Karan Mehta
Judicial activism plays a significant role in protecting rights of the citizens, addressing executive failures and rendering justice in the society. The scope of Judicial activism is wide and often involves interpreting the Constitution, environment protection cases, women’s and children’s rights, human rights etc. The Concept of Judicial activism was derived in the United States of America, where this term was given by Mr. Arthur Schlesinger Jr. in 1947. In India, this concept has evolved over the years. The rise of Judicial activism came in the 1970s, where the judiciary addressed various issues like legislature failures, violation of basic structure of the constitution, executive inefficiencies etc. The efforts of judges like Justice P.N. Bhagwati, Justice Krishna Iyer, Justice Y.V. Chandrachud who gave prominent judgments like Kesavnanda Bharati[1], Maneka Gandhi[2] etc. to uphold justice and protection of the Constitution. The development of Judicial activism has been facilitated by India’s two unique constitutional Jurisprudence mechanisms: Namely Article 142 and Public Interest Litigation. The rise of PILs has also brought a transformation by allowing courts to entertain matters pertaining to matters affecting collective rights, social issues and executive failure. Simultaneously, Article 142 empowers the Supreme Court to pass any order to do complete justice in any case. These tools enable the judiciary to address the societal issue where the legislature and executive have failed to respond.
Professor Faizan Mustafa in his piece for The Hindu, mentioned that to overcome the crises of legitimacy for its pro-government decisions during the Emergency, the Supreme Court revolutionized the doctrine of locus standi and initiated the Public Interest Litigation. However, has the Supreme Court really become a nuclear missile, with its judges having no accountability? he added. Are we in the midst of civil or religious war and Justice Sanjiv Khanna, in his short tenure as Chief Justice of India, is to be blamed for this? Is judicial review anti-democratic?” Has the court misused its powers under Article 142, which provides for “complete justice”? It no more asks petitioners what right of theirs has been violated but rather whose right has been violated. In the process, it has helped the prisoners who were blinded by needles being pierced in their eyes; paying compensation for the custodial deaths and upholding rights of workers etc.[3]
In India’s evolving Constitutional landscape, Judiciary has taken up an assertive role, where it does not only interpret the unconstitutional laws, but also directs executive actions and steps into policy formulating matters. The doctrine of separation of powers is essential in functioning democracy. The three organs of the democracy are anticipated to function independently without any interference of each other, the concept of checks and balances ensures that the failure or dominance of one branch can be addressed and corrected by another. When courts begin to shape policies, override administrative decisions, and step into policy formulation, it raises serious concerns about democratic accountability, legitimacy and erosion of institutional specialisation. These issues have expanded the Judiciary’s influence beyond its traditional role which raises concern of Judicial overreach and institutional imbalance.
Constitutional framework:
Judicial activism attains its authority from various provisions laid down in the Constitution of India. Article 50 of the constitution, which is part of Directive principles of state policy mandates that “State shall take measures to separate the judiciary from the executive branch in public services”. It plays a crucial role in Independence of judiciary and states that judicial bodies should be independent of executive influence. It also ensures that the judicial system gives fair and unbiased decisions. Though the doctrine of separation of powers and system of checks and balances are not clearly outlined in the constitution, various Articles clearly define the role and importance of all the three organs. As far as the legislature or executive powers are concerned, Article 124 of the constitution states that, the President of India has the power to appoint the judges of the higher courts and also have the power to establish and define the structure of the Supreme Court. The judiciary also has been given the power of Judicial Review under Article 13, 32, 226 and 246 of Indian Constitution. Article 13 has conferred the power of the High Courts as well as the Supreme Court to strike down a law or actions of legislative and executive branches that are unconstitutional and are against basic structure of the constitution.
On many occasions, Judicial activism has managed to shape different policies on the issues that were unheard before. The judiciary under doctrine of separation of powers is supposed to interpret the laws which are enacted. However, under the concept of Judicial review, the courts cannot direct the executive branch on how a policy should be framed or introduced. The courts have the power under judicial scrutiny if they are arbitrary or unconstitutional in nature. It is very true that Judicial Review and the Basic Structure doctrine aims to protect the Constitution. This perspective often invites criticism for the damages it may cause. Further, lawmaking is primarily the function of the Legislature, which is democratically elected and accountable to the people. Whereas the Judiciary’s role is to interpret and apply those laws.
