Judicial Activism and Overreach

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Judicial Activism and Overreach-Image




GS-II: Polity

1 min read

Prelims: Indian Polity and Governance – Constitution, Political System

Mains: Structure, Organization and Functioning of the Executive and the Judiciary


What is meant by Judicial Activism and Judicial Overreach?

  • Judicial Activism: Judicial activism refers to the idea that judges should actively interpret and shape the law rather than simply applying it as it is written. 
    • This can involve interpreting the law in a way that expands or limits certain rights or protections or that resolves legal disputes in ways that are not explicitly provided for by the law.
  • Judicial overreach: It refers to the situation where a court or judicial body exceeds its legal authority or jurisdiction, typically by making decisions that should properly be made by other branches of government.
    • Judicial overreach can be controversial, as it can lead to conflicts between the different branches of government and can undermine the separation of powers which is an important principle in many democratic systems. 


What are some cases relating to Judicial activism and Judicial Overreach in India?

Examples of Judicial Activism:

  • Kesavananda Bharati v. State of Kerala (1973)
    • In this case, the Supreme Court held that the power of the government to amend the constitution was not unlimited and that there were certain "basic features" of the constitution that could not be amended. This decision established the concept of the "basic structure".
  • Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court held that the right to personal liberty guaranteed by the constitution included the right to travel abroad. 
    • The court also held that the government could not restrict this right without following due process of law.
  • Vishaka v. State of Rajasthan (1997): In this case, the Supreme Court issued guidelines for the prevention of sexual harassment at the workplace in the absence of any specific legislation on the issue. 
  • National Legal Services Authority v. Union of India (2014): In this case, the Supreme Court recognized the right to self-identify one's gender and held that transgender persons have the right to be treated as their self-identified gender rather than their assigned gender at birth. 

Examples of Judicial Overreach:

  • Shyam Narayan Chouksey v. Union of India (2016): The Supreme Court, in this case, made it mandatory that all the cinema halls in India shall play before the feature film starts.
    • It was argued that this direction goes beyond the Prevention of Insults to National Honour Act 1971, which says that no film, drama or show of any sort can have the National Anthem as part of the show.
  • Liquor ban (2017): The Supreme Court, ruling on a Public Interest Litigation(PIL) which was about road safety in 2017 had banned the sale of liquor at retail outlets, as also in hotels, restaurants, and bars, that are within 500m of any national or state highway.
    • These orders were felt to be against the spirit of the separation of powers given by our constitution. It was argued that it was an administrative matter where the decision rested with state governments.
  • Arun Gopal v. Union of India (2017): The Supreme Court had fixed timings for setting off fireworks during Diwali and had banned the use of fireworks that are not environmentally friendly, despite there being no legal basis for these restrictions.
  • M.C. Mehta v. Union of India (2018): The court declared invalid Rule 115(21) of the Central Motor Vehicle Rules, 1989, by mandating that no BS-4 vehicles can be sold after March 30, 2020, and only BS-6 vehicles can be sold after that date.


What is the significance of Judicial Activism?

Some of the potential merits of judicial activism in India include:

  • Protecting individual rights: Judicial activism can help to protect the rights of individuals and minority groups by challenging laws and actions that discriminate against or oppress these groups.
    • Example: The Supreme Court ruling in the Vishakha case(1997) led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • Promoting the rule of law: By reviewing and potentially invalidating laws and actions that are deemed to be unlawful or unconstitutional, judicial activism helps to ensure that the government operates within the bounds of the law.
  • Strengthening democracy: Judicial activism can help to prevent the abuse of power by the government and promote accountability and transparency in the decision-making process.
  • Promoting social change: Judicial activism can help to bring about social change by ruling on cases that address important social issues and by setting legal precedents that shape the direction of future laws and policies.
    • Example: In National Legal Services Authority v. Union of India (2014) the Supreme Court recognized the right to self-identify one's gender. It led to enacting the Transgender Persons (Protection of Rights) Act, 2019.
  • Interpreting the Constitution: Judicial activism can also involve judges interpreting the Constitution and applying it to new situations and issues that were not addressed when it was written. This can help ensure the Constitution remains relevant and responsive to changing circumstances.
  • Providing a check on the other branches of government: Judicial activism can serve as a check on the power of the legislative and executive branches, ensuring that they do not exceed their constitutional authority or violate the rights of individuals.
    • Example: In the Keshavananda Bharati case, the Supreme Court held that the power of the government to amend the constitution was not unlimited and that there were certain "basic features" of the constitution that could not be amended.


