JUDICIAL ACTIVISM AND ITS ROLE IN PROTECTING FUNDAMENTAL RIGHTS

Abstract

One of the most significant developments in the Indian constitutional experience has been judicial activism which has converted the Supreme Court and the High Courts not only from adjudicator of individual cases, but even into the active protectors of fundamental rights and sometimes even quasi-legislative and administrative actors. This paper analyses the concept of judicial activism, its genesis, its implications and its scope in the Indian context, specifically in the context of the scope of fundamental rights, such as the right to life and personal liberty (art. 21). The paper is arranged around five short thematic headings — the constitutional basis of judicial review, expansion of Article 21, public interest litigation as an instrument of activism, judicial activism in socio-economic and environmental rights and the countervailing principles of judicial restraint and separation of powers — each of which sets out the relevant constitutional provisions and statutory provisions in point form. A separate chapter then examines ten seminal court rulings that brought to the fore the promises and challenges of judicial activism from Kesavananda Bharati v. State of Kerala to Hussainara Khatoon v. State of Bihar. The paper contends that judicial activism has played a vital role in fulfilling the meaning of fundamental rights for the poorest and the most marginalised among the citizens of India, however, unchecked expansion of judicial power may be raising legitimate concerns of separation of powers and the Indian judiciary would continue to rely on judicial restraint to maintain its institutional legitimacy.