What Judicial Activism Is
Chapter Thirty-Two
Syllabus topic 2, "Special Dimensions of Judicial Process in Constitutional Adjudications."
Pages 132 to 135 of 356
In one line
Judicial activism is a court going further than the minimum its case required, in order to make a right effective, and the argument about it is an argument about how much further is too far.
In the wording a student can write in an exam: judicial activism describes a judicial approach in which a court, in exercising its established jurisdiction, adopts an expansive view of its role: it reads rights broadly, relaxes procedural barriers to access, devises remedies not expressly provided, and is willing to direct the other organs of the State to act. It is contrasted with judicial restraint, in which a court confines itself to the narrowest ground that disposes of the case and defers to the legislature and the executive within their spheres.
Why the word needs defining before it can be used
Because it is used in at least four incompatible senses, and an answer that does not fix its sense cannot be marked.
As a description. A neutral account of how expansively a court has behaved. This is the sense used here.
As praise. A court protecting the powerless against an indifferent State.
As abuse. Judges legislating and governing without a mandate.
As a synonym for judicial review. Simply wrong. Review is a jurisdiction that exists whether or not it is exercised expansively.
A good answer states which sense it is using. MU's own questions supply both loaded senses: the January 2023 paper calls activism "a necessary weapon in a democracy to protect the rights of marginalized section of the society", and Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, has the Court warning judges not to behave like emperors.
Activism distinguished from what it is not
| Judicial review | Judicial activism | Judicial creativity | |
|---|---|---|---|
| What it is | a jurisdiction conferred by the Constitution | an approach to exercising jurisdiction | the making of new law in deciding |
| Present when | a court tests validity | a court goes beyond the minimum required | a court fills a gap |
| Can a restrained court do it | yes, this is its ordinary work | no, by definition | yes, minimally |
| Indian source | Articles 13, 32, 226, 227 | a description of practice | Module I |
Creativity and activism overlap and are not the same. A court may create a rule in a small commercial case without being activist; and a court may be activist procedurally, by relaxing standing, without creating any new rule of substantive law.
The marks of an activist decision
Five features, and an answer that lists them can classify any decision.
1. Expansive reading of a right. Reading livelihood, education, health, shelter, privacy and a clean environment into "life" in Article 21.
2. Relaxation of procedural barriers. Standing, limitation, the form of the proceeding. S.P. Gupta v. President of India, AIR 1982 SC 149, is the Indian source.
What Judicial Activism Is
3. Remedies not expressly provided. Compensation in public law, guidelines, continuing mandamus, commissioners.
4. Directions to the other organs. Requiring the State to do something rather than merely restraining it from acting unlawfully.
5. Deciding more than the case required. Laying down general propositions where the appeal could have been decided narrowly.
The Indian starting point
Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, has all five.
Facts. A newspaper report and a habeas corpus petition disclosed that large numbers of undertrial prisoners in Bihar had been in jail awaiting trial for periods far longer than the maximum sentence for the offences charged, many unrepresented and unaware of their rights.
Held. Speedy trial is of the essence of criminal justice and delay in trial by itself constitutes a denial of justice. Though not enumerated, speedy trial is implicit in the broad sweep of Article 21 read after Maneka Gandhi. Free legal services to a prisoner unable to afford counsel are an essential ingredient of the reasonable, fair and just procedure Article 21 requires. The undertrials before the Court were ordered released.
Why it matters here. A right was read in that the text does not contain; the proceeding was treated as covering a class rather than the petitioners; a remedy was granted that no statute provided; the State was directed to supply legal services; and the Court decided far more than the individual petitions required. That is activism by the definition, and it also happens to be one of the most obviously justified decisions in Indian law, which is why the word cannot be used as a term of abuse.
What makes a court activist, historically
A rights-bearing constitution with a remedy attached. Article 32.
Legislative and executive failure. Activism grows in the space the other organs leave. Vishaka happened because there was no statute; Hussainara happened because the criminal justice system was not working.
Relaxed standing. Once anybody may complain, more wrongs reach the court.
