This article on ‘Judicial Activism, Judicial Overreach and Judicial Restraint in India’ was written by Rishabh Tyagi, an intern at Legal Upanishad.
This article deals with the concept of judicial activism and its development in the Indian system. The concept itself finds its origin in the United States of America. Whenever there is dissatisfaction with the functioning of the legislative and executive parts of the system, the judiciary with the means of judicial activism tends to correct the disputed facts of law.
Where there is a blatant misuse of power by the legislative or executive, judicial activism becomes the bulwark of protection for the rights of the citizens of the country. Along with the positive side, this concept also holds an unwanted side of overreach on the part of the judiciary to interfere with the working of the other two organs.
Judicial Activism: Meaning and Concept
There is no generic definition per se for judicial activism. In simple terms, judicial activism means the active role of the judiciary in order to protect the rights and interests of the people from arbitrary functioning on the part of the legislature and executive. It is a literalistic approach on the part of judges to deal with any draconian provision within the premise of the Constitution.
It is the proactive role played on the part of judges as individuals and citizens of the country. In this process, the judiciary acts as a policy maker, thus going beyond its defined limits and stepping into the domain of legislature and executive.
Need for Judicial Activism
When there is a failure on the part of the legislature or executive to act, the moment calls for judicial activism. Traditionally, it was the sole responsibility of the legislature to make the laws and the judiciary had to follow such laws even if the rights of people were affected. The sole purpose of the judiciary was to ensure that such laws were applied without any deviation. But with the passage of time, the Courts have stopped remaining passive.
In India, post-independence there was a general feeling among the masses that the legislature and executive had failed to reach the level they were expected to in terms of their work. The judiciary was the sole door of hope for a citizen to get any sort of redress, as the legislative part had become apathetic towards the needs of the people. Under such conditions, there was the emergence of the activist approach of the judiciary.
Judicial Activism eventually flourished and got legitimacy among the masses. It became easier for a common citizen to approach the highest Court of the country in order to get a redressal. A postcard or even a letter for the purpose of initiating writs was accepted by the Court despite the inherent lacunae.
After the events that happened during the emergency rule from 1975 to 1977, there was a stark change in the judicial approach. During the emergency period, a plethora of instances of violations of fundamental rights were reported, but the judicial approach was conservative. After 1977 the approach changed. This change was owed mainly to the increase in the number of public interest litigations (PIL) and enhanced public aspiration from the institution.
The ignorance on the part of Parliament regarding its duties, the debasement of the democratic structure, rampant corruption in public institutions, and the increased emergence of PILs led to the need for the development and practice of judicial activism.
Manifestation of Judicial Activism
Articles 32 and 226 of the Constitution state that every individual has the right to approach the Supreme Court and High Court respectively in order to enforce his/her fundamental rights. These Articles have been liberally interpreted by the Court which has led to significant development in the domain of judicial activism. Following are the certain ways to invoke such power:
- Judicial Review: In our constitution, this concept has been adopted from the constitution of the USA. Under this, the legislative and executive actions can be put under the scrutiny of the judiciary. The Supreme Court has the power to review the constitutionality of any challenged law. If it passes the test of being within permissible limits of the constitution and basic structure, only then would its validity be upheld. Otherwise, it would be unconstitutional. This approach provides the power of checks and balances in the hands of the Court.
- PILs: This concept was introduced in our Indian system by Justice V R Krishna Iyer and Justice P N Bhagwati in the Fertilizer Corporation Kamgar Union case. They could be termed sentinels who developed this approach and stood to provide justice to the oppressed and poor. PIL means the filing of a suit in the Court in relation to a public interest of significant importance. In Bandhua Mukti Morcha vs Union of India, the Supreme Court stated that owing to the illiteracy, and social and economic backwardness of the majority of the population, the use of public interest litigation was justified. In the State of Himachal Pradesh vs A Parent of a Student of Medical College, it was stated by the Court that while dealing with PIL, the intention of the Court is to administer the rule of law in the society.
