Judicial activism, in the context of India, is the active intervention of the judiciary for the protection of constitutional principles, legislative loophole-filling, and the cause of social justice. Judicial restraint, where courts restrict themselves to a literal interpretation of the law as enshrined, judicial activism permits judges to interpret constitutional provisions keeping pace with emerging social, economic, and political developments. Indian courts, and particularly the Supreme Court, have widely adopted this dynamic role, especially in cases related to fundamental rights, environmental law, gender justice, and the rights of marginalized groups.
One major and changing feature of judicial activism in India is the reliance on international law and foreign judicial precedents. The Indian judiciary has more and more looked towards international conventions, treaties, and decisions from foreign courts to assist and add depth to its judgments. Even though such sources are non-obligatory, they do possess persuasive weight and are usually called upon in order to provide wider meaning to constitutional doctrines, particularly where there is no relevant domestic legislation. This development is a reflection of India's adherence under Article 51(c) of the Constitution, whereby it promotes international law and the obligation of treaties.
This article seeks to examine how and why the Indian judiciary uses international principles of law and foreign court judgments in its decisions. It examines the strategic employment of global jurisprudence as a way to advance justice, bridge legislative gaps, or interpret basic rights in a progressive and expansive way. The research is centered on comparative perspectives from three leading jurisdictions — the United States, the United Kingdom, and South Africa — each of which has had a perceptible impact on Indian constitutional interpretation.
By examining key Indian cases where such foreign influences were evident, this paper will assess whether international borrowing strengthens India’s constitutional ethos or risks undermining indigenous legal principles. Ultimately, the goal is to evaluate the balance between national sovereignty and global legal interconnectedness in the functioning of a modern, activist judiciary.
Theoretical Framework
Indian judicial activism is rooted in certain founding values—democracy, constitutional morality, and transformative constitutionalism. Judicial activism, at its foundation, authorizes the judiciary to move beyond passive interpretation and play an active role in charting legal and social directions in line with constitutional objectives. In a living democracy such as India, where the Parliament at times might be slow to act, courts are called upon to play a critical role in enshrining democratic rights, particularly for the underprivileged and marginalized .
Constitutional morality is the adherence to the values and spirit contained in the Constitution—justice, liberty, equality, and fraternity. Judicial activism enables the courts to protect these values even when express law is silent or insufficient. The transformational constitutionalism doctrine made famous by the Supreme Court in Navtej Singh Johar v. Union of India captures the notion that the Constitution is a dynamic document that has to change with the times in order to root out inequality and advance human dignity . Courts thus become instruments of social transformation, most notably through public interest litigation (PIL), liberal interpretation of basic rights, and proactive steps into failures of governance.
In this regard, foreign precedents and international law, while not binding, are usually invoked as persuasive means by Indian courts. These sources assist Indian courts in interpreting ambiguous constitutional concepts such as "due process," "dignity," and "equality" in a universally consistent and morally progressive way. For example, the Supreme Court has referenced conventions like the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to support domestic constitutional provisions.
This strategy is clearly endorsed by Article 51(c) of the Indian Constitution, which instructs the State to "foster respect for international law and treaty obligations in the dealings of organised peoples with one another ."Even though Article 51 is part of the Directive Principles and is non-justiciable, courts have relied on this article to legitimize borrowing from international instruments and norms, particularly in human rights and social justice cases .
Use of International Law in Indian Constitutional Jurisprudence
Indian constitutional jurisprudence, over the years, has increasingly opened its doors to the application of international law, treaties, and foreign case law to inform judicial thought. International law is not binding on Indian courts if not codified through national legislation, yet it is strong in terms of persuading courts, particularly in the area of human rights. It has been relied upon by judges to supplement legal loopholes, interpret ambiguous constitutional provisions, and uphold progressive principles like dignity, equality, and liberty.".
The court's willingness to discuss international legal norms is both an expression of constitutional purpose and the court's role as a global actor in the enforcement of human rights. Article 51(c) of the Indian Constitution encourages the State to "foster respect for international law and treaty obligations." While the article is part of non-enforceable Directive Principles, courts have consistently quoted it to validate the inclusion of international legal norms in their rulings.
One of the very first and leading examples is Vishaka v. State of Rajasthan (1997), in which the Supreme Court issued guidelines on sexual harassment at work by explicitly drawing on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Where there is no domestic legislation, the Court held that international conventions which are not in conflict with fundamental rights and are in line with the spirit of their very nature must be construed into such rights. This practice has been followed in various judgements, including environmental rights, gender identity, children's rights, and access to justice.
Indian courts have also drawn upon the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) in determining the extent of fundamental rights under Part III of the Constitution. In Prem Shankar Shukla v. Delhi Administration, the Supreme Court used the UDHR and ICCPR to hold against handcuffing undertrial prisoners, upholding the primacy of human dignity and humane treatment.