Institutional confidence, often after a loss of it. Indian activism dates from immediately after the Emergency, and the Court's own conduct in Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, is generally treated as part of the explanation: an institution that had failed conspicuously had reputation to rebuild.
The standing objections, stated here and answered later
Democratic. Unelected judges deciding what elected bodies should do.
Competence. Courts lack the information and the machinery.
Enforcement. Directions that are not carried out damage the court's authority.
Selectivity. The court acts where a petition happens to arrive, so its interventions are not distributed by need.
What Judicial Activism Is
These are taken up in [The Limits of Judicial Activism and the Charge of Overreach].
A worked example
A High Court hearing a petition about a single unlicensed hospital directs the State to frame regulations for all private hospitals, appoints a committee to draft them, and lists the matter for compliance every three months.
Is it activist? Yes, on four of the five marks: it goes beyond the case, it creates a remedy, it directs another organ, and it retains supervision.
Is it review? Only in part. Requiring the State to apply the existing licensing law is review. Requiring it to make new regulations is not.
Is it legitimate? That depends on whether there is a legal duty to regulate that the State has failed to discharge. If a statute imposes the duty, the direction enforces the law. If none does, the court is legislating, which Aravali Golf Club forbids.
The lesson. The label does not decide legitimacy. The question is always whether there was a legal obligation that the court was enforcing.
What beginners get wrong
"Activism means the court did something good." It is a description of extent, not of merit. ADM Jabalpur was an expansive reading of executive power.
"Activism is unconstitutional." Nothing in the Constitution forbids a court from reading a right broadly. What is forbidden is exceeding jurisdiction, which is a different thing.
"Every PIL is activism." A public interest petition that enforces an existing statutory duty is ordinary review with relaxed standing.
Quick revision
- Judicial activism: an expansive approach to exercising jurisdiction, reading rights broadly, relaxing procedure, devising remedies and directing other organs.
- Four senses in use: descriptive, laudatory, pejorative, and the mistaken equation with judicial review. Say which sense you mean.
- Distinguish review, which is a jurisdiction; creativity, which is making new law; and activism, which is an approach.
- Five marks: expansive right, relaxed procedure, new remedy, direction to another organ, deciding more than required.
- Hussainara Khatoon, AIR 1979 SC 1360, has all five and is plainly justified, which is why the word cannot be used as abuse.
- Causes: a rights constitution with Article 32, legislative and executive failure, relaxed standing, and institutional confidence rebuilt after the Emergency.
- Objections: democratic, competence, enforcement, selectivity.
Test yourself
1. Define judicial activism and distinguish it from judicial review and judicial creativity. Activism is an expansive approach to exercising jurisdiction: reading rights broadly, relaxing procedural barriers, devising remedies not expressly provided and directing other organs. Review is the jurisdiction itself, conferred by Articles 13, 32, 226 and 227, and exists whether exercised expansively or narrowly. Creativity is the making of new law in the course of deciding, which can occur in a small case without any activism.
What Judicial Activism Is
2. Give the five marks of an activist decision and apply them to one case. Expansive reading of a right, relaxation of procedure, a remedy not expressly provided, directions to another organ, and deciding more than the case required. Hussainara Khatoon has all five: speedy trial and free legal aid read into Article 21; the proceeding treated as covering a class; release ordered; the State directed to provide legal services; and general propositions laid down beyond the individual petitions.
3. Why is it a mistake to treat "activist" as a term of praise or of abuse? Because it describes extent rather than merit. Hussainara Khatoon was activist and is generally regarded as plainly right; ADM Jabalpur was an expansive reading of executive power and is generally regarded as plainly wrong. The evaluative question is always whether there was a legal obligation the court was enforcing, and the label does not answer it.
4. Name the historical conditions that produced Indian judicial activism. A constitution containing justiciable rights with Article 32 as a remedy that is itself a right; sustained legislative and executive failure leaving vacuums such as the absence of any law on sexual harassment; the relaxation of standing in S.P. Gupta, which let those vacuums reach the court; and the Court's need to rebuild its own standing after the Emergency and ADM Jabalpur.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.