JUDICIAL ACTIVISM AND SOCIAL TRANSFORMATION IN INDIA BY - RADHIKA DATAR
“JUDICIAL ACTIVISM AND SOCIAL
TRANSFORMATION IN INDIA”
AUTHORED BY - RADHIKA DATAR
Abstract:
The purpose of the research article is
to study and analyse relationship between judicial activism and social
transformation. ‘Social transformation’ is a broad
concept used to indicate social dynamics. The ideas, conveying the meanings of
evolution, progress and change on the one hand and the meanings of development,
modernisation and revolution, on the other, are incorporated within the concept
of transformation. A judicial method known as
judicial activism allows judges to interpret the law in a way that deviates
from the text of the legislation or that enables them to develop new legal
norms, principles, or standards. This strategy frequently involves using
judicial review to invalidate laws or acts by the government that are judged to
be against the Constitution or to enlarge individual rights beyond those
previously recognized by the law. The study analyses several ways in which judicial activism through various
landmark judgements in different case laws have contributed to social
transformation. The ways in which judicial activism have contributed to social
transformation includes protection of fundamental rights, elimination of social
evils, promotion of social justice, environmental protection, access to
education and healthcare, anti-discrimination and social inclusion and
declaration of privacy as a fundamental right. The study also describes
conclusions in these various case laws in order to analyse the actual
transformation that has been made through judicial activism.
Keywords: Social
transformation, judicial activism, landmark judgements, fundamental rights
INTRODUCTION:
Neither society nor social problems
are static. Social problems are closely linked with social structure,
ideologies, values, attitudes, institutions, power, authority and interests of
society. The process of social transformation brings about change in these
different aspects of social life and side by side generates new social
problems. ‘Social transformation’ is a
broad concept used to indicate social dynamics. The ideas, conveying the
meanings of evolution, progress and change on the one hand and the meanings of
development, modernisation and revolution, on the other, are incorporated
within the concept of transformation. Social transformation and social problems
are closely linked with each other. Society is not static but the dominant
groups in society sometimes want to perpetuate their hold over society and
protect their interests by repressive methods. Thus, in a negative manner, if
the process of social transformation is suppressed, it generates new social
problems. On the other hand, if the process of social transformation is taking
a natural course, the society faces the problems of adjustment during the
transitional phase of the decline of the old system and the emergence of a new
system.
Law is the reflection of the will and
wish of the society. The law, though it is the product of the society is
responsible for the social transformations. In fact, there are two modes of
this aspect. First is, "Law changing the society", which means that
the law of the land compels the society to be changed according to it. And
secondly is. "Society changes the law", as per its needs. It means law
is made by the society according to its requirement by its democratic
institution i.e. Legislative or by adopting custom and usage. When law changes
the society it is the sign of beginning of the development of the society. When
society changes law it is the sign of maturity of the society.[1]
Law is sometimes reflection of legal
precedents. Legal precedents, also known as case
law or judicial precedents, refer to the established principles and decisions
made by higher courts in India, which serve as authoritative and binding examples
for lower courts when deciding similar cases. These precedents play a crucial
role in the Indian legal system and are based on the doctrine of stare decisis,
which means "to stand by things decided. These landmark rulings of the
courts can bring significant changes and social transformations through
judicial activism. Judicial activism is a legal and political concept that
describes the tendency of judges to interpret the law and make decisions that
go beyond the literal or "strict" interpretation of legal texts, such
as statutes and constitutions. We can easily assess the social transformation
due to judicial precedents in many cases. Indira Sawhney case upheld the
reservation policy for OBC’s, Navtej Johar v. Union of India case, where the
Supreme Court decriminalized homosexuality, recognizing the rights and dignity
of the LGBTQ+ community, Justice K.S. Puttaswamy (Retd.) v. Union of India case
which affirmed an individual's right to privacy, with far-reaching implications
for personal freedom and autonomy. There are variety of such examples in India
where legal judgements through judicial activism has played significant and
important role in bringing social transformation.