The courts have also embraced a "soft law" style of constitutional interpretation. "Soft law" is a term used for international declarations, guidelines, and principles that are not legally binding yet have political and moral weight. Documents such as the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity have been cited in milestone cases like NALSA v. Union of India (2014). Even though the Yogyakarta Principles are not a treaty, they were utilized for aiding the Court's acknowledgment of transgender rights, advocating inclusivity, dignity, and non-discrimination.
The Indian judiciary's leaning towards international law is an example of a pragmatic and forward-looking conception of its role. It attempts to synch domestic law with international standards of human rights, especially when these standards appeal to the constitutional dynamics of transformation. In this way, Indian courts present themselves as not merely interpreters of the national constitution but also as willing contributors to the global constitutional debate.
But it is selective and circumspect—international norms are borrowed only where they coalesce with constitutional values and do not conflict with the law of the land. This prevents harm to India's sovereignty while at the same time enriching domestic jurisprudence through international eyes.
Case Analysis: Indian Judgments with Foreign/International Influence
Indian courts have frequently referred to international conventions and extraterritorial court rulings to enhance the meaning of the Constitution, especially with regards to issues related to fundamental rights and social justice. This part examines five influential Indian judgments which reflect how foreign and international sources have been used as persuasive authority.
1. Vishaka v. State of Rajasthan (1997)
In Vishaka v. State of Rajasthan, the Supreme Court dealt with the question of sexual harassment in the workplace in the lack of any domestic legislation. The Court established guidelines to safeguard women based on Articles 14, 15, 19, and 21 of the Constitution. In so doing, the Court extensively used CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which India had signed up to in 1993.
The Court stressed that international conventions which are not repugnant to fundamental rights should be read into the domestic law. The Court ruled that "any international convention, when not inconsistent with the fundamental rights and in harmony with its spirit, must be read into those rights."
This line of reasoning is consistent with the U.S. Supreme Court's handling of sexual harassment, particularly in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), where the Court acknowledged that sexual harassment might indeed be a form of discrimination under Title VII of the Civil Rights Act. The Indian Court embraced a similar philosophy—viewing workplace harassment as a constitutional rights violation, thus aligning Indian law with changing international norms.
2. National Legal Services Authority (NALSA) v. Union of India (2014)
In NALSA v. Union of India, the Supreme Court granted the rights to transgender individuals to self-identify their gender. In a path-breaking judgment, the Court decreed that transgender persons have the right to fundamental rights under Part III of the Constitution.
Among the primary international instruments mentioned was the Yogyakarta Principles, a collection of soft-law principles interpreting international human rights law on sexual orientation and gender identity. The Court recognized these principles in spite of their non-binding character, further supporting the perception that international norms can inform constitutional interpretation where they advance dignity and equality.
The Court also borrowed from South African jurisprudence, specifically the National Coalition for Gay and Lesbian Equality v. Minister of Justice, in which the Constitutional Court held sodomy laws to be unconstitutional. Similar to South Africa, India embraced a revolutionary constitutional style that endeavors to secure and empower marginal communities by means of progressive judicial construction.
3. Justice K.S. Puttaswamy v. Union of India (2017)
In Justice K.S. Puttaswamy v. Union of India, the Supreme Court with a unanimous verdict identified the right to privacy as a basic right under the Constitution. The Court pursued a rights-oriented approach based on a broad range of foreign precedents to ascertain the ambit and significance of privacy.
Among the cited decisions were US cases like Griswold v. Connecticut, 381 U.S. 479 (1965), where privacy right had for the first time been enunciated in the context of marital contraception, and Roe v. Wade, 410 U.S. 113 (1973), which generalized this right to reproductive choice. The Indian Court repeated the sentiment that privacy is inherent in dignity and autonomy of persons.
Moreover, the Court invoked UK case law, such as Campbell v. MGN Ltd., [2004] UKHL 22, whereby the House of Lords protected Naomi Campbell's privacy from intrusion by the press. These international cases assisted in enabling the Indian Supreme Court to give a wide-ranging framework of privacy, and affirming its necessity in a democratic society.
4. Naz Foundation v. Government of NCT of Delhi (2009)
In Naz Foundation, the Delhi High Court legalized consensual same-sex relations among consenting adults by reading down Section 377 of the Indian Penal Code. The decision referred to international human rights principles and rulings from foreign courts which focused on equality and dignity.
The Court drew heavily upon the judgment of South African Constitutional Court in National Coalition for Gay and Lesbian Equality v. Minister of Justice to contend that criminalization of homosexuality contravenes fundamental rights to equality, dignity, and privacy. It also cited UK case law, particularly Dudgeon v. United Kingdom, a seminal judgment by the European Court of Human Rights (ECHR) which held that anti-sodomy legislation was incompatible with Article 8 (right to private life) under the European Convention on Human Rights.
