“Every agency is under the Constitution,
even Judges are under the Constitution,
but Constitution is what Judges say…”
Abstract:
This essay examines the distinction between judicial activism and judicial legislation in India,
highlighting the judiciary’s role in filling legislative gaps through key constitutional provisions.
It discusses landmark cases where the judiciary has shaped policy and created legal standards,
emphasizing the importance of judicial intervention in ensuring justice and societal adaptation.
Introduction:
The State has the prime responsibility to ensure justice, liberty, equality and fraternity in the
country. Under the Indian constitution state has the obligation to protect the fundamental rights
and ensure implementation of DPSPs. To restrict the powers and review the decision of the
state, inherent powers are conferred on the Indian judiciary. Judiciary has played an active role,
sometimes proactive also, whenever required in the light of justice, equity and good conscience
to curb the unjust, unreasonable and unfair actions of the State. Sometimes its active role is
termed as Activism and seldomly as Legislation. They appear to be same but are two distinct
terms in meaning and possess different areas for appearance.
Judicial activism is a philosophy of judicial decision making in which judges allow their
personal views on public policy, among other factors, to guide their decisions, usually with the
suggestion that adherents of this philosophy tend to find constitutional violations and are
willing to ignore precedent.
While Judicial Legislation, also known as Judge-Made Law, Judicial law and Bench
legislation, though not in contrast, but is a phrase used to indicate judicial decisions which
construe away the meaning of statutes, or find meanings in them the legislature never intended.
It is sometimes used as meaning, simply, the law established by judicial precedent rather than
by statute. The law that results when judges construe statutes contrary to legislative intent.
It is true that in our system judges are not supposed to and generally do not make new law with
the same freedom that legislatures can and do; they are, in Oliver Wendell Holmes’s phrase,
‘confined from molar to molecular motions.’ The qualification is important, but the fact remains
that judges make, and do not just find and apply, law.
Comparative Jurisprudence behind Judicial activism:
John Austin’s legal positivism theory holds that law is solely created by the political sovereign
(legislature), with courts merely applying statutory provisions to cases. However, the Indian
Constitution doesn’t distinguish between ratio decidendi and obiter dictum when establishing
the legal validity of judicial pronouncements. As a result, even obiter dicta from Supreme Court
cases have been considered binding on subsequent cases. The Constitution’s provisions on
judicial functioning have been used to justify granting obiter dicta legal binding status, enabling
the Supreme Court to implement various judicial legislations through these observations
Judicial activism under the Indian Constitution:
Under the umbrella of Constitution, Judiciary has the power to review the actions and decision
of the State. The power of Judicial review is the part of basic structure of the Constitution.
Combined reading of Article 13 with Articles 226 and 32 provides the power to higher judiciary
to review and to declare, any legislative, executive or administrative action in contravention
with the Constitution, void.iv
Article 142 of the Indian Constitution empowers the Supreme Court to pass decrees or make
orders necessary for achieving complete justice in any pending case or matter. The courts have
broadly interpreted the concept of complete justice, using this provision to enact various
judicial legislations and binding guidelines aimed at ensuring comprehensive justice, even
when these measures extend beyond the core ruling in the respective cases.
The Supreme Court’s writ jurisdiction under Article 32 has expanded its role, allowing it to
issue judgments that effectively instruct the legislature to perform specific tasks, such as setting
up committees, formulating guidelines, or implementing schemes. While these directives may
not establish formal legal precedents, they demonstrate the judiciary’s increasing influence over
the legislative process, often guiding the legislature to take concrete actions in specific cases,
further blurring the lines between judicial interpretation and legislative action.
Article 141 of Constitution of India establishes the Supreme Court’s decisions as binding on all
Indian courts. This has led to a situation where High Courts and even Parliament have accorded
significant weight to the Supreme Court’s incidental remarks, effectively elevating them to the
status of legally binding laws.
The dynamic nature of society often outpaces the legislature’s ability to adapt, leaving gaps in
the law. In these situations, courts have a critical responsibility to step in, interpret, and refine
the law to meet the changing needs of society, thereby upholding the spirit of justice and the
rule of law. When courts interpret laws, they inevitably engage in a form of judicial law making.