THE CONCEPT OF SOCIAL TRANSFORMATION
In early sociology, concepts of
‘evolution’ and ‘progress’ were used to indicate the dynamic aspects of
society. It was gradually realised that these were that these were value-loaded
concepts, and therefore, replaced by ‘social change’ which was considered to be
more neutral and value free. After the Second World War, concepts of
‘development’ and ‘modernisation’ occupied a significant place in the
terminology of social sciences. These two concepts represent ideologies of the
developed, industrialised, capitalist and democratic Western societies. The
term ‘revolution’ was preferred by radical social scientists interested in
overhauling the capitalist social system and influenced by the Marxist
ideology. Thus, ‘Social transformation’ is a broad concept used to indicate
social dynamics. The ideas, conveying the meanings of evolution, progress and
change on the one hand and the meanings of development, modernisation and
revolution, on the other, are incorporated within the concept of
transformation. [2]
The concept of ‘social
transformation’ has occupied a significant place in social sciences after the
Second World War. The literal meaning of the concept is ‘changing form or
appearance or character or alter out of recognition’. This concept was specifically
used by Karl Marx in his book ‘German Ideology’ (1846) to mean a facet of
social change which arises out of contradictions in a society and leading to
rapid change or revolution. [3]Marx
feels that at some stage of social development, there is a conflict between the
material forces of production with the existing rules of production. The
conflict, based on these contradictions, leads to social revolution. This phase
of social revolution has been termed by Marx as a period of rapid social
transformation. Social transformation indicates the change in the form of
society or the rise of new formations. Rajni Kothari (1988) is of that view the
modernisation and revolution are two models of social transformation.
CONCEPT AND EVOLUTION OF JUDICIAL
ACTIVISM IN INDIA:
Judicial
activism is a legal and political concept that describes the tendency of judges
to interpret the law and make decisions that go beyond the literal or
"strict" interpretation of legal texts, such as statutes and
constitutions. Judicial activists are often willing to shape or reinterpret the
law to achieve certain public policy goals or to address societal issues. The
concept of judicial activism is associated with judges taking an assertive and
interventionist role in shaping legal and social outcomes. Judicial activism means
the proactive role played by the judiciary in the protection
of the rights of citizens and promoting justice in society. A judicial method
known as judicial activism allows judges to interpret the law in a way that
deviates from the text of the legislation or that enables them to develop new
legal norms, principles, or standards. This strategy frequently involves using
judicial review to invalidate laws or acts by the government that are judged to
be against the Constitution or to enlarge individual rights beyond those
previously recognized by the law.[4]
The Indian
judiciary was largely passive in the early years of independence. It had a very
limited role to play. With time, the judiciary started taking a more active
approach, especially during the 1970s and 1980s. Initially more of a technocratic court, the
Supreme Court of India has started to become increasingly involved in
constitutional interpretation. The court transformed into an activist by its
involvement and interpretation of the law and legislation, but the process took
years and was slow. The court’s early and rash declaration regarding the
purpose and character of judicial review is where judicial activism first
emerged. For the first ten years following independence, judicial activism
virtually disappeared as the executive and legislative branches of the
government actively controlled and meddled with the judiciary’s operations. The
Apex court began to examine the judicial and structural views of the constitution
in the 1970s.
The first
time the Indian judiciary showed instances of judicial activism was in the case
of Keshavanand Bharti v. State of Kerala. The decision, in this case,
marked a turning point in the evolution of judicial activism in India. Since
then, the Indian judiciary has become active in shaping the law and public
policy. It is a case that took place right before the declaration of the
emergency. The Indian Supreme Court ruled that the executive branch lacked the
authority to interfere with or alter the constitution’s fundamental principles.
Although the judiciary was unable to stop the urgency imposed by the then-prime
minister Indira Gandhi, the idea of judicial activism began to gain more
traction as a result.
METHODS OF JUDICIAL ACTIVISM:
Following
are some common ways judges engage in judicial activism:
Broad Interpretation of the Constitution: Some judges interpret the constitution broadly,
considering how society and culture have changed. They focus on the principles
and values of the constitution, not just what the framers originally meant.
Creative Statutory Interpretation: Judges may interpret laws creatively to address current
social issues. They may stretch the law's wording. They might also use
techniques like purposive interpretation to achieve desired outcomes.
