What is Judicial Activism
Judicial Activism with Case Law, Pros and Cons


Judicial activism is a philosophy in the judiciary that actuates (motivates) judges to go beyond statutory precedents and adopt a progressive method in deciding cases. The term originated in the United States by Arthur Schlesinger in 1947. In recent days, it is seen in view that a judge favours judicial activism when he sets aside his earlier judgment.

The Legislature, Executive and Judiciary are the three organs in our country. And according to the doctrine of separation of powers, which is based on the principle of trias politica, all the three organs should exercise their powers independently. Or in other words, no organ should interfere with the decisions of other organs. Note: The said doctrine is not fully accepted in India as held in Ram Jawaya vs Punjab State. In some instances, the judiciary has to go beyond the doctrine of separation of powers which is termed as ‘judicial activism‘.

Indian Precedent of Judicial Activism

With respect to the doctrine of separation of powers, the Indian Constitution has the following provisions-

Bare Act PDFs
  1. Article 121 and Article 211 prohibit any Legislature in its functions from talking about the conduct of any judge.
  2. Article 122 and Article 212 impede the judiciary from judging the legislature’s proceedings.
  3. In terms of freedom of speech and voting, Article 105(2) and Article 194(2) protect legislators from judiciary interference.

Our Constitution favours judicial activism to some extent in Articles 13, 32 and 226, which provides power to the higher judiciary to declare the executive’s statutory orders as void.

Examples of Judicial Activism

The first case of judicial activism started in 1979 when the Hon’ble High Court of Judicature Allahabad declined the electioneering of Ms Indira Gandhi. Other landmark cases include the Keshavananda Bharti case, Golakhnath vs Punjab State, Hussainara Khatoon vs Bihar State etc.

Some recent case laws on judicial activism are:

  1. Rajesh Sharma vs State of UP (2017): Here, the court became fed up with the misuse of section 498A IPC and directed that the complaints be forwarded to Family Welfare Committee constituted under respective DLSAs (District Legal Services Authority) as there is no such provision mentioned in the code.
  2. MC Mehta vs UOI (2018): When the Hon’ble apex court ordered the sale of BS-6 vehicles and banned the sale of BS-4 vehicles after 30th March 2020, it had invalidated the statutory rule of section 115(21) of Central Motor Vehicle Rules. Here the court exercised power vested under Article 142 of the Constitution.
  3. The Hon’ble Supreme Court on 29th October 2018 passed a judgement, banning 15-year-old petrol vehicles and 10-year-old diesel vehicles from plying in the National Capital.

What Propels Judges to Become Judicial Activists?

Society is moving at a breakneck pace. Our laws are outdated when compared to the updated demands of society. When the legislative machinery fails to update the laws at the desired speed, and government machinery fails to discharge its functions, to uphold the values of the democracy, the judiciary has to step in to fill the gaps reserved for the other two organs of the country.

Another reason is to uphold the faith of the people in the judiciary. Finally, when there is a clash between statutory laws and fundamental rights, the judiciary has to step in to protect the fundamental rights of the citizens.

Advantages of Judicial Activism

  1. It creates an equilibrium in different government departments.
  2. It enhances people’s faith in the judiciary
  3. Where the law fails to meet the expectations, judicial activism comes into play.
  4. Judicial activism helps judicial mechanism to prevent haste misuse of power by the state machinery.
  5. Aids in speedy justice.

Disadvantages Judicial Activism

  1. The judgements delivered via judicial activism mode sets a basic rule for other judgements.
  2. Recurring review of judgements can result in a loss of faith in the judiciary.
  3. State and Central machinery functioning become limited with judicial activism.
  4. Statutory and legislative laws are violated.
  5. Decisions or orders can be influenced for personal gains.

Opinion and Importance

Legal experts cite judicial activism as more democratic. Our country is a democratic country. Law is for society. When a situation arises such that judicial activism is not followed, the judicial system becomes a mere looker, and the purpose of law will not get solved. Hence, judicial activism with discipline must be followed to save society from getting prejudiced and create a perfect balance. If discipline is not maintained and the judges will keep on making laws, our democracy will be crippled.

Author Amit Das WritingLaw
This article is written by Amit Kumar Das, B.Tech, LLB. He is a practicing advocate from Odisha High Court & Puri District Courts.
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