Authored By: Samiksha Sharma
Dr. B. R. Ambedkar National Law University, Sonepat
ABSTRACT
Particularly in situations characterized by legislative inertia and executive failure, judicial activism has become a defining characteristic of Indian constitutional practice. Courts have attempted to close the gap between constitutional ideals and social realities by liberalizing locus standi, interpreting fundamental rights broadly, and using creative remedial strategies. Such intervention has reinforced constitutional supremacy and strengthened rights protection, but has also raised concerns about institutional competence, democratic legitimacy, and the deterioration of the separation of powers. Judicial activism is examined critically in this article as a possible cause of institutional imbalance as well as a constitutional remedy.
INTRODUCTION
The Indian constitutional framework is based on a well-considered balance between the legislature, executive, and judiciary.1 Although the Constitution does not explicitly entrench a rigid doctrine of separation of powers, as institutionalized in the United States, it clearly provides a functional allocation of authority by interlocking clauses that divide responsibilities without excluding interdependence among institutions.2 This structural choice reflects the framers’ deliberate attempt to avoid both parliamentary absolutism and judicial supremacy, ensuring that no single organ becomes omnipotent. Legislative inertia, executive arbitrariness and episodic failures of constitutional morality, especially during the Emergency, generated great enforcement vacuums. It is against this backdrop that the judiciary took a more proactive role, widening its judicial review and developing new remedial mechanisms to defend the fundamental rights.
This phenomenon has been described as judicial activism, and it has emerged as one of the most debatable aspects of Indian constitutionalism. Even though the proponents consider it a constitutional correction in the face of democratic dysfunction, the critics consider it an institutional overreach that jeopardizes the doctrine of separation of powers and democratic legitimacy. The dilemma here is whether judicial activism is still grounded in the constitutional need or is in danger of becoming a de facto policy-making institution.
SEPARATION OF POWERS IN THE INDIAN CONSTITUTIONAL FRAMEWORK
The doctrine of separation of powers is embedded in the structural architecture of the Indian Constitution, even though it is not technically stated as a provision that is explicitly enforceable. The Indian framework reflects a functional and pragmatic separation, calibrated to meet the demands of a diverse and evolving welfare state. The Constitution shares power between the legislature, the executive and the judiciary in different, but related ways, where there is autonomy as well as accountability.
Parliament and the State Legislatures are endowed with legislative competence under Articles 245 to 255 that outline law-making powers in a federal system.3 Articles 72, 73, 74, and 162 are the main sources of executive power, which allow governance by administrative machinery with constitutional restrictions.4 Articles 124 to 147 institutionalize judicial power of the Supreme Court and Articles 214 to 231 the High Courts, with a guarantee of independence in the form of security of tenure and financial autonomy.5
Separation of powers has always been declared by the Supreme Court as a critical aspect of the Constitution. In Kesavananda Bharati v. State of Kerala (1973), the Court held that Parliament’s amending power under Article 368 is limited and cannot destroy the Constitution’s basic structure, of which separation of powers forms an integral part.6 This development locked in constitutional supremacy and avoided institutional fusion, which would weaken democratic governance. The principle was reaffirmed in Minerva Mills v. Union of India (1980), where the Court invalidated constitutional amendments that disproportionately strengthened executive authority at the expense of judicial review.7
Furthermore, Indian constitutionalism expressly allows overlap between institutions as a checks and-balances mechanism. This overlap is reflected by judicial review of the legislation and executive action under Articles 13, 32 and 226.8In Ram Jawaya Kapur v. State of Punjab (1955), the Court clarified that while executive power extends to matters upon which the legislature is competent to legislate, it remains subordinate to constitutional and statutory constraints.9 Such
articulation kept the executive flexible without any authorization of unaccountable governance. The separation of powers does not work as a barrier but rather as a normative rule that requires vigilance against institutional overreach. Its stability is not so much based on the rigidity of the text but rather on constitutional morality, self-restraint and respect for institutional competence.
JUDICIAL ACTIVISM: MEANING AND CONSTITUTIONAL EVOLUTION It is important to distinguish between judicial activism and judicial review. Although the concept of judicial review is an express constitutional requirement of Articles 13, 32, and 226, judicial activism refers to an approach adopted by the judiciary to give broad interpretations, allow relaxed procedural constraints, and develop remedies to constitutional rights that are otherwise not properly enforced by political institutions.