- Interpretation via International Provisions: In deciding a case, the Supreme Court may refer to those international provisions that would help to mandate the decision to respect the constitutional values and protect the rights of the citizen. In Vishakha vs State of Rajasthan, owing to the lack of provisions provided in the law, the Supreme Court referred to the various international conventions for women to give the appropriate guidelines. In Jeeja Ghosh v. Union of India, the Supreme Court shed light on the Vienna Convention on the law of treaties, 1963, according to which the country’s internal legislation shall be in line with the international commitment. In this case, rights of the disabled persons were reaffirmed.
One of the ideas that the makers of our constitution had was to separate the three organs i.e., legislature, executive, and judiciary. This intent can be seen in Articles 122 and 212 which state that Courts shall not inquire in proceedings of Parliament and legislature respectively. This line of separation is blurred when judicial activism comes into the picture. Due to underperformance and incompetence on the part of the legislature, judicial activism becomes an important trait, but this often creates friction between the legislature and judiciary.
Often the legislature accuses the judiciary of using its powers beyond their acceptable limits. In cases dealing with for example labour policy, environmental issues, etc., the proactive behaviour of the judiciary is a positive symbol. But in cases related to fiscal policy, the judicial intervention would be seen as an overreach of their powers. Such a clash would be counterproductive and weaken the two institutions instead of strengthening them. The arbitrary, frequent and excessive, intrusion of the judiciary into the domain of the other two parts is often termed judicial overreach.
The difference between judicial activism and overreach is significant for the proper functioning of the two separate systems. The appreciation of the doctrine of separation of power and supremacy of the constitution is of utmost importance to lay down a strong foundation.
Judicial overreach breaches a number of constitutional principles. Supremacy of law comes under jeopardy when the Court defies its constitutional working limits. It places itself above the law and gives orders and decrees as it deems fit, not within the democratic spirit. Unlike the legislature, they are not accountable to anyone and thus the practice of judicial overreach is harmful to the democratic premise of the country.
This concept comes as a solution to judicial overreach. On various occasions, the Supreme Court has highlighted the need to practice restraint in order to maintain the intricate balance of power between the three organs. The constitution mandates that each organ has its own domain to work on. So, the practice of restraint on the part of the Court would maintain the balance and equality among the three organs and also it would keep the independence of the judiciary intact.
In, S.R. Bommai vs UOI, the Supreme Court held that in cases involving a high level of political interest, there can be no judicial review. If the judiciary acts above the legislature, it will require the officials to be chosen by the people and they would need to administer like their legislative counterparts. So, judicial restraint is like an ancillary concept that is required for judicial activism to have its desired results.
There are no defined criteria as to when judicial activism must be used. Its usage would depend upon the circumstances and the needs of the case. Judicial activism has a positive side when the values of the Constitution, the rule of law, and the interest of the masses are protected by the judiciary. However, the usage of this tool must be within the power of the Court defined under the Constitution. The Court shall not be arbitrary in the usage of this concept and shall practice restraint in order to keep the fine balance and honour the spirit of our constitution.
- R Shunmugasundaram. (15 November 2022). Judicial activism and overreach in India, 72 Amicus Curiae (2007)
- Prof. Dr. Nishtha Jaswal and Dr. Lakhwinder Singh, Judicial Activism in India, Bharti Law Review (2017)
- Dr. Justice B.S. Chauhan, The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint, Tamil Nadu State Judicial Academy, available at: http://www.tnsja.tn.gov.in/article/BS%20Chauhan%20Speech-%20Lucknow.pdf
- Naveen Talawar, Judicial activism, iPleaders Blog, 5 August 2022, available at: https://blog.ipleaders.in/judicial-activism/#Notable_forms_of_judicial_activism
 Bandhua Mukti Morcha vs Union of India, A.I.R. 1984 S.C. 802.
 State of Himachal Pradesh vs A Parent of a Student of Medical College, (1985) 3 S.C.C. 169.
 Vishakha vs State of Rajasthan, AIR 1997 SC 3011.
 Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
 S.R. Bommai vs UOI, (1994) 3 SCC 1.