Judicial activism

Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 11, Ch 6 "Judiciary"

Meaning

Judicial activism means courts use their power actively to protect people's rights and to make the government answer for its actions. They do more than settle the disputes that affected people bring to them. It matters because it turned rights on paper into real protection for the poor and voiceless, such as prisoners, bonded labourers and migrant workers. It also raises a lasting question: how far can courts go before they start doing the work of the executive?

Explanation

Why it grew: the post-Emergency turn

• The Court's image suffered during the Emergency (1975–77).
• After 1977, the Supreme Court rebuilt public trust by turning towards the poor and voiceless.

• Justices P.N. Bhagwati and V.R. Krishna Iyer led this change.

• Public interest litigation (PIL) became its main tool. A PIL is a case filed for a public cause, not for private benefit. It is also called social action litigation.

How it works: the main techniques

• Relaxed locus standi. Locus standi is the right to bring a case to court.
• Old rule: only the person who was actually harmed could sue.

• From about 1979: public-spirited people, groups and lawyers could sue for those who could not come to court because of poverty, illiteracy or prison.

• Epistolary jurisdiction. The court treats a letter or postcard as a writ petition (a formal request to the court to enforce a right).

• The Supreme Court has treated letters, telegrams, postcards and news reports as writ petitions [2].

• A letter can be sent to the Chief Justice of India on a question of public importance [2].

• Suo motu cognizance. The court takes up a matter on its own, often after reading a news report or a letter. Nobody has to file a petition.

• Non-adversarial methods. A PIL is not an ordinary two-sided fight, so the court uses new tools:
• Fact-finding commissions: officers or experts inquire on the spot.
• Amicus curiae ("friend of the court"): a lawyer appointed to help the court. The lawyer does not represent either side.
• Court-appointed committees and continuing monitoring orders: the court keeps the case open and checks that the government obeys.

Limits and checks

• Busybodies are barred. Outsiders who interfere for their own reasons have no locus standi.
• Screening of letter-petitions. Under the Supreme Court's PIL guidelines on letter-petitions (1988, later revised), only listed categories are accepted. These are bonded labour, neglected children, complaints from jails, police harassment, atrocities on women, SCs and STs, and environmental pollution.

• NCERT says the Court later abandoned the practice of treating letters as petitions. The current position is that the practice continues, but letters are screened.

• Before accepting a PIL, the court should:

• verify the petitioner's credentials
• be satisfied, on a first look, that the contents are correct

• be satisfied that a substantial public interest is involved [3].

• The petition must state the relief sought, the grounds and the petitioner's credentials. It must also include a declaration that the petitioner has no personal interest, direct or indirect [3].

• Exemplary costs (heavy fines) can be imposed on frivolous petitions.

In the Constitution and practice

• Constitutional base. No article uses the words "judicial activism". It works through the courts' writ powers:
• Article 32: the right to go to the Supreme Court to enforce Fundamental Rights. This is itself a Fundamental Right.
• Article 226: High Courts can issue writs for Fundamental Rights and "for any other purpose", so their power here is wider.

• Article 21 (right to life and personal liberty) was read widely to include new rights.

• Landmark cases:

• Sunil Batra v. Delhi Administration (1978; 1980): in 1978 the Court examined bar fetters (iron chains on prisoners) and solitary confinement. In 1980, a Tihar Jail prisoner's note to Justice Krishna Iyer was turned into a petition. Prisoners keep their Fundamental Rights.
• Hussainara Khatoon v. State of Bihar (1979): undertrials (people in jail who have not yet been tried) had been held longer than the maximum sentence for their alleged crime. Speedy trial was held to be part of Article 21, and thousands of undertrials were freed.
• Khatri v. State of Bihar (1980–81): police blinded undertrial prisoners in Bhagalpur. State custody was brought under Article 21.
• S.P. Gupta v. Union of India (1981), the First Judges case: any member of the public acting bona fide (in good faith) may approach the court under Article 32 or 226 for those who cannot.
• PUDR v. Union of India (1982): Asiad workers were paid below the minimum wage. This is forced labour under Article 23. Child labour on the sites violated Article 24.
• Bandhua Mukti Morcha v. Union of India (1984): bonded labour in Haryana's stone quarries. Bhagwati said the poor need a non-adversarial approach.

