Home       Top Rated       Submit Article     Advanced Search     FAQ       Contact Us       Lawyers in India       Law Forum     RSS Feeds     

Register your Copyright Online

We offer copyright registration right from your desktop click here for details.

Latest Articles | Articles 2014 | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05

Search On:Laws in IndiaLawyers Search

Mutual Consent Divorce in Delhi
We provide fast, cost effective and Hassle free solution.
Contact us at Ph no: 9650499965 (Divorce Law Firm Delhi)
File Caveat in Supreme Court
Contact Ph no: +9650499965

Main Categories
 Accident Law
 Animal Laws
 Aviation Law
 Bangladesh Law
 Banking and Finance laws
 Case Laws
 Civil Laws
 Company Law
 Constitutional Law
 Consumer laws
 Contracts laws
 Criminal law
 Drug laws
 Dubai laws
 Educational laws
 Employment / Labour laws
 Environmental Law
 family law
 Gay laws and Third Gender
 Human Rights laws
 Immigration laws
 Insurance / Accident Claim
 Intellectual Property
 International Law
 Juvenile Laws
 Law - lawyers & legal Profession
 Legal Aid and Lok Adalat
 Legal outsourcing
 Media laws
 Medico legal
 Real estate laws
 Right To Information
 Tax Laws
 Torts Law
 Woman Issues
 Workplace Equality & Non-Discrimination
 Yet Another Category

More Options
 Most read articles
 Most rated articles

Subscribe now and receive free articles and updates instantly.


Published : April 21, 2010 | Author : shinsyshahul
Category : Law - lawyers & legal Profession | Total Views : 20230 | Rating :

final year LLM student,kerala GOVT.LAW COLLEGE ,THRISSUR

                                               Blacks law dictionary defines judicial activism as a judicial philosophy which motives judge to depart from strict adherence to precedents in favour of progressive and new policies which are not always consistent with the restraint expected by appellate judges. If we regard judical philosophy  as a coin,one side of it is activism and other side is  restraint.In order to respond to the hopes and aspirations of the litigants,judiciary has to exercise a jurisdiction with a courageous  creativity.To have  that courage, use of practical wisdom in adjudicatory process helps a lot.

                             Judicial activism can be regarded as an unconventional role played by judiciary by delievering valuable judgements and granting reliefs to the aggrieved according to the moral and social justice where statutory law is silent or even contrary.Active interpretation of an existing provision  with a view to enhance the utility of a legislation for social betterment, can be regarded as a judicial activism. In brief, it can be also assumed that judicial activism  comes in to play when there is a legislative shortsightedness or executive arbitrariness or both .

                                                                             In the field of human right jurisprudence,environmental aspects,anti death sentence cases judicial activism contributed a lot.  Scope of Art.21  expanded due to active judicial interpretation. In Maneka Gandhi v. Union of India[1] ;Rudal shah v.State of Bihar[2] ;Hussainara khatoon v. State of Bihar[3]  etc… it can be seen.  But it is also to be noted that judicial activism should not become an adventuralism. Choice between activism and restraint should be on the basis of a clear and clean policy.Judicial self restraint is a theory of judicial interpretation that encourages the judge to limit their exercise of power.And the major restraint in judicial creativity originates from the awarness of the need to maintain a balance among the three branches of government.


Question of judicial activism v .judicial restraint was well discussed in the case State of U.P and anothers v.Jeet .s .bhisht[4]. In it  Justice markandeya katju observed,by exercising  Judicial restraint judiciary will enhance its own respect and prestige.If a law clearly violates a provision of the constitution, it can be struck down,but otherwise,it is not for the judiciary to sit in appeal over the wisdom of the legislature,nor it can amend the law.The court may feel that law may be amended or the forum created by the Act need to be made more effective,but on this ground it cannot itself amend the law or take over the functions of the legislature or the executive.But Justice Sinha  opposed it relying on the fact that judge made law is recognized through out the world. If one is to put the doctrine of  separation of power in to absolute rigidity,it would not have any superior court in this country,whether developed or developing,to create new rights through interpretative process. Admitting all the matters mentioned above, without disputing the idea behind judicial restraint, it is submitted here that too much restraint imposed by judiciary upon itself on the basis of strict separation of powers cannot be a path to identify  justice in the eyes of poor.


                                               Just as too much of interference by judiciary impairs smooth governance, the stand of restraint also affects the system adversely[5].As too much judicial activism would produce  an adverse impact on the position of the Judiciary  itself ,too much restraint would have a self annihilating effect.  If the courts are not able to check abuse of legislative and executive power by the very raison d’tre  of judicial  institution would be defeated.  Such a failure on the part of the judiciary would destroy the confidence of the people not only in judicial institutions, but also in democratic process . A wise  judicial policy has to be a judicious  blend  of Activism and Restraint, the exact properties of each varying with the exigencies  of the situation is to be welcomed[6].court will not  transgress into the fields of policy decisions..