Why is Judicial Overreach under criticism?

When judicial overreach occurs, it can have the following impacts on the functioning of the state machinery:

  • Undermines separation of power: Judicial overreach can undermine the separation of powers and the balance of power among the branches of government. This can lead to a breakdown of the checks and balances essential to maintaining a healthy democracy.
  • Delays in the justice delivery system: As the judiciary takes on more responsibilities, it can lead to a backlog of cases and delays in the justice delivery system.
  • Overburden on the judiciary: When the judiciary takes on more responsibilities, it can lead to overburden on the judiciary and burnout of judges.
  • Lack of accountability: Some argue that when the judiciary takes on more responsibilities, it can lead to a lack of accountability. There may be no clear mechanism for holding the judiciary accountable for its actions.
  • Lack of expertise: Judges may not have the necessary expertise or knowledge to make informed decisions on complex policy issues. This can lead to decisions that are not well-informed or that do not take into account all of the relevant factors.
  • Can lead to an unstable justice delivery system: Judicial overreach can also create confusion and uncertainty about the law and the role of the courts. 
  • Lack of certainty and predictability: When the judiciary makes laws and policy decisions, it can lead to a lack of certainty and predictability in the legal system, making it difficult for individuals and businesses to plan for the future.
  • Hampers public trust: Judicial overreach can lead to public mistrust of the courts and the legal system. If the courts are perceived as overstepping their authority or acting in a partisan or biased manner, it can erode public confidence.


What is Judicial Restraint and why is it important?   

Divisional Manager, Aravali Golf v. Chander Hass & Anr. (2007): In this case, the Supreme Court asked the subordinate courts to exercise judicial restraint. It was held that each organ must respect other organs as per the doctrine of separation of powers. The Court also laid down two crucial functions of judicial restraint:

  1. To encourage equality among the three branches by minimizing inter-branch interference by the judiciary. 
  2. To protect the independence of the judiciary. 

The former Chief Justice of India (CJI), Justice A.S. Anand, discussed judicial restraint in a public lecture. 

  • He said that judges must be self-disciplined while discharging their judicial functions. The worst result of judicial activism is unpredictability. There may come a time when judges may issue directions as per their personal fancies. Hence, judges must exercise judicial restraint so that judicial activism does not become judicial adventurism, an extreme form of judicial activism.

To achieve judicial restraint following steps can be taken:

  • Ensuring accountability:  Ensuring that judges are held accountable for their decisions and that they are transparent in their reasoning and methodology. This can be achieved through judicial review.
  • Following code of conduct: Judicial codes of conduct and ethics can help to ensure that judges act impartially and adhere to principles of judicial independence and integrity.
  • Increasing diversity in the judiciary: Promoting diversity and inclusivity within the judicial system. This can involve ensuring that the makeup of the judiciary reflects the diversity of the community it serves and that judges are selected through a more transparent process.

To strike a balance between the two, it is important to consider the specific context and circumstances of each case and to ensure that the judiciary can fulfill its role as a check and balance on the other branches of government while also being responsive to the needs of society.




Previous Year Questions



Q) Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context, justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities. (2020)


Q) Critically examine the Supreme Court’s judgment on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (2017)


Q) Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy. (2014)

Frequently Asked Questions (FAQs) related to the topic


Q) What is Judicial Review?

Judicial review is interpreted as the doctrine under which executive and legislative actions are examined by the judiciary. In India, the powers of judicial review are delegated under Article 226 and Article 227 of the Constitution for the High Courts and Article 32 and Article 136 for the Supreme Court. 


Q) What is judicial legislation?

Judicial legislation refers to the act of a court creating or interpreting laws. This can occur when a court strikes down a law as unconstitutional, interpreting a law in a way that expands individual rights, or making a decision that has a significant impact on society. It can also happen when a court creates new laws or legal principles through the common law process.