Judicial Activism

In one line

A court that relaxes who may come, treats a letter as a petition, and gives directions the statute does not provide, because the other organs have not acted.

In the wording a student can write in an exam: judicial activism describes the assumption by a court of a role beyond the traditional adjudication of a dispute between parties, by relaxing the requirement of standing, by simplifying procedure, and by fashioning remedies and directions not expressly provided by law. In India it rests on the words appropriate proceedings in article 32(1) and the word including in article 32(2), on the wide language of article 226, on article 141, which makes the law declared by the Supreme Court binding on all courts, and on article 142, which empowers the Court to pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it.

The constitutional footing

Article 32(1). The right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights is guaranteed. The Court read those words as not prescribing any form, which is the textual basis of the letter petition.

Article 32(2). The Court may issue directions or orders or writs, including the five writs, whichever may be appropriate. The word including means the power is not confined to the writs and their English technicalities, which is the textual basis of guidelines, compensation and continuing directions.

Article 226. Wider still, extending to the enforcement of Part III rights and for any other purpose.

Article 141. The law declared by the Supreme Court shall be binding on all courts within the territory of India, which is what converted the guidelines in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, into law.

Article 142. The Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. It is the widest power in the Constitution and the least defined.

Why it took this form in India

Four reasons, and an answer that gives them is explaining rather than describing.

The framers entrenched the remedy. Article 32 is itself a fundamental right, so the Court could not decline a petition on the ground that another remedy existed, and the pressure to make the remedy usable fell on the Court.

The Constitution promised what it did not make enforceable. Part IV commits the State to ends that article 37 makes unenforceable, so a gap was designed into the document, and article 21 became the route across it.

The Emergency destroyed the Court's standing and it had to be rebuilt. After ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, the institution that had failed the detenus needed to be seen doing something else, and the public interest jurisdiction begins immediately afterwards.