Judicial overreach has the potential to disrupt institutional balance, decrease policy flexibility, and spark political backlash around the world[4]. Legal thinkers like Dr. M.P. Jain opined that judicial review is part and parcel of our constitutional package[5]. The Indian judiciary is often criticized for judicial overreach, with several instances cited as evidence of its increasingly assertive stance. This criticism is frequently echoed even within the legal system, particularly by politicians and advocates of the positivist view of law. Such instances may disrupt the balance of powers, weaken democratic accountability, create policy uncertainty, erode public trust, and affect the smooth operation of democratic institutions.[6]
Recent cases of Judicial Activism:
The Present Chief of Justice of India, Justice B.R. Gavai, recently gave an interview where he gave a statement that, “Judicial activism should not turn into Judicial terrorism.[7]” He is of the opinion that, in many areas where the Judiciary does not have jurisdiction, they should not give their opinions on the same. There are many cases where the Hon’ble Supreme Court is seen overreaching from their domain and given verdicts. In their defense, the judiciary has argued that they have stepped in where legislature and executives have failed in performing their duties. However, there are cases on environment protection, political or any contemporary issues where the judiciary might not possess expert knowledge. The Judiciary still steps in and issues guidelines on the same, it can threaten the spirit of the constitution and undermine the doctrine of separation of powers. Under this concept of Judicial activism, the courts have power under Article 142. Article 142 is a unique provision. It grants the Supreme Court the power to pass any order necessary to secure complete justice. There are many recent judgements, where the courts are seen using their discretionary powers under Article 142 and stepping in the domain of other pillars of democracy and passing the order. Furthermore, we will analyse each case where the critics have argued that the Judiciary decision in that case was overpowering other two pillars of democracy.
- Anoop Baranwal V. Union of India: The judgement of Anoop Baranwal V. Union of India (2023[8]) has been a subject of both admiration and concern for a democratic nation. From a critical point of view, it reveals significant constitutional flaws and hampers institutional harmony and freedom. In this case, the Supreme Court held that appointments of Chief Election Commissioner and election commissioners must be done by the Prime Minister, Leader of the opposition and the Chief Justice of India until Parliament enacts a law under Article 324 (2). Although this was a temporary measure, the court’s legal reasoning raises important questions. The constitution explicitly mentions that the appointments will be made by the President subject to Parliamentary law. By setting up the committee including the judiciary, there is a violation of settled constitutional principle. The judgement does not interpret the article 324 (2), it creates a selection mechanism and sets a precedent for judicial interference in legislature and executive domains. While the court’s intention is to secure electoral independence, the inclusion of the CJI in an executive decision-making body blurs institutional boundary.
The main task of the judiciary is to review the decisions of the legislature and not to frame the policies. This compromises the structure of separation of powers and creates a conflict of interest. This judgement also received criticism from eminent personalities in the legal domain. Former SC Judge Deepak Gupta emphasized that the court acted more like a policy-maker than an interpreter of law. This judgement also received a backlash from a political point of view. The Parliament enacted the Chief Election Commissioner and other Election Commissioners (appointment) act, 2023, in which they removed the position of CJI from the selection committee. The Parliament rather than adopting the courts guidelines, reduced the judicial participation in appointments altogether. This move by the parliament weakened institutional independence and eroded the credibility of courts. This move of the Parliament by enacting such legislation invited several petitions challenging the constitutional validity of the act and not the legislature not following the precedent set by the case of Anoop Baranwal. These consequences should caution the judiciary that it should correct the legislature and executive failures by not overstepping from its own constitutional limits.
- State of Tamil Nadu v. Governor of Tamil Nadu: The TN governor case[9] came into limelight in the year 2023 when DMK led Tamil Nadu Government filed a petition under Article 32 of the constitution stating that the governor R.N. Ravi has been delaying the assent on the bills passed by the state government indefinitely. This case raised many important constitutional questions on the limits on decisions of the governor and judicial authority as well. The main contention of the TN government was that the Governor’s inaction was an attempt to paralyse the government. In response, the Supreme Court ruled that under Article 200, it is the constitutional duty of the governor to act “as soon as possible” on the bills sent by the state legislature and he cannot keep bills pending indefinitely.
