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Judicial activism and its need.


Judicial activism advocates for judges to interpret the law rather than merely following the text of the law. Judges are frequently accused of utilising their personal policy preferences to obtain supposedly neutral judgements.

Since the Constitution was written almost half a century ago, it's only logical that certain sections of it should be revisited with a fresh eye, without jeopardising the Constitution's essential principles. Judges should be able to interpret the terms in a particular article as there is  very restricted scope one sticks to precise interpretations. Judicial activism promotes the use of judges' interpretations, rather than strict adherence to the law.

During the Constituent Assembly debates, Dr. B.R Ambedkar emphasised on the necessity of amendments. He believed that future generations should have the power to make amendments to the Constitution as many other leaders such as Dr. P.S. Deshmukh, H.V. Kamath, and Jawaharlal Nehru  feared that the Constitution would not be able to stand the test of time and could be opposed by future generations(shorten the sentence or break it up). The Constitution, on the other hand, remains valid in most respects, and amendments to it are tolerated in places where they are necessary. ( meaning of this passage is unclear and contradictory)

2. The Need for ‘Judicial Activism’

The separation of powers between the three branches of government-Legislature, Executive, and Judiciary- is widely regarded as essential. The character and structure of today's society rely on the court to uphold the rule of law. In a perfect world, the legislature would have sole authority over legislation, and the process would be transparent and fair. Unfortunately, today's government is more dystopian than utopian in actuality. ( syntax error: the two sentences talk about the legislative body and judicial body and does not contextualize)

The criticism of judicial activism must be considered in the context of India's political environment. Since the public trust on the political body  of  India has never been lower,  courts must intervene to protect the rule of law and ensure that the term "justice" retains its meaning. Thus  could be argues that the court's activism is a result of the government's inaction in other areas. In this scenario, the actions of the judiciary are purely compensatory. Perhaps in a more stable political environment, more trust could  be placed on the political body.

It has been suggested that judges should not make laws and then try to enforce them. However, there are instances where such an act is carried out as a result of legal order. In the Vishakha case for instance, the apex courtcreated a law and sought to enforce it  emphasising however that the guidelines only be treated as a law until the legislature would enact appropriate sexual harassment laws.

3. Landmark Judgments

Judges, it has been said, should not write laws and then attempt to enforce them. In other cases, however, such an act is carried out as a result of a judicial order. The Supreme Court may have created a law and sought to enforce it in the Vishakha case, but they stressed that the guidelines would only be viewed as a law until the legislature passed proper sexual harassment legislation.

The Supreme Court of India read the "due process" doctrine into Article 21 of the Indian Constitution in the landmark case of Maneka Gandhi versus Union of India. Despite the legislature's decision to use the phrase "process established by law", this was done. As a result, the Supreme Court altered the entire interpretation of the article and narrowed the scope of what types of laws are acceptable under Article 21, which was defined as "just, fair, and reasonable." On the surface, this appears to be an example of the judiciary reading something into the Constitution that does not exist. However, the judiciary was required to take this step in order to preserve the rights of Indian nationals.

In addition to applying the law, the court has another role to play: they are the protectors of justice. Article 38 mandates the state to work for the people's welfare by guaranteeing and maintaining a social order that upholds the mandate of justice in all sectors, social, political, and economic. Indeed, some writings suggest that justice is the ultimate purpose of our legal system. Article 142, for example, gives the Supreme Court the authority to issue any judgment or order necessary to carry out total 'justice.'


The Indian constitution requires the separation of powers. However, as mentioned in the preamble, the fundamental necessity for economic, social, and political fairness outweighs this rigid division. In order to ensure that justice is served, the judiciary must frequently take issues into its own hands. Rights such as the right to privacy would not exist today if the judiciary had not followed suit. A strong and active court is also indicative of a functioning democracy. The Indian judiciary has issued several forward-thinking decisions, such as the 377 decision, that would have been unthinkable only a few years ago. It has repeatedly demonstrated that it is deserving of the recognition it receives, and it continues to strive for it. However, this is not to say that the judiciary is perfect – like every other institution, it comes with its own set of flaws. 

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