Judicial Activism in India: PIL, Overreach & Landmark Cases

[music] Let us now finally do an overview of judicial activism in India. Because judicial activism in India is this dynamic legal approach where the Supreme Court and High Court step beyond the strict statutory interpretation and they

do that to protect fundamental rights, fill the governance gaps and remedy executive or legislative inaction. Judicial activism is driven primarily by PIL public interest litigation. It serves as a vital democratic safety net. Though it is continually thereby walking this fine line with judicial overreach.

Let's look at first the key pillars and the constitutional basis for judicial activism. The constitutional articles are that they are rooted in article 32 that is the supreme court rits. Article 226 the high court rits for enforcing fundamental rights alongside article 142 which is ensuring complete justice. Now

the public interest litigation PIL now there's relaxed locust standai rules here which allow public spirited individuals or groups to approach the courts for marginalized or vulnerable populations. Let's look at some milestone contributions. There have been landmark interventions that have established the critical safeguards such as the vishaka

guidelines on workplace harassment and expanding the right to privacy. I'll begin by first highlighting once more the current dynamics and concerns here. Let's look at the overreach debate first. Now critics have argued that routine administrative or policy

directives they risk disrupting the constitutional separation of powers among the judiciary, the executive and the legislature. The institutional balance comes in when courts frequently emphasize this necessity of judicial restraint, striving to balance assertive rights

protection with respect for elected governance. The exact difference between judicial activism and judicial overreach lies in constitutional legitimacy. Now activism is actually fulfilling a governance gap while respecting democratic boundaries.

Whereas overreach violates the separation of powers by seizing the role of the legislature or the executive. Now we've looked at something about overreach. Let's now look at some illustrative examples of the legitimate judicial activism. I'll first talk about the very famous Vishaka guidelines of 1997. We've touched that a bit earlier on this

course, but let me bring that perspective back again here. The Vishaka guidelines, they were a set of procedural safety norms laid down by the Supreme Court of India in 1997 to prevent and to redress sexual harassment of women in the workplace.

Drawing the authority from international instruments like CEDO and fundamental rights under article 14, 15, 19 and 21 of the constitution. The judgment made workplace safety therefore a legal right for women until formal legislation was passed here. Therefore, it's very important for

us to remember that these guidelines had actually originated from a public interest litigation or a PIL that was filed by women's rights groups under the banner of Vishakha following the gang rape of Bhavari Dvi, a social worker in Rajasthan.

She was attacked in retaliation for stopping a child marriage as part of her official duties. The Supreme Court recognized that existing criminal law provided sadly no specific protection against workplace sexual harassment. And therefore it

stepped in to fill this very glaring legislative vacuum. I'm going to now highlight some of the key features of the guidelines. The Vishaka guidelines put down a very clear definition.

defined sexual harassment as any unwelcome sexually determined behavior including physical contact advances, demands for sexual favors, sexually colored remarks, showing pornography or unwelcome physical, verbal or nonverbal conduct.

The Vishaka guidelines asked for employer accountability made it mandatory for employers in public, private and government sectors to proactively prevent sexual harassment and maintain safe working environments. The Vishaka guidelines also set up a complaints committee mechanism required all organizations

to set up a dedicated redressal committee. In fact, this committee had to be headed by a woman, have at least 50% women members, and include an independent third party such as an NGO representative to avoid internal bias.

The Vishaka guidelines also put down guidelines on preventive action and awareness. It mandated the employers to explicitly prohibit sexual harassment in employment rules and display policies publicly. They spoke also about third party harassment, directed employers to provide support and take appropriate

action if harassment occurred through third parties like clients, contractors or visitors. At this moment, it's also important to remember the legacy and the modern status of the Vishaka guidelines because they served as the primary legal framework for 16 years. And only then in

2013 the parliament formally codified and expanded these norms into law through the sexual harassment of women at workplace prevention prohibition and redressal act of 2013 commonly referred to as the poss.

Now under the possary complaints committee they evolved into an internal complaints committee also known as what we call IC C. Now moving on next let's look at another example the right to clean environment

the expansion of article 21 the right to life and personal liberty of the Indian constitution to include the right to a clean environment specifically pollutionfree air and water which is one of the most significant judicial developments in Indian constitutional jurisputants

Now this was considered as a very landmark statement from the court because let's remember that article 21 originally stated no person shall be deprived of his life or personal liberty except according to procedure established by law. Now keeping that as the background through judicial activism

primarily starting in the 1980s via the PILS or the public interest litigations the Supreme Court ruled that the right to life does not mean mere animal existence. The right to life encompasses the right to live with human dignity which inherently requires a healthy a pollutionfree living environment.