Expansion of Constitutional Rights: Activist judges may expand constitutional rights beyond
what they were initially known to be. They might identify new rights or make
existing ones broader. By this, they safeguard marginalized groups or tackle
fresh social issues.
Judicial review and striking down laws: Activist judges review laws made by the government to
see if they follow the Constitution. They try to get rid of laws that they
think violate constitutional rights or principles.
Public Interest Litigation: Judges encourage public interest litigation. Here
individuals or organizations bring cases to advocate for social or policy
changes. This lets judges get involved in matters that might not have gone to
court before. This makes a bigger impact on policies and social issues. [5]
JUDICIAL ACTIVISM AND SOCIAL
TRANSFORMATION:
The role
of judiciary in modern times has been immense. Judicial activism plays a
crucial role in fostering social transformation. It refers to the willingness
of the judiciary, particularly higher courts, to actively interpret and apply
the law in a way that addresses societal issues, upholds fundamental rights,
and promotes justice and equity. Previously laws were made only by the
legislature but due to the various developments in many aspects of the society
the judiciary started taking active role in developing laws trough judicial
activism and judicial review. In these processes if a particular case comes in
front of the court in which the existing law is either not sufficient or is
violating the rights of human beings ultimately denying access to the justice
then the judiciary in that case has authority to declare that law ultra-virus
or to repeal or to amend that law. In this way judiciary develops/amends laws
to protect the rights and to remove injustices in the society and therefore it
ultimately contributes to social transformation through that
changed/altered/amended law.
Judicial
activism has a direct and profound impact on social transformation in several
ways:
1)
Protection of fundamental rights:
Judicial
activism and the protection of fundamental rights are closely intertwined in
India. The judiciary, particularly the higher courts, has played a significant
role in actively safeguarding and upholding fundamental rights through judicial
activism. When the judiciary actively enforces these rights, it promotes social
justice and transformation by ensuring equal treatment and personal freedoms
for all citizens. Judicial activists tend to interpret fundamental rights
enshrined in the Indian Constitution broadly. They look beyond the literal text
of the Constitution to discern the underlying principles and purposes of these
rights. This expansive interpretation ensures that fundamental rights are not
narrowly confined but are adapted to changing social contexts. Judicial
activism empowers the judiciary to strike down laws that violate fundamental
rights. When a law is found to be in conflict with the Constitution, the courts
are often proactive in nullifying such laws to protect the rights of citizens. Judicial activism has played the role in
social transformation by delivering some landmark judicial decisions:
Kesavananda
Bharati v. State of Kerala (1973)[6]: In this
historic case, the Supreme Court of India established the "basic structure
doctrine," which limits the amending power of the Indian Parliament. The
case ensured that certain fundamental rights and essential features of the
Constitution cannot be altered or abrogated through constitutional amendments.
Maneka
Gandhi v. Union of India (1978)[7]: This case expanded the
interpretation of the right to personal liberty under Article 21 of the
Constitution. It held that the right to travel abroad was part of the right to
personal liberty, and any restriction on this right must be reasonable and
fair.
Makhan Singh v. State of Punjab (1964)[8]: This case emphasized the importance
of the right to legal representation and access to justice. It held that the
absence of a lawyer at a trial amounted to a denial of the accused's
constitutional rights.
These
landmark cases have had a profound impact on the interpretation and protection
of fundamental rights in India. They have expanded the scope of these rights,
established important principles, and contributed to the progressive
development of Indian jurisprudence.
2)
Elimination of social evils:
The
judiciary's pronouncements have been instrumental in combating deeply
entrenched social evils. Several judicial cases in India have played a
significant role in fostering the elimination of social evils by addressing and
challenging regressive practices and norms. These cases have not only
contributed to legal reforms but have also had a profound impact on changing
societal attitudes. Here are some notable judicial cases that have fostered the
elimination of social evils in India:
Sarla
Mudgal v. Union of India (1995)[9]: This case addressed the issue of
bigamy and explored the question of whether a Hindu husband, after converting
to Islam, could solemnize a second marriage without divorcing his first wife.
The court's decision reaffirmed the need for legal reforms and the protection
of women's rights in cases of bigamy.
