Judicial Activism

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Montesquieu said that law making was the job of the legislature, and taking administrative and a policy decision was the job of the executive. This approach was in accordance with the positivist school of jurisprudence propounded by the British jurists Bentham and Austin, who placed the centre of gravity of the legal system on statutory law, that is, law made by the legislature.

In contrast, sociological jurisprudence, which originated in Continental Europe in the late 19th century was developed in U.S.A. by Roscoe Pound, the realist school, etc. and sought to shift the centre of gravity in the legal system from statute to judge made law.



Judicial review is the corner stone of constitutionalism. Constitutionalism denotes a constitution not only of powers but also restraints as well. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the ‘heart of the Constitution’.

Unlike the U.S.A., the Constitution of India explicitly establishes the doctrine of judicial review in several Articles, such as, 13, 32, 131-136, 143, 226 and 246. The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the Constitution.

Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has evolved on the lines of common law doctrines such as ‘reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions.

Maneka Gandhi's Case (1978) has infused new vigor in the moribund Article 21 by giving an expansive interpretation to the word ‘life’ therein as meaning not only mere animal existence but life with human dignity. The Court has thus infused a qualitative concept in Article 21.


The most recent case on judicial activism was the case of Aruna Ramchandra Shanbaug v. Union of India (2011) , Aruna Shanbaug, a nurse in 1973, was sexually assaulted and has been in a permanent vegetative state. In 2011, after 37 years, the Supreme Court of India heard the petition to the plea for euthanasia filed by a social activist claiming to be Aruna’s friend. The Court turned down the petition, but in its landmark judgment, it allowed passive euthanasia i.e. withdrawal of life support to a person in permanently vegetative state, subject to approval by the High Court.

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