Comment on judicial activism and social change. (150 words) (2012, 12 Marks)
Granville Austin read the Constitution as a charter of social revolution. Judicial activism is the Supreme Court’s attempt to become an agent of that revolution when the elected branches lagged. It has worked through relaxed standing, letters treated as petitions, and the reading of Part IV directives into Article 21 rights. The record shows that courts can start social change but cannot finish it alone.
Where activism moved society
- The rightless: prisoners (Sunil Batra, 1978), undertrials (Hussainara Khatoon, 1979), bonded labourers (Bandhua Mukti Morcha, 1984) — Upendra Baxi‘s “social action litigation”.
- Gender: Vishaka (1997) guidelines, later the POSH Act 2013; Joseph Shine (2018) ended the offence of adultery; Shayara Bano (2017) invalidated instant triple talaq, later criminalised by statute in 2019.
- Welfare as entitlement: Unni Krishnan (1993) → Article 21A (2002) and the RTE Act 2009; the PUCL right-to-food orders (from 2001) made cooked mid-day meals a legal duty → National Food Security Act 2013.
- Identity and dignity: NALSA (2014) recognised a third gender, followed by the Transgender Persons Act 2019; Navtej Singh Johar (2018) decriminalised consensual same-sex relations.
- Substantive equality: State of Punjab v. Davinder Singh (2024) permitted sub-classification within the Scheduled Castes.
The pattern that works is court declares, legislature consolidates.
Limits
- Hollow hope: Gerald Rosenberg (The Hollow Hope, 1991) argued that courts lack purse and sword and depend on others to implement. Manual scavenging, prohibited by statute and addressed by the Court in 2014, persists; Sabarimala (2018) stayed inert on the ground.
- Who litigates: Marc Galanter‘s “Why the ‘Haves’ Come Out Ahead” (1974) shows repeat players beating one-shot litigants. Indian PIL drifted from bonded labourers to middle-class amenity causes, and slum demolitions ordered in “public interest” displaced the poor.
- Weak remedies: health and education litigation, surveyed by Shylashri Shankar and Pratap Bhanu Mehta, often yielded committees and declarations rather than delivery.
- Deference on hard questions: Supriyo Chakraborty (2023) left same-sex marriage to Parliament. The Court changes law faster than it changes society.
Conclusion
Judicial activism is best understood as a catalyst, not an engine. It has advanced social change where a mobilised constituency and a willing legislature took the ratio forward, as with food, education and transgender rights. Without that support, as in Sabarimala, the judgment stays a declaration and little changes on the ground.