Vishaka v.
State of Rajasthan (1997)[10]: This
landmark case dealt with sexual harassment in the workplace. The Supreme
Court's guidelines in this case laid the foundation for combating sexual
harassment and ensuring safe working environments for women. It played a
significant role in challenging gender-based discrimination and promoting
gender equality.
Shayara
Bano v. Union of India (2017)[11]: In this
case, the Supreme Court declared the practice of triple talaq (instant divorce)
among Muslims to be unconstitutional and a violation of women's rights. The
decision contributed to the movement for gender justice within Muslim personal
law.
Independent
Thought v. Union of India (2017)[12]: This case led to the criminalization
of sexual intercourse with a minor wife, even if the marriage was consummated.
The judgment aimed to address the issue of child marriages and protect the
rights and well-being of minor girls.
Child
Marriage Restraint Act (1929)[13]: Although not a judicial case, the
Child Marriage Restraint Act, also known as the Sarda Act, was a legislative
response to the social evil of child marriage in India. The Act aimed to
restrict and regulate child marriages, setting a legal age for marriage.
State of Maharashtra
v. Madhkar Narayan Mardikar (1991)[14]: This case addressed the issue of
female genital mutilation (khatna) among the Dawoodi Bohra community. The court
held that the practice violated the fundamental rights of women and girls and
could not be justified on the grounds of religious freedom.
Rekha v.
State of Tamil Nadu (2006)[15]: In this
case, the Madras High Court took a strong stand against the practice of honor
killings. The court emphasized that individuals had the right to marry of their
own choice, and any interference in their choice of marriage was a violation of
their rights.
Nirbhaya
Gang Rape Case (2012)[16]: The brutal gang rape and murder of
a young woman in Delhi led to widespread protests and demands for legal reforms
to combat sexual violence. Subsequent legal changes, including amendments to IPC
was made after this case. The penalty for rape was increased, Juvenile Justice
Act was amended to enable the trial of accused aged 16-18 years as an adult if
accused of “heinous crimes”. All this was aimed at addressing this social evil.
Sabarimala
Temple Entry Case (2018)[17]: This case challenged the ban on
the entry of women of menstruating age into the Sabarimala temple in Kerala.
The Supreme Court ruled in favour of women's right to enter the temple,
challenging discriminatory practices based on gender.
These
cases have been instrumental in addressing and challenging various social evils
in India, such as gender-based discrimination, child marriage, sexual
harassment, and regressive cultural practices. They have contributed to the
legal and social transformation of the country, reinforcing the importance of
individual rights and gender equality.
3)
Promotion of social justice:
Numerous
judicial cases in India have fostered the promotion of social justice by
addressing issues of inequality, discrimination, and the rights of historically
marginalized communities. These cases by judicial activism have played a
pivotal role in upholding the principles of justice, equality, and inclusivity
in the Indian legal and social system. Here are some notable judicial activism
cases that have promoted social justice and resulted into social transformation
in India:
Indra Sawhney v. Union of India (1992)[18]: Commonly known as the "Mandal
Commission case," this case upheld the reservation policy for Other
Backward Classes (OBCs) in government jobs and government's power to provide
reservations in educational institutions and public employment to historically
disadvantaged communities as a means of achieving social justice and equality.
This landmark judgment addressed historical injustices, providing opportunities
to the underprivileged and contributing to social equity and transformation.
State of
Karnataka v. Appa Balu Ingale (2003)[19]: In this
case, the Supreme Court of India held that the concept of "creamy
layer" should be applied to reservations for Other Backward Classes
(OBCs), ensuring that benefits reached the most disadvantaged sections within
the OBC category.
Chameli
Singh v. State of U.P. (1996)[20]: This case
highlighted the issue of bonded labor and laid down guidelines to address the
practice, emphasizing the importance of social justice and the protection of
labor rights. In this case it was held that, Right to shelter is an essential
requisite to the right to live and hence it should be considered as a
fundamental right.
Unni
Krishnan, J.P. v. State of Andhra Pradesh (1993)[21]: This case
affirmed the right to education as a fundamental right and recognized the
importance of ensuring equal access to education for all, fostering social
justice in the realm of education.