Article 48A directive principles they direct the state to protect and to improve the environment and to safeguard the forests and wildlife. Article 51 AG talks about the fundamental duties which imposes a duty on every citizen to

protect and improve the natural environment. Keeping this in mind, let's remember that there were some landmark Supreme Court rulings here also. For example, Subhash Kumar versus State of Bihar 1991.

Now in Sububhash Kumar versus state of Bihar of 1991, this petitioner Subhashkumar filed a writ petition under article 32 of the constitution. He alleged that sludge and slurry discharged by the washeries of the Tata iron and steel company Tiscoco and the West Bukaro collaries had polluted the Bokaru river in Bihar. and he claimed

that this pollution violated the fundamental right to life under article 21. Issues here were whether the pollution of the Bokaru River violated the fundamental right to life under article 21 and whether the petition was a genuine public interest litigation PIL.

The Supreme Court held that the right to life under article 21 includes the right to enjoy pollutionfree water and air. a person or a genuine publicspirited organization can in fact approach the court

under article 32 to seek protection against environmental pollution. However, the court found that Subhash Kumar had filed the petition for personal business interests rather than genuine public interest

and so consequently the rate petition was dismissed with costs of 5,000 only. Now the significance is that this is a landmark environmental law case. It established that a clean and healthy environment is part of the fundamental right to life under article 21.

Environmental protection is constitutionally enforcable. The courts will in fact discourage the misuse of public interest litigation or PIL for private or personal motives. Here thus the key principle the ratio this and die as it's called was that the

right to life guaranteed under article 21 includes the right to pollution free water and air but PIL must be filed in genuine public interest and not for private gain. Now the key legal principles enforcing industrial compliance thus are firstly

the polluter praise principle. That means that the financial costs of preventing or remedying pollution damage must be borne by the polluting enterprise. Second is the precautionary principle which states that industries and state authorities they must take anticipatory

action to prevent environmental degradation lack of full scientific certainty cannot justify postponing cost effective measures. The third principle, the public trust doctrine. Natural resources, rivers, forests, air are held by the state in trust for the public.

They cannot be converted into private commercial ownership at ecological cost. Now let's also look that they gave us statutory mechanisms and enforcement bodies to operationalized article 21 mandates, the statutory frameworks and regulatory bodies. They actively supervise industries.

We have the water prevention and control of pollution act of 1974 and the air act of 1981. It also established central and state pollution control boards like the CPCB or the SPCBs to set emissions or affluent standards and grant quote

unquote consent to operate environment leading to the Environment Protection Act of 1986 which serves as an umbrella legislation empowering the federal government to strict strict industrial safety and discharge standards. It also led to the National Green Tribunal, the NGT Act of 2010, which ended up creating

the specialized judicial body to hear environmental disputes and fasttrack environmental compliance cases. Now, let's look at some examples of judicial overreach. Excessive, right? First here let's look at state of Tamil Nadu versus K Balu which led to liquor ban on the highways in 2016.

Now banning liquor sales within 500 m of state and national highways which severely impacted the state revenues and employment crossing into pure administrative policy. This case concerned the sale of liquor through licensed outlets located on near national highways and state highways.

The Supreme Court considered the issue against the backdrop of road accidents, injuries and deaths associated with drunken driving. The court relied on government policy and road safety data indicating that easy availability of alcohol along highways posed a very significant risk to human life. And so the Supreme Court

directed all states and union territories to stop granting licenses for liquor shops along the national and state highways. It also directed that one existing licenses would continue only until their expiry and not beyond the 1st of April 2017.

Number two, that liquor shops could not be visible or directly accessible from a highway. Number three, liquor shops could not ordinarily be situated within 500 m of the outer edge of a national or a state highway or its service lane. Number four, advertisements and sign boards indicating the availability of liquor on highways were prohibited.

And so we see the directions were issued under article 142 of the constitution. Now this judgment is important for understanding the relationship between article 21 and public safety because what is the court doing here? The court is holding that protecting human life from dangers associated with a drunken

driving also falls within the constitutional obligation to protect the right to life and dignity. Importantly, the court here stated that it was not creating its own policy. Rather, it was enforcing the constitutional right to life on the basis of a considered policy position

supported by expert bodies and road accident data. The key principle here was that the right to life under article 21 extends beyond mere physical existence and permits constitutional measures aimed at protecting human life and public safety from foreseeable risks. The original

order was subsequently clarified. The Supreme Court explained that the purpose was to prohibit liquor sales along and in proximity to highways that provide connectivity between cities, towns, and villages. Licensed establishments within municipal areas were not automatically prohibited by the 2016 order.