However, this is a necessary and implicit aspect of their role, as it allows them to clarify and
adapt legislation to achieve its intended purposes and align with societal values. By doing so,
courts ensure that the law remains effective and doesn’t deviate from its intended goals.
Status of Judicial legislation in India:
The Supreme Court’s practice of treating obiter dicta as legally binding principles has been
evident in several cases. In IC Golaknath v. State of Punjab, the court’s incidental remark that
fundamental rights could not be amended was later considered binding, despite being part of
the dictum and not the ratio. However, this was later overturned in the Keshavananda Bharati
v. State of Kerala case.
Another example is Laxmikant Pandey v. India, where the court established rules to regulate
foreign adoptions through obiter dictum, filling a legislative lacuna. The development and
evolution of Public Interest Litigation (PIL) have further blurred the lines between ratio
decidendi and obiter dictum, allowing the court to engage in judicial law-making.
A notable example of the judiciary utilizing PIL to create judicial legislation through obiter
dictum is the 1997 case of Vishaka v. State of Rajasthan. The Supreme Court invoked its powers
under Article 32 and formulated guidelines for protection of women from sexual harassment at
the workplace. The judgment further noted that under the provisions of Article 141, these
guidelines were to be considered the law of the land and therefore would be legally enforceable
until the passing of comprehensive legislation to deal with the issue.
In Shyam Narayan Chouksey vs Union of India (2018), the Supreme Court declared that playing
the National Anthem before film screenings is no longer mandatory, but rather optional or
discretionary, which they previously made a mandate.
In State of Tamil Nadu v. K. Balu & Others, the Court indicated that no shop for the sale of
liquor shall, inter alia, be situated within a distance of 500 meters of the outer edge of a highway
or of a service lane along the highway. Subsequently, this Court relaxed the prescription in the case of local bodies with a population 20,000 people or less where the distance was reduced
from 500 meters to 220 meters from the outer edge of a Highway.
In the case of M.C. Mehta vs Union of India, the Supreme Court engaged in judicial legislation
by issuing directives on the registration of BS IV vehicles, effectively creating new regulations.
Through its order, the Court has mandated the Transport Departments of concerned States and
Union Territories to ensure compliance, and has also enlisted the NIC’s assistance in facilitating
the registration process. By doing so, the Court has exercised its judicial power to legislate and
shape policy, filling a perceived gap in existing laws.
In recent suo moto cognizance, In re: Alleged rape and murder incident of a trainee doctor in
R.G. KAR medical college and hospital, Kolkata and related issues, SMW (Crl) No 2 of 2024,
decided on 20-08-2024, the Hon’ble Supreme Court ordered the constitution of a ten-member
National Task Force, comprising doctors all over the country to give recommendations on the
modalities to be followed all over the country to ensure safety at the workplace.
These were some notable incidents where the higher judiciary seems to be practicing Judicial
legislation power
Judicial Activism in form of Judicial Legislation and vice versa:
There remains a tension between judicial activism—where judges may interpret the
Constitution to expand or protect rights and maintain checks and balances—and judicial
legislation, where judges might be perceived as overstepping their role by encroaching upon
legislative functions or failing to hold other branches of government accountable to
constitutional norms.
Aadhar Case is a classic example of judicial activism, where the Justice D.Y. Chandrachud’s
dissenting opinion actively critiques and challenges the legislative process and the decision of
the Speaker of the Lok Sabha. It stated,
“To hold that the Aadhaar Act was correctly certified as a Money Bill would amount to a
subversion of the Constitution, a fraud on the Constitution, and a breach of the trust reposed
by the people in the Constitution. It would render judicial review inefficacious by accepting a
proposition that permits the certification of any bill as a Money Bill, even if it does not conform
to the substantive provisions of Article 110 of the Constitution. Such an interpretation would
denude the Rajya Sabha of its legitimate constitutional role to question and refer back bills (other than Money Bills) for reconsideration and will destroy the delicate balance envisaged by a bicameral parliamentary structure.”
The use of terms such as “fraud on the Constitution” reflects a proactive judicial stance that
seeks to protect the constitutional framework and balance of power between different branches
of government. This concern has been expressed in some other cases also, like
“We find it difficult to agree with the majority view in Justice K.S. Puttaswamy (Aadhaar) case
on the question of classification of a bill as a Money Bill… We are of the considered view that
this issue requires a reference to a larger bench for an authoritative pronouncement.”