The historical background of judicial activism in India is closely associated with the post Emergency judicial introspection. During the 1970s, excessive judicial compliance with executive power led to the suspension of fundamental rights during the Emergency, showing the vulnerability of constitutional protection. The aftermath witnessed a conscious recalibration of judicial philosophy. Courts increasingly viewed themselves as guardians of constitutional morality
entrusted with the responsibility of preventing future democratic breakdowns. This shift is doctrinally anchored in Maneka Gandhi v. Union of India (1978), where the Supreme Court transformed the understanding of procedure established by law under Article 21.10 By insisting that procedure must be just, fair, and reasonable, the Court infused substantive due process into Indian constitutional law. It was an interpretive expansion decisively departing from formalism and forming the jurisprudential basis for rights-oriented judicial activism. The case also interconnected Articles 14, 19 and 21 into an integrated framework of rights and consequently expanded the judiciary’s capacity to scrutinize state action.
Judicial activism further manifested in the form of liberalization of locus standi as well as the development of Public Interest Litigation (PIL). In S.P. Gupta v. Union of India (1982), the Court dismantled traditional standing requirements, allowing public-spirited individuals and organizationsto approach courts on behalf of those unable to do so themselves.11 This development democratized access to justice and repositioned courts as institutional forums for addressing systemic rights violations.
Judicial activism, therefore, is best understood not as a monolithic doctrine but as a spectrum of judicial behaviour shaped by contextual necessity. While it is a constitutionally justifiable reaction to the failures of governance and denial of rights, it conversely borders on institutional overreach where courts substitute their policy preferences for democratically chosen policies.
JUDICIAL LAW-MAKING AND GOVERNANCE INTERVENTION
Judicial activism becomes most constitutionally contentious when courts move beyond interpretation and enforcement into the domain of normative rule-making and governance supervision. Although the process of adjudication under the Constitution always entails some form of creative interpretation, judicial law-making, especially in the form of binding guidelines and continuing mandates, provokes serious concerns regarding the legitimacy of the institutions, their accountability to the people, and the separation of powers.
The most commonly-mentioned example of judicial law-making in India is the case of Vishaka v. State of Rajasthan (1997).12 Faced with the absence of statutory protection against sexual harassment in the workplace, the Supreme Court developed comprehensive guidelines with reference to Articles 14, 15, 19, and 21. The Court rationalized its action as a one-time constitutional action that was to prevail until Parliament passed the proper legislation.
However, this can be an example of structural tension of judicial law-making as well. Although the guidelines were framed as interim, they operated as binding law for over fifteen years until the enactment of the Sexual Harassment of Women at Workplace Act, 2013. The case illustrates both the constitutional utility and the democratic discomfort associated with judicially crafted norms.
Judicial governance intervention is even more pronounced in Prakash Singh v. Union of India (2006), where the Supreme Court issued a series of structural directives aimed at reforming police administration.13 These consisted of the tenure of senior officers, setting up State Security Commissions and the separation of investigative and law-and-order activities. In contrast to the previous case, which dealt with an apparent legislative gap, this was connected with a long-term judicial involvement in executive administration at the federal level.
Judicial activism is heightened when the judiciary applies judicial supervision methods like continuing mandamus. Although sustained supervision can be reasonable to reduce executive inertia and increase accountability, it will turn courts into de facto administrators with no democratic mandate and institutional expertise.
CONSTITUTIONAL BENEFITS OF JUDICIAL ACTIVISM
Judicial activism in India has yielded substantial constitutional dividends, particularly in contexts where legislative inertia or executive indifference has resulted in persistent violations of fundamental rights. In its most justifiable form, judicial activism is a constitutional corrective, the filling of the gaps between normative constitutional commitments and social realities.
The expansion and effective safeguarding of fundamental rights have been considered to be the most prominent advantages of judicial activism. The purposive interpretation has seen the courts turn the Constitution into a living document that is responsive to evolving social circumstances. Such a transformative role is best demonstrated in how Article 21 was redefined to be inclusive of dignity, livelihood, health, and environmental protection. The judiciary has made constitutional guarantees practically relevant, particularly to marginalized and politically invisible groups, by identifying rights that were textually vague but substantively unfulfilled.
Judicial activism has also made justice more democratic by breaking down procedural barriers that lock out large segments of society from constitutional redress. Liberalization of standing by Public Interest Litigation made courts capable of taking into consideration collective and structural harms that cannot be effectively addressed by individual litigation. This transformed the judiciary into an institutional forum capable of addressing systemic injustice rather than merely adjudicating private disputes.
The other notable benefit is the catalytic effect of the judiciary in legislative and administrative reform. In a number of cases, the judiciary has prompted political branches to initiate far-reaching statutory guidelines following a long period of stagnation. Courts have been known to inspire democratic activity by establishing principles and interim norms in a judicial form, and proving that courts need not necessarily eclipse legislative supremacy permanently. This judicial activism role highlights its importance when done in balance, as to enhancing constitutional accountability as opposed to weakening it.
Judicial activism has also served the purpose of restraining executive excess and majoritarianism. Courts have played a counter-majoritarian role in constitutional crises, protecting the rights of minorities and curbing the arbitrariness of state authority. Through this, the rule of law has been strengthened, and constitutional supremacy has been maintained through judicial activism.