• Olga Tellis v. Bombay Municipal Corporation (1985): the right to livelihood is part of Article 21.

• Curbs set by the courts:

• Janata Dal v. H.S. Chowdhary (1992): busybodies have no locus standi in a PIL.

• State of Uttaranchal v. Balwant Singh Chaufal (2010): laid down PIL guidelines and allowed exemplary costs [3].

• Recent suo motu instances:

• In Re Inhuman Conditions in 1382 Prisons, W.P. (C) No. 406 of 2013: High Powered Committees were directed to deal with prison conditions [5].
• Suo Motu W.P. (C) No. 6 of 2020 dealt with migrant workers stranded in the COVID-19 lockdown. The NHRC was allowed to join on 5 June 2020. The Centre was later directed to build a portal to register unorganised and migrant workers [4].
• 2021: the Court took suo motu notice of oxygen, medicines and essential services during the second COVID wave.

• Suo Motu W.P. (Crl.) No. 2 of 2024 followed the RG Kar Medical College crime in Kolkata. It was listed on 22 August 2024 [6].

• Spread abroad: the PIL model spread to South Asia and Africa. South Africa's Constitution (1996) lets anyone acting in the public interest approach the courts.

Don't confuse with

• Judicial review: the court's power to strike down laws or government actions that break the Constitution. Judicial activism is the active style of using court power, through PIL, suo motu action and monitoring orders.
• PIL: PIL is the main tool of judicial activism. It is not the same thing as judicial activism. Suo motu cases and epistolary jurisdiction are also forms of activism.
• Judicial overreach: this is when activism goes too far. Courts give orders that belong to the executive, such as bans on bandhs or running schemes, and this blurs the separation of powers (the division of work between the legislature, executive and judiciary).
• Judicial restraint: the opposite approach. The court nudges the executive to act but does not replace it.

Prelims Hooks

• A PIL can be filed under Article 32 (Supreme Court) or Article 226 (High Courts). Trap: Article 136 (special leave to appeal) is not the PIL route.
• Hussainara Khatoon (1979): speedy trial is part of Article 21. It is often called the first reported PIL.
• S.P. Gupta (1981): relaxed locus standi. It is also the First Judges case.
• PUDR (1982): paying below the minimum wage is forced labour under Article 23. Bandhua Mukti Morcha (1984): bonded labour and a "non-adversarial" approach (Bhagwati).
• Sunil Batra (1980): a prisoner's note to Justice Krishna Iyer became a petition. This is an example of epistolary jurisdiction.
• Janata Dal v. H.S. Chowdhary (1992): busybodies barred. Balwant Singh Chaufal (2010): PIL guidelines and exemplary costs. An amicus curiae assists the court and does not represent either party.

Mains Points

• For activism: it closed the gap between rights on paper and rights in practice.
• Relaxed locus standi, letter-petitions and amicus curiae brought undertrials, bonded labourers and migrant workers into court.

• Article 21 became a living guarantee (Hussainara 1979; migrant workers 2020 [4]).

• Against (overreach): orders on policy, bandhs and administration blur the separation of powers.

• Courts lack the expertise and tools to run long monitoring orders, such as the prisons case (W.P. (C) 406/2013) [5].
• "Private interest litigation" clogs court lists that already have huge backlogs.

• The balance lies in judicial restraint.

• Reform ideas:

• Screen petitioners' credentials and require a no-personal-interest declaration [3].
• Impose exemplary costs on frivolous petitions (Balwant Singh Chaufal, 2010).
• Publish clear criteria for admitting suo motu matters and letter-petitions.
• Set time limits on monitoring orders.
• Strengthen legal aid so the poor need PIL "proxies" less often.

Related concepts

• Public interest litigation
• Locus standi
• Hussainara Khatoon case
• Sunil Batra case
• Bandhua Mukti Morcha case
• Epistolary jurisdiction
• Suo motu cognizance
• Amicus curiae

Read more

• Judicial activism and the rise of PIL