This cross-jurisdictional citation brought to the fore the international trend towards the decriminalization of homosexuality and bolstered the Court's position on upholding minority rights in India.
5. Joseph Shine v. Union of India (2018)
In Joseph Shine v. Union of India, the Supreme Court declared Section 497 of the IPC, criminalizing adultery, unconstitutional. The Court ruled that the law was discriminatory against women and violated Articles 14, 15, and 21 of the Constitution.
To buttress its argument, the Court quoted the international agreement on decriminalizing adultery. The judgment took note of the European Court of Human Rights ruling in Stübing v. Germany, where the Court upped the stakes on personal freedom in private sex lives. The Indian Court also considered the international perspective under CEDAW, which upholds gender equality and encourages the abolition of all discriminatory legislation.
The Court overturned the paternalistic presumption that women are property of their husbands and championed individual choice, aligning itself with international standards on gender equality and autonomy.
Comparative Insights: US, UK, South Africa
The increasing dependence of the Indian judiciary on international law and foreign cases is guided by constitutional ideologies in various jurisdictions. Of the most significant influence are the United States, the United Kingdom, and South Africa—each providing distinctive interpretive paradigms that speak to India's own constitutional venture.
United States: The Living Constitution Doctrine
The United States Supreme Court has created a living interpretive methodology known as the "Living Constitution" doctrine. This postulates that the Constitution should change with altered societal norms and values, instead of being stuck in its original framers' intentions.
In Roper v. Simmons, 543 U.S. 551 (2005), the U.S. Supreme Court declared executing children to be contrary to the Eighth Amendment. The Court based its ruling not only on national grounds but also in terms of evolving standards of decency as expressed through international norms and comparative law. Indian judges have applied this "living document" approach in cases such as Puttaswamy, in which the Constitution was interpreted in response to evolving new challenges of society, such as online privacy.
United Kingdom: Proportionality and the Human Rights Act
In the United Kingdom, constitutional interpretation is significantly dominated by the Human Rights Act, 1998, which reflects the European Convention on Human Rights (ECHR) in domestic law. A central doctrine constructed under this regime is proportionality, by which courts are able to examine whether state action that restricts rights is necessary and justified in a democratic society.
The R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26 case reaffirmed that the courts have to consider whether state interference with rights is proportionate to the objective sought. Indian courts have embraced a similar proportionality test in privacy, speech, or personal liberty restriction cases, such as in Modern Dental College v. State of Madhya Pradesh, where the Court considered whether state regulation of education was proportionately infringing on fundamental rights.⁵
South Africa: Transformative Constitutionalism
South Africa's post-apartheid Constitution is one of the most vivid articulations of transformative constitutionalism, a theory which sees the Constitution as an instrument of radical social transformation and correction of past injustices. In this approach, judges must interpret the Constitution so as to advance dignity, equality, and freedom.
In Minister of Home Affairs v. Fourie, 2005 (1) SA 524 (CC), the Constitutional Court of South Africa acknowledged same-sex marriage rights, proclaiming in clear terms that the Constitution had to "transform society in a democratic, egalitarian direction." Indian judges have called on this theory—particularly in NALSA and Navtej Singh Johar—to validate broad, expansive readings of rights.
Conclusion
This article has discussed the changing role of judicial activism in India, specifically its engagement with international law and foreign jurisprudence. In a thorough examination of landmark cases like Vishaka, NALSA, Puttaswamy, Naz Foundation, and Joseph Shine, it can be seen that Indian courts have selectively and judiciously borrowed international human rights standards and foreign court judgments in order to bridge legislative loopholes, interpret fundamental rights, and enforce constitutional ideals.
The comparative learnings from the United States' "living Constitution", the United Kingdom's proportionality test, and South Africa's transformative constitutionalism demonstrate a common commitment to dynamic, progressive juridical reasoning. Indian judges have also borrowed these doctrines in terms that are consonant with the Indian constitutional ethos, particularly in promoting dignity, equality, and justice.
Instead of weakening Indian constitutionalism, this international borrowing has actually fortified it. By basing themselves on internationally accepted norms, the judiciary reaffirms India's place in the liberal democratic community and ensures domestic rights are interpreted consonant with today's values. Notably, courts have exercised a judicious balance—borrowing only if such norms are consonant with the text, structure, and ethos of the Indian Constitution.
In the future, judicial activism rooted in international cooperation will remain essential. As India confronts sophisticated legal challenges—ranging from privacy in data to environmental justice—the interaction with transnational legal concepts will allow the judiciary to remain sensitive and pertinent. International law, utilized with circumspection and constitutional compliance, can make Indian courts powerful enough to fulfill their transformative role and safeguard the rights of all citizens in a globalized era.