These
cases have played a crucial role in promoting social justice in India by
addressing issues related to reservations, labor rights, prisoners' rights,
education, and the rights of historically marginalized communities. They have
contributed to the legal and social transformation of the country, reinforcing
the principles of justice, equality, and inclusivity.
4)
Environmental protection and
sustainable development;
India has
a rich jurisprudential tradition of cases laws that have played a significant
role in fostering environmental protection. These judicial cases through
judicial activism have been instrumental in establishing and strengthening
environmental laws and regulations, holding violators accountable, and
promoting sustainable development. Here are some notable judicial cases that
have fostered environmental protection in India:
M.C. Mehta
v. Union of India (1986)[22]: This
landmark case, also known as the Oleum Gas Leak case, addressed the release of
toxic chemicals in the air by an industrial plant in Delhi. The Supreme Court's
judgment led to the closure of hazardous and polluting industries in the Taj
Trapezium Zone and laid the foundation for environmental jurisprudence in
India.
Vellore
Citizens Welfare Forum v. Union of India (1996): In this
case, the Supreme Court highlighted the issue of pollution in the town of
Vellore, Tamil Nadu, and issued directions to address industrial pollution and
protect water bodies. It emphasized the "polluter pays" principle,
making industries liable for environmental damage.
T.N.
Godavarman Thirumulpad v. Union of India (1996)[23]: This case,
often referred to as the "Godavarman case," dealt with the protection
of forests and wildlife. The Supreme Court issued several directions to
regulate activities in forest areas, protect wildlife, and prevent illegal
logging and mining.
Subhash
Kumar v. State of Bihar (1991)[24]: This case
addressed the issue of unregulated industrial development and pollution in the
state of Bihar. The Supreme Court recognized the right to a clean and healthy
environment as an integral part of the right to life under Article 21 of the
Constitution.
A.P.
Pollution Control Board v. M.V. Nayudu (1999)[25]: This case
dealt with the illegal discharge of effluents from a distillery into the Musi
River. The court held that the "precautionary principle" should be
applied, which obligates the government to take preventive measures to protect
the environment.
Indian
Council for Enviro-Legal Action (ICELA) v. Union of India (1996)[26]: This case
addressed the issue of pollution in the Ganges River and led to the formulation
of the Ganga Action Plan to clean and rejuvenate the river. It demonstrated the
judiciary's commitment to protecting India's lifelines.
These
cases have contributed to the development of India's environmental
jurisprudence, emphasizing the need for environmental protection, sustainable
development, and the importance of a clean and healthy environment for the
well-being of the people. They have also reinforced the principle that the
protection of the environment is intrinsically linked to the protection of
human rights resulting into social transformation.
5)
Access to education:
Several
judicial decisions through judicial activism in India have played a significant
role in fostering access to education and upholding the right to education as a
fundamental right. These cases have contributed to legal reforms and initiatives
aimed at making education more accessible, inclusive, and equitable. Here are
some notable judicial cases that have fostered access to education in India:
Mohini Jain v. State of Karnataka (1992)[27]: In this case, the Supreme Court held
that the right to education as a fundamental right, and the state was obligated
to provide educational facilities to all. It emphasized the importance of
eliminating disparities in access to education. This case is also one of the
reason for the amendment which considered right to education as fundamental
right. The Section 21A was added through 86th amendment in the
constitution of India; requiring each state to provide free and compulsory
education to all children between 6 to 14 of their age.
Unni
Krishnan, J.P. v. State of Andhra Pradesh (1993)[28]: In this
landmark case, the Supreme Court upheld the right to education as a fundamental
right and recognized the importance of ensuring equal access to education for
all. The court emphasized that the state must strive to provide education at
all levels.
Tamil Nadu
Education vs. T. Balu (2003)[29]: This case
addressed the issue of private schools charging exorbitant fees, which made
quality education inaccessible to many. The court issued guidelines to regulate
and control school fees, ensuring that education remained affordable.