Secondly, let's look at the national anthem order of 2016. On November 30th, 2016, a Supreme Court bench led by Justice Deepak Mishra issued an interim order in Sham Narayan Choki versus Union of India making it mandatory for all cinema halls across India to play the national anthem Janna Ghana

before the screening of the feature films. Now, what were the key directives of this 2016 order? First mandatory playback. All cinema halls were required to play the 52 second official version of the national anthem before every film. Visual display.

The Indian national flag had to be displayed on the screen while the anthem was being played. And so what was happening is that along with that we were being told that everyone also had to do compulsory standing. That is everyone present in the hall was legally obligated to stand up to show respect.

Then also exit restrictions. The doors had to remain closed during this playback to prevent movement and avoid disrespect. Prohibition on exploitation, commercial usage, dramatization or inclusion of the anthem in variety shows or abridged formats was strictly banned.

Now here let's try and understand that what was the rationale and the public debate on this. The court based its decision on this concept of quote unquote constitutional patriotism, arguing that citizens must demonstrate respect for national symbols as part of

their fundamental duties under article 51A of the constitution. However, the ruling sparked intense public debate and criticism from legal experts and human rights advocates regarding most importantly the overreach of fundamental rights. Because here is

where critics have argued that forcing citizens to perform acts of patriotism in fact violated personal liberties under article 191A. Then comes the point of vigilantism. There were instances emerging across the country where people including persons with disabilities were physically

harassed or assaulted for failing to stand in movie theaters. Then came judicial push back. Justice Diwa Tando later Chief Justice of India questioned the logic during a substantial hearing on October 2017 stating that citizens do

not need to quote unquote wear patriotism on their sleeves and cautioning against judicial moral policing. At this point, it's also important for us to reflect that this is what led to its modification and current status.

And so in January 2018, following a push from the central government and an interministerial panel review, the Supreme Court reversed its mandatory order. There was discretionary playback.

Playing the anthem. Playing the anthem before film screenings was made optional at the discretion of the individual cinema owners. Standing obligation. If a cinema hall chooses to play the anthem, audience members,

excluding persons with disabilities, are still expected to stand up to show respect. Another point here most importantly is that today there are many debates on judicial activism in India. The debates surrounding judicial activism in India also focus on this tension between the judiciary's mandate

to uphold the fundamental rights and the constitutional doctrine of the separation of powers. While supporters argue that an active judiciary is necessary to address executive inaction and government failures, critics contend that the courts frequently overreach into policy and legislative domains.

Let's look at some of these debates. Now, one area of debate is judicial overreach versus executive discretion. Now, the courts are increasingly issuing detailed administrative directives ranging from managing urban traffic and

pollution schemes to setting policy on public health and exam conduct. The detractors argue that judges they lack the technical expertise, the administrative bandwidth and democratic accountability most

importantly to make executive policy decisions. And what does this do? This is risking creating a quote unquote governance by injunction model. Now proponents definitely maintain that judicial intervention is a remedial necessity triggered only when executive

authorities default on their statutory and constitutional duties. Now the second area of debate in this ream of judicial activism is institutional friction over judicial appointments and collegium. the Supreme Court's invalidation of the National Judicial Appointments,

particularly the National Judicial Appointments Commission's Act, the NJAC Act, and its continued control over judicial appointments via the colleium system. It still remains one of the major points of debate even though we are in 2026. Executive leaders and parliamentarians periodically argue that the colleium lacks constitutional basis, transparency

and democratic oversight, creating a system where quote unquote judges appoint judges. The judiciary is doing what? It is maintaining that this institutional independence in appointments is part of the basic structure of this constitution. preventing political interference in court operations.

Now the third area of debate currently today in India in judicial activism has been tribunal independence and legislative push back. This issue in fact is a recurring conflict that exists over the structure and the autonomy of specialized tribunals.

The Supreme Court has repeatedly struck down legislative amendments such as provisions in the Finance Acts and Tribunal Reform Acts that granted executive control over the tribunal appointments and tenurs.

Let's remember that parliament often reenacts similar clauses resulting in an institutional tug of war over judicial independence versus legislative supremacy. Let us not forget the issue of PIL public interest litigation here again

and particularly of the dilution of PILS because originally designed to give marginalized populations access to justice. The PIL mechanism is under scrutiny for its transformation into what they call personal interest or publicity interest litigation. Courts are criticized for taking up frivolous petitions leading to judicial micromanagement and contributing to the

backlog of core civil and criminal appeals. Courts argue that PILS remain the most accessible tool for rights enforcement, environmental protection and holding public institutions accountable. Nonetheless, at this point now before we conclude, let's reflect on the importance of judicial activism.