“The expression ‘Money Bill’ in Article 110 has to be given a strict interpretation… A bill that
is not purely a Money Bill but contains aspects beyond the scope of Article 110 should not be
certified as such.”
Justice P.N. Bhagwati has opined that “There is no need for Judges to feel shy or apologetic
about the law creating roles…. Law making is an inherent and inevitable part of the judicial
process…. There is bound to be a gap between the generalities of law and the specifics of
life…thus making and moulding the law he takes part in the work of creation..
It highlights the dynamic nature of the judicial process, wheres judges play a crucial role in
shaping the law to fit the complexities of real-life situations, for example, Freebies distribution
and liberal interpretation of the statutes.
The Hon’ble Supreme Court ‘exercised’ its judicial activism and expressed their concern
regarding the freebies in the S. Subramaniam Balaji vs. State of Tamil Nadu (2013) The
Court held that the distribution of freebies did not amount to a corrupt practice per se, as no
law explicitly prohibited such promises. Nonetheless, the Court recognized the potential impact
of freebies on free and fair elections, stating:
“Though the promises in the election manifesto cannot be construed as ‘corrupt practice’ under
Section 123 of the Representation of People Act, the reality cannot be ruled out that distribution
of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair
elections to a large degree.”
This case directed to the Election Commission issuing guidelines to regulate election
manifestos, ensuring that political parties clarify the rationale behind their promises and their
financial implications, thereby promoting transparency and fairness in elections.
Another example of judicial activism can be seen through the liberal interpretation of the
Special Marriage Act, 1954 which became a breakthrough by the Navtej Singh Johar vs.
Union of India (2018), where the Supreme Court of India decriminalized consensual
homosexual sex between adults by reading down Section 377 of the Indian Penal Code.
“The constitutional principles of dignity, equality, and freedom under Articles 14, 15, and 21
must apply with full force to members of the LGBTQ community. Sexual orientation is an
essential attribute of privacy and must be protected under Article 21.”
The Court’s affirmations established a broad constitutional foundation for the rights of
LGBTQ+ individuals. It opened the door for further legal reforms, including a liberal
interpretation of the Special Marriage Act, by recognizing the right to equality and nondiscrimination for all, regardless of sexual orientation, making a strong case for extending
marriage rights to same-sex couples.
The Supreme Court had the same kind of ‘progressive’ interpretation of family law that
recognizes diverse family structures, including queer relationships in Deepika Singh vs. Central
Administrative Tribunal (2022).This shows the activism of the Judiciary.
The court broadened the scope of Right to Privacy under Article 21 by inclusion of right to
make personal choices. “The right to privacy protects the ability of each individual to make
intimate decisions primarily affecting them, including their family life, marriage, procreation,
and sexual orientation.” Extending marriage rights under the Special Marriage Act seems to
be a blend of Judicial activism and judicial legislation which would be a significant step toward
a more just, equitable, and inclusive society, fulfilling the constitutional promise of equal rights
for all citizens.
Conclusion:
This acknowledges that judges are not merely passive interpreters of the law, but active
participants in its evolution by emphasizing the importance of judicial creativity and
adaptability. The reality is that the law is not a static entity, but a living instrument that requires
judges to fill in the gaps and make nuanced decisions that reflect the changing needs of society.
This perspective empowers judges to take an active role in ensuring that justice is served, while
also acknowledging the inherent challenges and responsibilities that come with lawmaking.
It is deniable that the public’s perception of the judiciary has been tarnished as people take the
way of the court despite of its lengthy and tedious procedure. The undesirable trends that have
emerged must be halted and eliminated. It cannot be overstated that a judge, like Caesar’s wife,
must be above suspicion. Judges must consistently demonstrate dignity and detachment. What
is needed is strong collective leadership from the apex court, setting examples that will enhance
the public’s perception of the judiciary and restore confidence in it. Reflecting on the years
since our nation’s independence, it can be said that the judiciary has been a net positive, despite
some flawed judgments, occasional aberrations in the judicial process, and rare instances of
judicial misconduct. Our judiciary has upheld the rule of law, preserved constitutional values,
and protected us from despotism. And, with the blessings of Providence, it will continue to do
so if we value and support it rightly.
