1. JUDICIAL ACTIVISM IN INDIA
Prof. Ashoke Kumar Sarkar

2. Success of Democracy in India
• Several Factors
• including the Efficient Functioning Of The
Judiciary which is an important Democratic
Institution in India

3. Judiciary In India
• Gradually developed from a passive, ‘positivist
court into an activist’ institution
• Judicial activism is an expression widely used in
recent times to denote a kind of active, dynamic
role of the Indian judiciary not envisaged by the
framers of the Constitution of India
• Upendra Baxi, a renowned jurist, this has been
possible as result of two extraordinary judicial
innovations
(i) the doctrine of basic structure &
(ii) public interest litigation

4. Tussle Between The Judiciary & The
Executive And Legislature
• is as old as the very inception of the Constitution in 1950
• The Constitution of India guarantees the judiciary the power of
judicial review, not in the American sense of the term but in
somewhat revised form
• Judiciary examines the legality or constitutionality of the activities
of the government
• Policy formulation is the sole prerogative of the legislative-
executive departments of the government
• Judiciary just keeps vigil whether the parliamentary enactments
and the executive actions are in accordance with the laws of the
constitution
• Neither the Parliament & the Cabinet nor the Court can claim
independently to be truly sovereign
• Parliamentary form of government in India is thus a compromise of
powers of different organs of the government

5. D. D. Basu
Our constitutional system
‘wonderfully adopts the via
media between the American
system of judicial supremacy
and the English principle of
parliamentary supremacy’

6. 2 Extraordinary Judicial Innovations: Upendra Baxi
(i) The Doctrine Of Basic Structure
(Ii) Public Interest Litigation

7. Doctrine Of Basic Structure
Unlike the Constitution of Norway and
Federal Republic of Germany, there
is no mention of ‘basic structure’ in
any provision of our Constitution

8. Keshavananda’s Case
• Started in March, 1970
• when Swami Keshavananda Bharati Sripadagalvaru,
head of a muth or monastery in Kerala, filed a case in
the Supreme Court of India challenging two Kerala
Land Reforms Acts which wanted to impose limits on
the management of the property of the muth
• In the meantime, in order to get over the obstacles
created by the Apex Court in the Golak Nath Case
(1967), Constitution 24th (1971), 25th (1971) and 29th
(1972) Amendment Acts were passed by the
Parliament of India

9. Golak Nath Case
• originated with the acquisition by the Punjab
government of surplus land of I.C. and I. Golak
Nath in terms of Punjab Security of Land
Tenure Act, 1953. I.C. and I. Golak Nath
submitted a petition in the Supreme Court
under Article 32 (Right to Constitutional
Remedies)

10. M.C. Setalvad
• first Attorney General of independent India
and a renowned jurist stated : “The majority
decision clearly appears to be a political
decision not based on the true interpretation
of the Constitution, but on the apprehension
that Parliament, left free to exercise its
powers, would, in course of time, take away
the citizen’s rights….”

11. Congress government
• under the premiership of INDIRA GANDHI
nationalized fourteen banks by promulgating
ordinances and the privy purses given to the
princes of India’s erstwhile native states were
sought to be abolished through the device of
derecognition of those princes by an executive
fiat
• The government later passed a nationalization
law replacing the ordinance regarding
nationalization of banks

12. R.C. Cooper v Union of India ( 1970 )
• also known as Bank Nationalization Case
• Supreme Court struck down the
nationalization act for failure to pay deserved
compensation

13. 24th Amendment Act
• was in response to Golak Nath judgement
• It changed both Article 13 and Article 368
• New Articles 13( 4 ) and Article 368 ( 3 ) unequivocally stated that
amendments to the constitution in conformity with Article 368
were not to be considered as law within the meaning of Article 13
• Marginal note to Article 368 was also changed
• Marginal note, as it originally stood, was ‘Procedure for
amendment of the Constitution’
• 24th Amendment Act amended it to read ‘Power of Parliament to
amend the Constitution and procedure therefore’
• The object of this amendment was to restore to Parliament the
plenary power of amendment of the Constitution which the
Parliament had possessed before the judgement of the Supreme
Court in the Golak Nath case

14. 25th Amendment Act
• The word ‘ compensation’ in Article 31 ( 2 ) was replaced by the word
‘amount’
• The Act made it clear that the right to acquire, hold and dispose of
property laid down in Article 19 ( 1 ) ( f ) would not apply to laws relating
to acquisition under Article 31 ( 2 ) of the Constitution
• It also inserted Article 31C to provide that any law to implement Article
39 ( b ) and ( c ) [ that the ownership and control of the material resources
of the community are so distributed as best to subserve the common
good ( Article 39 [b ] ) and that the operation of the economic system does
not result in the concentration of wealth and means of production to the
common detriment ( Article 39 [c ] ) ] would be free from the limitation
imposed by Article 14, 19 or 31.
• 2 Kerala Land Reforms Acts,viz., the Kerala Land Reforms (Amendment)
Act,1969 and the Kerala Land Reforms ( Amendment ) Act, 1971 were
placed in the Ninth Schedule by the Constitution 29th Amendment Act,
1972
• Keshavananda challenged these Amendment Acts in the apex court

15. Keshavananda Bharati v. State of
Kerala (1973)
• The Supreme Court of India overruled its earlier decision in
the case of Golak Nath v. State of Punjab (1967)
• It upheld the validity of the Constitution 24th, 29th and
section 2(a),2(b) and first part of section 3 of the 25th
Amendments Acts
• The Supreme Court, however, invalidated second part of
section 3 which deprived the Supreme Court of its power of
judicial review
• Any amendment of the Constitution destroying or
damaging the basic structures would be declared null and
void by the court
• This view was reaffirmed by the apex court in a number of
subsequent cases.

16. Supreme Court
• been able to control
Parliament’s plenary power to
amend but also “assured for
itself, a new an impregnable role
in the constitutional politics of
India”