The Conditions That Produced It in India

In one line

Indian judicial activism arose from a collapse of the Court's own standing during the Emergency, a constitutional and political correction in and after 1977, and a failure of the other institutions to deliver what the Constitution promised, and the three causes together explain both its timing and its direction.

Cause one: the Emergency, and the Court's own failure

Between 1975 and 1977 the combination of a narrowly read article 21 and a proclamation under article 359 produced a position in which a detained person could not approach any court, even to allege that the detention had no legal authority whatever.

The Supreme Court accepted that position. It is treated as the low point of its record, and the dissent in that case is better remembered than the majority.

Two consequences followed, and they are the engine of everything in Module II.

The Court had to rebuild. An institution that had failed the most elementary test put to it had a standing problem, and expansive rights jurisprudence on behalf of the powerless was the way it was repaired.

And the specific doctrines that had failed were reversed. The narrow reading of article 21 was abandoned; the compartments between articles 14, 19 and 21 were opened; and Parliament removed articles 20 and 21 from the article 359 power by the Forty-fourth Amendment.

An answer that gives this cause first is explaining rather than narrating, and it is the answer MU's questions invite, because both of them quote a judge of that period.

Cause two: the constitutional and political correction

The Forty-fourth Amendment of 1978 excluded articles 20 and 21 from article 359, removed property from Part III, and required armed rebellion rather than internal disturbance for an article 352 proclamation.

The Forty-third Amendment of 1977 omitted article 32A, restoring the Supreme Court's power to consider the validity of a State law in an article 32 proceeding.

And the widened article 31C was struck down, which established that the balance between Parts III and IV is part of the basic structure.

The point is that Parliament and the Court moved in the same direction at the same time. Activism was not a judicial revolt against a hostile legislature; the legislature had itself repudiated the Emergency position.

Cause three: the failure of the other institutions

Three failures, and they explain the direction activism took.

Administrative failure. Prisons holding undertrials beyond the maximum sentence for the offence charged; bonded labour continuing thirty years after abolition; protective legislation unenforced. These are the facts of the early public interest cases, and none of them required a new law.

Legislative inaction. Areas in which Parliament had legislated nothing at all, which is where the guidelines device came from.