Judicial activism is most debated among the students of law and laymen. What is judicial activism? Judicial activism is exercising the power of judicial review to set aside government acts by the judiciary.

Last decade we saw most of the orders passed to administer various policies of the government by the Supreme Court. From abortion of 24-week fetuses to supply of oxygen and medicine, gay rights, gay marriages, Aadhaar- PAN linking, repeal of Article 370, Ram Temple, Rafael allegation.

During the coronavirus pandemic court orders were passed distribution of remdesivir, vaccine, oxygen. In Uttar Pradesh, photos of the burial of bodies at Ganga Ghat were used to create sensation and Hon’ble Court dismissed such frivolous litigation.



It is a legal doctrine originated in Canada.  The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government. (as applicable in Canada)

The doctrine was first articulated in Cushing v. Dupuy, where the Judicial Committee of the Privy Council held that certain rules of civil court procedure could be prescribed under the federal bankruptcy power. It was subsequently confirmed in Tennant v. The Union Bank of Canada, where rules governing warehouse receipts with respect to bank loans could be prescribed under the federal banking power.

*The full test was articulated in General Motors v. City National Leasing by Dickson CJ, where he summarized and outlined the analysis to be used in that regard in future cases:

The court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent.

It must establish whether the act (or a severable part of it) in which the impugned provision is found is valid.

In cases under the second branch of s. 91(2) this will normally involve finding the presence of a regulatory scheme and then ascertaining whether the hallmarks articulated by the Court have been met by the scheme. If the scheme is not valid, that is the end of the inquiry.

If the regulatory scheme is declared valid, the court must then determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. This requires considering the seriousness of the encroachment on provincial powers, in order to decide on the proper standard for such a relationship. If the provision passes this integration test, it is intra- vires Parliament as an exercise of the general trade and commerce power. If the provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of s. 91(2).

*(source Wikipedia)


  1. Kesavananda Bharati v. State of Kerala Case, is also known as the Fundamental Rights case. It is one of the most significant decisions in Indian constitutional history, post-independence. It was heard by 13 judges’ bench of the Supreme Court. S.M. Sikri C. J., Hegde J, Mukherjee J, Shehlat J, Grover J, Jaganmohan Reddy J, and Khanna J delivered the majority verdict in the case; Ray J, Palekar J, Mathew J, Beg J, Dwivedi J, and Chandrachud J dissented.
  2. The decision in the Keshavananda Bharati Case was friction between the state government of Kerala.The petitioner Keshvanand Bharati a sage challenged the Kerala land reforms legislation in 1970, which imposed restrictions on the management of religious property. The Petition was filed under Article 26, concerning the right to manage religiously owned property without government interference.
  • The question underlying the case also included: Was the power of the Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, or abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

What was the cause of the action which led to the filing of this Petition?

The Twenty-fourth Amendment of the Constitution of India, officially known as The Constitution (Twenty-fourth Amendment) Act, 1971, enables Parliament to dilute Fundamental Rights through Amendments to the Constitution.

The Twenty-fifth Amendment of the Constitution of India, officially known as The Constitution (Twenty-fifth Amendment) Act, 1971, curtailed the fundamental right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts. The amendment also exempted any law giving effect to Article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated Fundamental Rights.

Outcome of the Petition:

The judgment was delivered on 24 April 1973 by a majority of 7:6 wherein the majority held that any provision of the Indian Constitution can be amended by the Parliament in order to fulfill its socio-economic obligations that were guaranteed to the citizens as given in the Preamble provided that such amendment did not change the Constitution’s basic structure.

The minority, however, in their dissenting opinion, was hesitant of giving Parliament unlimited amending power. The court held that the 24 Constitutional Amendment was entirely valid. But declared the second part of the 25 Constitutional Amendment to be ultra vires. The Supreme Court declared Article 31C unconstitutional and invalid on the grounds that the basic structure, hence cannot be taken away. Despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.

The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws. Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.


  1. Amendment to the Preamble in 1976 inserted two words “secular” and “socialist”. It changed the character and nature of the country’s ambition and purpose. The 42nd Amendment changed the description of India from a “sovereign democratic republic” to a “sovereign, socialist secular democratic republic”, and also changed the words “unity of the nation” to “unity and integrity of the nation” This amendment was done without following mandatory amendment process during the emergency by erstwhile Prime Minister Indira Gandhi.
  2. Collegium: Judges appoint Judges. This system was enacted and enforced by various series of judgments. Originally it was the prerogative of the President to appoint. But now the power is reduced to just confirming authority.
  3. Election Commissioner Appointment: By order of the Supreme Court amended process to elect the Election Commissioner and directed to form a committee, and impleaded Chief Justice of India in the Committee and thereby amended Article 324(2). This was the prerogative of the President of India under Article 324 (2).


The point is when the court restrains the Parliament which is lawmakers from amending the basic structure of the Constitution, while Courts amend the Constitution by passing judgments. Example point no a and b above.

Supreme Court in its judgment dated 2nd March 2023  held that the appointment of members of the Election Commission of India (should be done on the advice of a committee comprising the Prime Minister, Chief Justice of India, and the Leader of Opposition (or the leader of the single largest opposition party) in the Lok Sabha [Anoop Baranwal v. Union of India and ors].

While no action is taken in issue no. (a)  and (b)  but for issue no (c) central government will move a Bill




India watches evolving laws. Considering three events that has occurred in our judicial history a statement made by retired CJI Ranjan Gogoi in Rajya Sabha during debate of bill Delhi Service Bill now Act of 2023  was correct.


Shruti Desai

11th August 2023.