Judicial activism is important in the establishment of social justice, the strength of democracy and the rule of law. The judiciary becomes active when the legislature and the executive fail to perform their responsibilities. Judicial activism is important and very necessary. It gives us protection of democracy.

Democracy involves the participation of citizens and is governed by their representatives. Governments should govern according to constitutional principles. Judicial activism becomes important when democracy is weakened and authoritarian tendencies emerge by those who exercise power against the constitution.

Judicial activism assists in interpretation of the constitution. Since India has a written constitution, the judiciary therein has the power to interpret the constitution. The judiciary has given interpretations to constitutional activism issues in many cases.

Let's look at for example Shankari Prasad and Union of India case of 1951, Sajjan Singh and Rajasthan case of 1965, Golaknad case of 1967 and State of Punjab case of 1973, Keshaandanda Bharati case of 1973. All of these are Supreme Court cases that have given interpretation to the constitution.

Judicial activism assists in social justice. The constitution of India has provided social justice to the Indians. Articles 14 to 18, 19 to 22, 23 to 24, 25 to 28, 29 to 30, 32. Articles 38, 39, 41,46, 338, 339, 340, 342, 344 are all the

articles of the constitution that explain social justice. The legislature, executive, government institutions and officials should take the initiative to implement social justice. Otherwise, the judiciary will wake up the government institutions and officials through judicial review. It leads to progressive laws. While the

parliament makes laws for India, the state governments make laws for the respective states. If the laws made by the legislature are outdated, the judiciary makes the laws progressive and relevant through judicial activism. This makes the laws strong and longlasting. The Nage Singh

Johar case of 2018, the Shyara Bano case of 2017 which we have discussed in our earlier schedules, the Velour Citizens Welfare Forum case of 1996 and others are important documents for the implementation of progressive laws by the judiciary. Judicial activism in fact shows us that public interest matters. The judiciary works actively by receiving public

interest petitions. Governments should adequately address issues of public interest such as the abolition of bonded labor, protection of the neglected, atrocities on women, exploitation of workers, atrocities on scheduled casts and scheduled tribes, exploitation of undertrial prisoners, assault on children, adequate

distribution of basic amenities, economic empowerment, etc. Otherwise the judiciary will act proactively. For example, in the Hussein Nara Katun case of 1979 and the MC MTA case of 1981, the Supreme Court has given guidelines to the legislature and the executive regarding public interest.

Let's remember that judicial activism assists in the awareness in the legislature and executive. The legislature and executive have elected representations who are chosen by the people. These representatives who are responsible to the people should be sincerely focused on the development of the people and the legislature and the

executive become aware that the judiciary has the power to question governments that are not in the interests of the people. Now the government is aware because people file their problems in the courts through public interest or because the courts hold the legislature and the executive. However, there are also criticisms of judicial activism. Although judicial activism indicates the superiority of

the judiciary, some criticisms have been expressed by thinkers. Firstly, the legislature makes the necessary laws for the country and the judiciary conducts the judicial process according to the law made by the legislature. If the laws of the legislature are not in order, the judiciary itself directs the laws. Due to this, the judiciary usurps the function of the legislature.

Secondly, judicial activism interferes with the powers of the legislature and the executive. Interference by the judiciary in the duties of the legislature and the executive undermines the legislature and the executive elected by the people. Thirdly, elected representatives are responsible to the people but judges of the

judiciary are not responsible to the people and do not have to answer to the people. This is why the legislature should have been important in a democracy but judicial activism has given importance to the judiciary. Fourthly, the opinion of judges are personal. Their decisions are likely to be biased. Fifth, if the judiciary is

subjected to judicial activism, there is possibility of delay in the delivery of justice and this delays the timely delivery of judicial decisions to the citizens. So in conclusion, one can say that the principle of checks and balances between the legislature, the executive and the judiciary is followed in the theory of separation of powers in

India. The judiciary acts proactively when the legislature and the executive do not exercise their powers according to the law. There are also criticisms that this proactivity of the judiciary weakens the powers of the legislature and the executive. But in India, the judiciary should be proactive for social justice,

for economic conditions, protection of women, protection of children, and protection of the scheduleled casts and scheduled tribes. Judicial proactivity is essential for the protection of the poor, the exploited, the weak and the disabled, and to question all the activities of the country. Judicial proactivity is a beacon for judicially in India particularly in

strengthening and implementing democracy in India and that is why judicial activism will always be important. [music]