Society
for Un-aided Private Schools of Rajasthan v. Union of India (2012)[30]: This case
dealt with the implementation of the Right of Children to Free and Compulsory
Education Act, 2009 (commonly known as the RTE Act). The Supreme Court
clarified and upheld the provisions of the RTE Act, making it mandatory for
private unaided schools to admit a certain percentage of students from
disadvantaged backgrounds.
These
cases have been instrumental in fostering access to education and upholding the
right to education in India. They have contributed to efforts aimed at making
education more inclusive and equitable, particularly for marginalized and
economically disadvantaged communities.
6)
Access to healthcare:
Access to
healthcare is a fundamental right in India, and several judicial decisions have
played a significant role in fostering and safeguarding this right. These cases
have addressed various aspects of healthcare, including access to medical
treatment, quality healthcare, and the protection of the health and well-being
of citizens. Here are some notable judicial cases that have fostered access to
healthcare in India:
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981)[31]: This case recognized the right to
health and medical care as an integral part of the right to life under Article
21 of the Constitution. It emphasized the importance of safeguarding the health
and well-being of citizens.
Parmanand Katara v. Union of India (1989)[32]: In this case, the Supreme Court
emphasized the right to emergency medical treatment for accident victims. The
court ruled that hospitals could not refuse treatment to accident victims on
the grounds of legal formalities and must provide immediate medical assistance.
Consumer Education and Research Centre v. Union of India (1995)[33]: This case highlighted the issue of
the high cost of life-saving drugs in India. The Supreme Court held that access
to affordable healthcare was a fundamental right, and the government had a duty
to regulate the prices of essential medicines.
PUCL v. Union of India (2003)[34]: This case highlighted the inadequate
healthcare facilities in government hospitals and the challenges faced by
patients in accessing medical treatment. The Supreme Court issued directives to
improve healthcare infrastructure and services in public healthcare
institutions.
These
cases have contributed to the development of healthcare jurisprudence in India
and have reinforced the importance of access to quality healthcare as a
fundamental right. They have also provided guidance on various aspects of
healthcare, including affordability, safety, and the protection of patients'
rights and thereby bringing social transformation.
7) Anti-Discrimination and Social
Inclusion
Several
judicial cases in India have played a pivotal role in fostering
anti-discrimination and social inclusion by addressing issues of caste-based
discrimination, gender inequality, and the rights of historically marginalized
communities and thus contributing to social transformation. These cases have
contributed to legal reforms, social awareness, and the promotion of a more
inclusive and equitable society. Here are some notable judicial cases that have
fostered anti-discrimination and social inclusion in India:
Indra Sawhney v. Union of India (1992)[35]: Commonly known as the "Mandal
Commission case," this case upheld the government's power to provide
reservations in educational institutions and public employment to historically
disadvantaged communities to achieve social justice and equality.
S. R.
Bommai v. Union of India (1994)[36]: This case
dealt with the issue of caste-based politics and the misuse of the
anti-defection law to suppress political voices. The Supreme Court upheld the
principles of secularism and the importance of allowing diverse political
voices to be heard.
Navtej
Singh Johar v. Union of India (2018)[37]: In this
landmark decision, the Supreme Court decriminalized consensual same-sex
relations between adults, reaffirming the right to equality and
non-discrimination based on sexual orientation.
These
cases have been instrumental in fostering anti-discrimination and social
inclusion in India by addressing issues related to reservations, gender
equality, sexual orientation, and the protection of the rights of marginalized
communities. They have contributed to the legal and social transformation of
the country, reinforcing the principles of justice, equality, and inclusivity.
8)
Privacy as a fundamental right:
The
recognition of the right to privacy as a fundamental right in India has been a
significant legal development and social transformation. Several judicial cases
have played a pivotal role in fostering and affirming this right. The right to
privacy is now considered an intrinsic part of the right to life and personal
liberty under Article 21 of the Indian Constitution. Here is the notable
judicial decision that have fostered privacy as a fundamental right in India:
Aadhaar Case (Justice K.S. Puttaswamy (Retd.) v. Union of India) (2017)[38]: This landmark case reaffirmed and
strengthened the right to privacy as a fundamental right. The Supreme Court
held that the right to privacy was an inherent part of the right to life and
personal liberty under Article 21. The judgment laid the foundation for
protecting citizens' privacy rights, particularly in the context of the Aadhaar
biometric identification system.
