Like many catchwords, judicial activism has acquired so many different meanings as to obscure more than it reveals. But at the same time it can not be discarded as an intellectual void for the vagueness of the definiton of the word for at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to the spheres of executive and the legislative. Judaical activism simply means a pro-active judiciary which does no limit itself to the interpretation of law only but also sees if the law affects people adversely.

Two understand the concept of the judicial activism two theories have been expounded. The first theory “Power vacuum filling” theory says if in a system there is a vacuum because of the lack of any particular organ or the inaction of it, then other organs extend their influence to the vacuum created. Nature does not allow the vacuum to remain as such. In the government in certain areas vacuum ais created due to the lack of interest in executive or legislative or simply due to the inaction and indifference in their part. This vacuum is filled by a dynamic judiciary. This is called the judicial activism. The other thoery of “social want” says that people want something which is neither provided by the executive or the legislative. So judiciary took it upon itself to provide the wants of the people ( read the redresssal of the grievance of people ). So it became proactive and this proactive-ness is called as judicial activism. Judicial activism has its genesis in the American system. The American system of governance has favored an active judiciary because they follow the principle of judicial supremacy unlike our constitutional supremacy. So in America the judiciary has the supreme power to review any act of legislature. This favored for a proactive judiciary. But in India, though there is no favorable scope of judiciary being proactive, of lately, it is seen that judiciary is taking interest in many issues which hitherto were not in its interest. This simply means that Judiciary in India is becoming activist. But the point of analysis is how it is going to affect our democratic principle?

Brief history of an active judiciary in India:-

When one talks about the judicial activism in India the following Supreme Court judgments come to mind.

1. Golaknath vs. the state of Punjab
2. Keshabananda Bharti  vs. the state of Kerala
3. Minnerva  Mills vs. the union of India
4. Sunil Batra Vs. Delhi Government
5. M.C. Meheta Vs. the state of Tamil nadu

1. Golaknath Vs. the state of Punjab

In a land mark judgment Supreme Court made it clear that no constitutional amendments can be made on the part III of the constitution and there by fundamental rights cannot be abridged by the legislature. By this pronouncement the Supreme Court has retraced its own judgment in Shankari Prasad case and Sajjan Singh vs. state of Rajasthan case that the fundamental rights can be amended.

To remove the difficulties in the process the government in the 24<sup>th amendment amended article 368 empowering the legislature the power to amend the constitution.

2. Keshavananda Bharti Vs. the state of Kerala

In this landmark judgment Supreme Court first kicked the Hornet’s nest in the name of the basic structure of constitution. In this case the Golaknath case was over ruled and parliament regained the power of amending but Supreme Court explicitly said that the legislature by virtue of the amending power cannot change the basic structure of the constitution. But what constitutes the basic structure was not specified.

               To remove the constitutional hurdles in an amendment the   government     

               inserted clause 4 and 5 in the article 368 which mentions that limited power 

               of  amendment is a basic structure of constitution.

               3. Minnerva Mills vs. the union of India and other states

In this case the supreme court over ruled that amending power is a basic structure of constitution. By this time the legislative and the judiciary in India were at loggerheads.

4. Sunil Batra vs. Delhi government

In this case Supreme Court reinterpreted the writ of Habeas corpus as not only producing a person in the court but also preventing a person jailed from the inhuman treatment in the prison.

      5. M. C. Meheta vs. the sate of Tamil Nadu

      In this case Supreme Court not only pronounced that deployment of children 

      in hazardous factories is unlawful but also provided various guidelines for the

      children welfare.

(To be Continued in Part 2)

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