                                                                  Role of Higher judiciary under the constitution casts on it a  great obligation as the sentinel to defend  the values of the constitution and the rights of the Indians.  court must   act within their judicially permissible limitations to uphold the rule of law and harness their power in public  interest[7]. Prof  S.P. Sathe observes


“ True sometimes the court have gone beyond the scope of their  powers.  they have entertained matters they ought not to have entertained, and they have been guilty of populism as well as adventurism in violation of the doctrine of separation of powers.  Such excesses ought to be prevented or minimized through judicial self restraint.  But in the present Indian Scenario, excessive restraint and doctrinaire regard for separation of powers could also be disastrous.  Ultimately what  a court  should entertain and what should not must be governed by proper exercise of judicial  discretion[8]”.

Judicial philosophy  which is to be adapted by the entire judicial community is  reflected in the famous quotation of Ravindra Nath Tagore ;

In to the mouths of these 

Dumb,  Pale and meek

We have to infuse the language of the soul.  Sorts of

In to the hearts of these

Weary and worn, dry and forlorn 

        We have to minstrel the language of humanity. 

In order to preserve and protect the essence of our constitution,a creative judiciary is a must,and that  sorts of judicial  intervention should be with clear vision and intelligence.

[1] AIR 1978 SC 597

[2] AIR 1983 SC 1086

[3] AIR 1979 SC 1377

[4] 2007 6 SCC 586

[5] See N.K. Jayakumar,  Judicial process Limitations and Leeways (1997) p.7 

[6] Ibid at p. 8 .Between too much restraint and total lack of restraint lies the golden mean.


[7] See  Narmada Bachao Andolan v Union of India (2000) 10 SCC 664 p. 762

[8]See S.P. Sathe, Judicial Activism in  India: Transgressing Boarders and enforcing limits ( 2nd ed ; 2002)


Authors contact info - articles The  author can be reached at: shinsyshahul@legalserviceindia.com

1 2 3 4 5
Rate this article!     Poor

Most viewed articles in Law - lawyers & legal Profession category
• Professional Misconduct by lawyers in India
• Professional misconduct of lawyers in india
• Judicial Process in India
• Restriction on Advocates
• Power of Attorney
• Basic Principles & Rules of Law of Evidence
• The Legal system in ancient India
• Judicial Accountability in India
• Natural Law
• Development of Adalat System during the time of Warren Hastings
• Interpretation of Statutes
• Review of National Education Policy from Student
• Judiciary system in India
• Judges of Supreme Court and High Court can be Impeach - A Controversy
• Mesne Profit
• Theory of Relationship between Law and Morality
Most recent articles in Law - lawyers & legal Profession category
• How to Identify Best Criminal Lawyers
• Qualities to Look for Divorce Lawyers
• Empowering Aspiring Advocates is necessary
• How to get Real Time Experience of solving Legal Issues
• Representation of Women in the Legal Profession In India
• Freedom of Business, Trade and Profession
• Legal Profession in India
• Law Firm Document Management Software
• Theory of Relationship between Law and Morality
• Role of Lawyers in Social Transformation
• National Judicial Appointment Commission Act
• Tribunalization of Justice
• Role of Judiciary In Strengthening PIL
• Theory of Justice by John Rawls: its criticism by Martha C. Nussbaum and Amartya Sen
• Lets Be Defiant
• Litigation: An Inherited Proletarianism

Article Comments

Posted by sweta maji on June 28, 2011
Please write some articles on Judicial Creativity,Tools and Techniques of Judicial Creativity and Precedent etc...

Posted by shobhna on October 02, 2010
article is quite informative,,but too short to clear the concept as well.

Posted by Guruprasad M.N. on August 07, 2010
Good Article on Judiciary....Please write some articles on Judicial Creativity,Tools and Techniques of Judicial Creativity and Precedent etc...

Please login or register a new free account.

Random Pick
‘If the Public Prosecutor was absent and if the witnesses were not kept present and if the applications for witness summons were not presented by the prosecution then also the court was not powerless. The court itself could have issued witness summons in order to see that the person behind the screen of the stage does not suffer....

» Total Articles
» Total Authors
» Total Views
» Total categories

Law Forum

Legal Articles

Lawyers in India- Click on a link below for legal Services

lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
lawyers in Pondicherry
lawyers in Guwahati
lawyers in Nashik

lawyers in Jaipur
lawyers in New Delhi
lawyers in Dimapur
lawyers in Agra
Noida lawyers
lawyers in Siliguri

For Mutual consent Divorce in Delhi

Ph no: 9650499965
For online Copyright Registration

Ph no: 9891244487
Law Articles

lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
Faridabad lawyers

lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Ghaziabad lawyers

lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
lawyers in Ludhiana
Gurgaon lawyers


India's Most Trusted Online law library
Legal Services India is Copyrighted under the Registrar of Copyright Act ( Govt of India) © 2000-2017
 ISBN No: 978-81-928510-1-3