February 18, 2019

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The Two Faces of Judicial Activism

- -, Corporate Legal Team [ Ambuja Cement ]



We live in a democratic society where the Legislature, Executive, Judiciary and Media are considered the four “pillars” of our society. Each pillar has a significant role to play within its domain. Legislature is responsible for making laws; Executive is responsible for implementing the laws; Judiciary is responsible for administration of justice by ensuring that these laws are implemented in the right perspective and Media is responsible for ensuring transparency in the working of the other three pillars of our society.

Though the roles and responsibilities of each pillar appear to be well-defined, there are instances of interference or encroachment in other’s territories, either due to ignorance or due to anxiety of claiming superiority over the others. While in the former case, the interference is not as serious, in the latter case, a situation of show-down is imperative at one stage or the other. The outcome of such situations is not always very pleasing and healthy for the overall health of democracy where each pillar is supposed to respect the others’ responsibilities and work within its own defined territory.

This is more so the case of a country like India where each pillar is considered equally important and powerful unlike some other countries where either the Judiciary is more powerful or the Legislature dominates the others. The Constitution of India envisages separation of power among the various organs of the government and therefore does not offer supremacy to any one pillar, rather the Constitution itself assumes supremacy over all others. The lawmakers make laws within the framework of the Constitution and Judiciary is mandated by the Constitution to scrutinize the acts of the Legislature and the Executive and prevent them from overstepping the boundaries set by the Constitution. Hence, the Judiciary acts like a guardian in protecting the fundamental rights of the people from infringement by any organ of the state.

Role of the Judiciary

The Judiciary is the system of courts that interprets and applies law in the name of the state and also provides a mechanism for the resolution of disputes. Under the doctrine of separation of powers, the Judiciary generally does not make statutory law (which is the responsibility of the Legislature) or enforce law (which is the domain of the Executive), but rather interprets law and applies it to the facts of each case. However, the judiciary does make common law, setting precedent for other courts to follow.

In many jurisdictions, the judicial branch has the power to modify laws through the process of judicial review. Courts with the power of judicial review may annul the laws and rules of the state when it finds them incompatible with any primary legislation, provisions of the constitution or international law, etc.


Judicial Activism

In layman terms, judicial activism means interference by the Judiciary in the Legislative and Executive spheres with a view to further the ends of justice, especially for the weak and disadvantaged sections of society. It involves the Supreme Court (SC) and high courts donning the hat of activism and compelling other organs to perform their functions. The reason for prompting the courts to indulge in judicial activism, by stepping, in is to ensure that Executive inaction does not result in the Legislature’s laws being improperly implemented or worse, not being implemented at all.

To put forth some notable examples of judicial activism, the Supreme Court, by devising the doctrine of basic structure in the Keshavananda Bharati case acted as a guarantor of the Constitution and by bringing Article 356 of the Constitution (President’s Rule) under judicial review in the case of S.R. Bommai, emerged as the protector of federalism.

However, there are instances when even the best intentions backfired. For instance, the Judiciary, in an attempt to strengthen fundamental rights, institutionalized the process for public interest litigations (PILs). However, it has been noticed that while PILs are an effective tool to resolve issues pertaining to the environment, human rights, etc., there are several occasions when frivolous litigations are filed in disguise as PILs. This tool is also employed as a facade by corporates to exercise rivalry.

Some other such examples of judicial activism misfiring or overstepping its domain include the SC directing the Centre to conduct a common entrance exam for admission to medical courses in violation of the doctrine of separation of powers, banning diesel cabs in Delhi leading to widespread public protests, making it compulsory to play the national anthem in theaters, ordering cuts in movies, thereby taking on the role of the censor board and many more.

In July 2017, a two judge bench of the SC, while dealing with an issue arising out of Section 498A of the Indian Penal Code, had observed that a large number of false cases were filed under Section 498A alleging harassment of married woman due to which their husbands and their family members suffer for years. Consequently, the bench issued certain guidelines to regulate investigation, arrests, etc. in such family disputes. However, within three months of this judgment, a three judge bench of the SC observed that it was not in agreement with the earlier judgment as the formulation of guidelines fell in the legislative sphere and as such indicated that it would revisit the earlier verdict which reduced the severity of the anti-dowry law.

The above observation of the three judge bench of the SC is another instance where the SC has attempted to venture into the legislative territory by re-writing laws which fall in the legislative domain. Such instances have attracted criticism from all directions, particularly, the Legislature, which felt that the courts have been exceeding their authority in interpreting laws by becoming an extra-constitutional law making body.



Though judicial activism has served many noteworthy purposes in the field of human rights, environmental protection, etc., there have also been instances of judicial activism becoming overreach on more than one occasion. This fact is acknowledged even by the Supreme Court as it had observed on several occasions that judges must know their limits and not try to run the government. There is a broad separation of powers under the Constitution and each organ/pillar must have respect for the others and not encroach into others’ domain for a smooth functioning of the democracy. If all pillars of our democratic society, including the Judiciary, manage to strike a fine balance, there will be no needless confrontations among the four pillars of our society, no abuse of the concept of judicial activism, and the dispensation of justice, in the true perspective, will be a reality.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.


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