the Supreme Court itself departs from it. In a system with no legislature willing to act, this is how a rule enters the law.

Three: complete justice under article 142. The article has been used to dissolve a marriage that had irretrievably broken down where no ground under the statute existed, to award compensation where no statute provided for it, and to make transitional arrangements after striking a law down.

Four: judicial review, including of amendments.

Facts. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973 by a Bench of thirteen judges. The head of the Edneer Mutt in Kerala challenged the Kerala Land Reforms Act as amended in 1969 under articles 25, 26 and 31, and the petition grew into a challenge to the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments, the first of which had reversed Golak Nath by providing that nothing in article 13 shall apply to an amendment made under article 368.

Held. The Twenty-fourth Amendment was valid and Parliament may amend any part of the Constitution including Part III, but the amending power does not extend to altering the basic structure or framework of the Constitution. The Twenty-ninth Amendment was upheld, article 31B being a constitutional device to place specified statutes beyond attack under Part III. The second part of section 3 of the Twenty-fifth Amendment, which had excluded judicial review of a law made to give effect to article 39(b) and (c), was struck down.

Why it matters here. It is the outer limit of the judicial capacity: a court holding that there are things an elected Parliament with a two-thirds majority cannot do. Whatever view is taken of it, no account of the Indian judiciary as an agent of change can leave it out.

The role of the judiciary in promoting social justice and social change

That is the University's own phrase, and it is worth answering in its own words. The role of the judiciary in social change in India has four parts, and they are the four capacities set out above: widening a right so that it reaches a harm nobody had named, declaring the resulting rule for the whole country, ordering what complete justice requires, and refusing to let an amendment destroy the framework.

Judicial creativity is the name usually given to the first of them. A court exercising it is not inventing a right out of nothing; it is reading an existing text, most often article 21, so that it covers a situation the drafters did not describe, and then explaining why the text bears that reading.

Social justice is the second half of MU's phrase, and it enters the judicial function in a particular way. The Directive Principles are unenforceable, so a court cannot order the State to secure them; but article 37 makes them fundamental in governance, and a court reads Part III in their light. That is the mechanism by which the role of judiciary in promoting social justice operates: not by enforcing Part IV but by letting Part IV colour Part III.

Pound, and the February 2026 question

The question quoted Pound's sentence about reconciling and harmonizing conflicting interests and asked about the judiciary's role in promoting social justice and social change.

The connection to make is this. Pound's programme was that a legal order should identify the claims people make, place them on the same plane, decide which to secure and how far, and build the machinery. An Indian court doing constitutional adjudication does exactly that, and it does it with a written scale Pound never had.

Two examples make the point. In a reservation case the court weighs the claim of the individual candidate against the claim of a group historically excluded, and article 16(1) and article 16(4) are the plane on which it does so. In an environmental case it weighs employment against health, and articles 21 and 48A are the plane.

And Pound's third task, making precepts effective, is where the Indian court has gone furthest. Continuing mandamus, monitored compliance and the appointment of commissioners are all attempts to make an order operate, and they are the subject of the next chapter.

The case against the judiciary as an engine

It is not elected. A judge who reads a new right into article 21 has made a policy choice that nobody voted on and that cannot be reversed at an election.

It cannot pay for what it orders. A direction to build schools, appoint officers or run rehabilitation is a direction to spend money that a court did not raise and cannot allocate between competing demands.

It acts on the case in front of it. A court sees one river, one quarry, one school. A legislature can see the sector.

It cannot supervise. Once the judgment is delivered the Court's attention moves on, and unless somebody returns with a contempt petition, nothing happens. This is the standing weakness of judicial social reform and it is why so many of the directions in this book were repeated in later orders.

And the separation of powers is a two-way street. A court that legislates invites a legislature to adjudicate, and both have happened in India.

A worked example

Suppose there is no law against a practice that plainly injures a group, and a petition is brought under article 32.

What the court can do. Read the injury into an existing fundamental right, most likely article 21 or article 14. Declare the resulting proposition, which binds every court under article 141. Issue directions under article 32(2) to the authorities concerned. Make consequential orders under article 142. Retain the matter and require compliance reports.

What the court cannot do. Create an offence, impose a tax, allocate a budget, or bind a future Parliament. And it cannot act at all unless somebody brings a case.

How this differs from Vishaka. In Vishaka v. State of Rajasthan the Court did all five things it could do, and expressly said its guidelines would bind until suitable legislation occupied the field. That last phrase is a court acknowledging every one of the limits in this section.

What this does NOT mean

It does not mean judges make law in the ordinary sense. The declaratory theory, that a judge finds the law rather than making it, is still the formal position, and article 141 speaks of law "declared".

It does not mean judicial change is faster than legislative change. It is faster to obtain and much slower to implement, which is the reverse of what students assume.

And it does not mean the criticism is a reason for the courts to stop. The Indian answer has been that a court acts where the other branches have not, and the honest version of the answer adds that it acts badly where they will not.

Quick revision

Four capacities: reading a right widely, especially article 21; declaring law under article 141; complete justice under article 142; and judicial review, including of amendments after Kesavananda Bharati. Articles 32 and 226 are the doors; article 226 is wider in scope but is not itself a fundamental right. Five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto. Kesavananda Bharati: thirteen judges, the Twenty-fourth Amendment valid, the basic structure limit, the second part of section 3 of the Twenty-fifth struck down. Five criticisms: unelected, cannot fund, sees one case, cannot supervise, and provokes retaliation.

Test yourself

1. Which articles give the judiciary its capacity to change the law, and what does each do? Article 141, the law declared by the Supreme Court binds all courts; article 142, orders for complete justice, enforceable throughout India; article 32, the right to move the Supreme Court for enforcement of fundamental rights, with power to issue writs; article 226, the High Court's wider power for fundamental rights and for any other purpose.

2. Name the five writs and state each in one line. Habeas corpus, produce the person and justify the detention. Mandamus, perform the duty the law imposes. Prohibition, stop exceeding jurisdiction before deciding. Certiorari, send up the record so the decision may be quashed. Quo warranto, by what authority do you hold this public office.

3. What did Kesavananda Bharati decide, and why is it in a chapter on social change? That Parliament may amend any part of the Constitution but not so as to destroy its basic structure, and that the exclusion of judicial review in the Twenty-fifth Amendment was invalid. It belongs here because it marks the outer limit of judicial capacity: a court holding that an elected Parliament cannot do certain things at all.

4. Give three criticisms of the judiciary as an agent of social change. It is not elected and its policy choices are not reversible at an election; it cannot raise or allocate the revenue its orders require; and it cannot supervise compliance once the judgment is delivered, so its directions depend on somebody returning to enforce them.

5. How does Pound's theory connect to the Indian judiciary? A court doing constitutional adjudication performs Pound's programme: it identifies competing claims, restates them on the same plane, decides which to secure and how far, and increasingly tries to build machinery to make the decision effective. The difference is that the Indian court has a written scale, Parts III and IV, which Pound's theory never supplied.