The
Indian judiciary's contributions to social transformation are undeniable.
Through judicial activism and judicial review and by giving landmark judgments,
it has consistently upheld and expanded fundamental rights, promoted social
justice, protected the environment, combated discrimination, and advocated for
the marginalized. As India continues its journey toward a more inclusive,
equitable, and just society, the judiciary remains a stalwart pillar of
support, ensuring the protection of rights and fostering social change. These
judicial decisions exemplify the transformative power of the judiciary, setting
the stage for a more just and equitable future for India.
CONCLUSION:
Neither society nor social problems
are static. Social problems are closely linked with social structure,
ideologies, values, attitudes, institutions, power, authority and interests of
society. The process of social transformation brings about change in these
different aspects of social life and side by side generates new social
problems. There are various factors which are responsible for social
transformation such as technology, education, environment, culture, finance,
market and many more. But law and judiciary is one of such most important
factor which is responsible for social transformation. Law is the reflection of
the will and wish of the society. The law, though it is the product of the
society is responsible for the social transformations.
The role
of judiciary in modern times has been immense. Judicial activism plays a
crucial role in fostering social transformation. It refers to the willingness
of the judiciary, particularly higher courts, to actively interpret and apply
the law in a way that addresses societal issues, upholds fundamental rights,
and promotes justice and equity. Previously laws were made only by the
legislature but due to the various developments in many aspects of the society
the judiciary started taking active role in developing laws trough judicial
activism and judicial review. In these processes if a particular case comes in
front of the court in which the existing law is either not sufficient or is
violating the rights of human beings ultimately denying access to the justice
then the judiciary in that case has authority to declare that law ultra-virus
or to repeal or to amend that law. Judiciary then gives landmark decisions to
protect rights of the people which then causes to amend particular law. In this
way judiciary develops or amends laws to protect the rights and to remove
injustices in the society and therefore it ultimately contributes to social
transformation through that changed or altered or amended law.
[1] Law
& Social Transformation by G P Tripathi
[2] Law
and Social Transformation by Kaushik C Raval, Krishna Pal Malik , 5th Edition,
2023
[6] (1973) 4 SCC 225; AIR 1973 SC 1461
[8] 1964 AIR 381, 1964 SCR (4) 797
[11] AIR 2017 9 SCC 1 (SC)
[12] WRIT PETITION (CIVIL) NO. 382 OF 2013
[14]
AIR 1991 SC 207
[15] CRIMINAL APPEAL NO(s). 755 OF 2011
[16]
WRIT PETITION (CRL.) NO.65 OF 2020
[17]
2019, 11 SCC 1
[19] AIR 1993 SC 1126, 1993 (1) ALT Cri
390, 1993 CriLJ 1029, 1992 (3) Crimes 1104 SC, JT 1992 Suppl 1 SC 588, 1992 (3)
SCALE 339, 1995 Supp (4) SCC 469, 1992 Supp 3 SCR 284
[20] Appeal (civil) 12122 of 1995
[21] 1993 AIR 2178, 1993 SCR (1) 594
[22] 1987 AIR 1086, 1987 SCR (1) 819
[23] (1997) 2 SCC 267
[24] 1991 AIR 420, 1991 SCR (1) 5
[26] 1996 AIR 1446, 1996 SCC (3) 212
[27] 1992 AIR 1858, 1992 SCR (3) 658
[28] 1993 AIR 2178, 1993 SCR (1) 594
[30] WRIT PETITION (C) NO. 95 OF 2010
[31] 1981 AIR 746, 1981 SCR (2) 516
[32] 1989 AIR 2039, 1989 SCR (3) 997
[33] 1995 AIR 922, 1995 SCC (3) 42
[34] AIR 1997 SC 568, JT 1997 (1) SC
288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ
187 SC
[35] AIR 1993 SC 477; 1992 Supp 2 SCR 454
[36] 994 AIR 1918, 1994 SCC (3), 1, JT 1994 (2)215, 1994
SCALE(2)37
[37] 2018 INSC 790
[38]
(2017) 10 SCC 1, AIR 2017 SC 4161