The court directed the Governor by setting up a timeline of three months to act on the bills which sparked a new debate on separation of powers and constitutional duties of judiciary. The most important criticism of this judgement is that the timeline given to the governor is an amendment under Article 200 of the constitution. The power of amendment of the constitution lies with the parliament under Article 368. This act is considered as an act of the judiciary beyond the powers given by the constitution. Another criticism is that such an important issue shall be settled by a constitutional bench under Article 145 (3) and not by a division bench. The use of Article 142 in the name of rendering “complete justice” has been faulted as it was the court’s failure to not consult the states before giving their verdict clearly hampers the federal structure of India. Legal analysts think that this decision is seen as “Judicial supremacy” which Dr. B.R. Ambedkar was thought of as a threat. In conclusion, this decision would lead to the governor acting under Judicial pressure as the Supreme Court has given powers to the state government to approach the higher courts under the writ of mandamus if there is any kind of inaction from the side of the governor. The SC ruling seeks to reinforce constitutional accountability but also raises concern about institutional overreach.
- State of Tamil Nadu v. K. Balu & Anr[10].: This SC’s judgement has emerged as a landmark instance of judicial intervention in public safety policy. In this case a PIL was filed raising concerns about the increasing number of road accidents on state and national highways due to alcohol consumption by drivers. The court, relying on the statistics and report by the ministry of road transport and highways, ordered a prohibition on the sale of alcohol within 500 meters of highways. The court’s reasoning was concerned about the right to life under Article 21 where they prioritize public safety over economic interest. The critics argue that the verdict is against the doctrine of separation of powers, as the court had entered into a policy formation domain, which is the role of legislative and administrative departments. Justice Chandrachud later noted in the judgement that, “courts are not equipped to handle matters of economic policies”. Secondly, the regulations on alcohol fall under Entry 8, list II (state list) which is the role of state legislature. The court’s decision, framed as public interest, has overstepped its domain and given their verdict.
Conclusion:
Judicial activism is used as a historical instrument in upholding constitutional rights and promoting social justice. It must be examined through the lens of constitutionalism and institutional design. However, when courts begin to intervene in legislative and administrative functions, it challenges the doctrine of separation of powers resulting in judicial overreach. Recent cases reflect a growing trend of the judiciary stepping beyond its role. Although it is done in good faith, it potentially leads to overstepping from its jurisdiction. There should be a balanced approach followed by the judiciary that remains the guardian of the constitution and protects the rights and does not assume policy making functions. It is vital to preserve constitutional harmony and democratic accountability. The Judiciary is the weakest wing of the government. The check on constitutionality of laws and judicial activism are the pillars of trust of the judiciary. It is not the administration of justice but the delivery of justice to the people of the country while working within the bounds of the law of the land to verify the inappropriate or unreasonable actions of the other wings of government. The judges are bound to interpret the laws in a fair, impartial, unbiased and open minded way for judicial activism.[11]
[1] Kesavananda Bharati v. State of Kerela (1973)
[2] Maneka Gandhi v. Union of India (1978)
[3] Faizan Mustafa, Is India Witnessing Judicial Despotism?, The Hindu, April 24, 2025
[4] Manishaben Solanki, Global trends in Judicial overreach, Judicial review Scope, limitation & overreach
[5] Jain, M.P. (2018). Indian constitutional law (8th ed.). LexisNexis
[6] Garima Pahwa, Balancing powers: Is judicial activism threat to democratic governance? Judicial review Scope, limitation & overreach
[7] 2025, June, 11, Judicial Activism should not turn into judicial terrorism, Bar & Bench
[8] Anoop Baranwal v. Union of India (2023)
[9] State of Tamil Nadu v. Governor of Tamil Nadu (2025)
[10] The State of Tamil Nadu v. K. Balu & Anr. (2016)
[11] Garima Pahwa, Balancing powers: Is judicial activism threat to democratic governance? Judicial review Scope, limitation and overreach.