Lastly, judicial activism has led to the establishment of a culture of constitutionality as it entrenches the rights discussion at the popular level. Court decisions on equality, dignity, and liberty have influenced the societal norms and governmental behaviour outside of the litigation scenario itself. All these benefits prove the fact that judicial activism, under the condition of constitutional necessity and based on the idea of principled reasoning, can have a positive impact on the democratic process of government.
DEMOCRATIC AND INSTITUTIONAL RISKS OF EXCESSIVE JUDICIAL ACTIVISM
The same instruments that allow courts to defend rights and impose accountability may undermine the separation of powers and democratic governance. Such risks are contingent not on the judicial action as such, but rather on the failure to provide principled parameters to limit its scope and duration.
Democratic illegitimacy is the first issue that is linked to excessive judicial activism. Courts, unlike legislatures, do not obtain power through electoral mandate and are not structurally designed to participate in participatory policy-making. By directing substantive policy results as well as by applying continued administrative oversight, courts circumvent processes of popular debate, political responsibility, and budgetary priority that are inherent in democratic decision-making. This threatens to turn constitutional adjudication into a system of government that is insulated from popular control.
One of the associated risks is institutional competence. Courts lack the expertise and the administrative apparatus necessary to formulate and execute complex frameworks of policies. Judicially formulated guidelines, though normatively satisfactory, may be too rigid to fit local differences and changing conditions. Unreasonable judicial activism can also promote abdication by the executive and the legislature. Branches of the state can abdicate their constitutional duties when they expect the judiciary to substitute hard choices in the process of making decisions. In the long run, this process undermines democratic accountability, as elected officials transfer the consequences of the policy to the judicial system.
The judiciary itself has acknowledged these dangers. In Divisional Manager, Aravali Golf Club v. Chander Hass (2008), the Supreme Court cautioned that judges must not assume executive or legislative roles under the guise of activism.14 This kind of self-reflection brings out the consciousness of the judiciary on the dangers of unchecked intervention.
Finally, excessive activism risks politicizing the judiciary. When courts repeatedly adjudicate matters with significant political and policy implications, they may be perceived as partisan actors rather than neutral arbiters. This may undermine the belief of the people in the impartiality of the judiciary and may provoke backlash against the judiciary by the political institutions, thus putting the independence of the judiciary in danger. Such risks highlight the necessity of a sound philosophy that balances the power of the judiciary with institutional caution. Judicial activism should not be a common way of governance, but should be an extraordinary action that is performed out of constitutional necessity.
NEED FOR INSTITUTIONAL RESTRAINT AND DIALOGIC CONSTITUTIONALISM
Judicial activism as a constitutional challenge cannot be solved by deciding between complete inaction and uninhibited intervention. Instead, it needs a principled structure that maintains the role of the judiciary as a constitutional protector and does not interfere with the functional autonomy and political legitimacy of the political branches. Such a framework can be provided by institutional restraint, which is supplemented by a dialogic model of constitutionalism.
Judicial restraint is not to be confused with judicial passivity or constitutional default. Rather, it refers to a restrained use of judicial authority and is informed by constitutional text, structure, and institutional competence. Restraint permits courts to intervene decisively when fundamental rights are clearly violated, and political remedies have demonstrably failed. This concept is in line with the separation of powers as not a dogma, but a working protection against institutional overreach.
Indian constitutional jurisprudence offers some good illustrations of restraint. In S.R. Bommai v. Union of India (1994), the Supreme Court imposed meaningful limits on the misuse of Article 356 by articulating judicially enforceable standards, such as the requirement of floor tests, without assuming control over executive decision-making.15 This principled minimalism depicts the way in which judicial intervention can reinforce constitutional governance without institutional failure.
Dialogic constitutionalism complements restraint by reconceptualizing judicial review as an institutional conversation rather than a monologue. In this paradigm, the role of the courts is to define the principles of the constitution and detect gaps in the current systems, whereas the legislature and executives are left to be mainly tasked with the responsibility of creating and executing the policy answers. More recent constitutional adjudication is an indication of a tentative step towards such dialogue. In Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), the Supreme Court accepted the right to privacy as inherent to Article 21 in expressly refraining from prescribing a comprehensive regime of data protection.16 The decision shows how the courts can establish constitutional limits without challenging institutional competence.
Finally, measures like restraint and dialogue do not restrict judicial power but precondition its credibility. The judiciary exercising power in a humble and constitutional discipline only augments and does not reduce its place in the democratic governance. Dialogic constitutionalism provides a viable solution to reconciliation rather than competition between the constitutional organs by enhancing cooperation as opposed to competition.
CONCLUSION
In India, judicial activism has not occurred as an abstract judicial preference but on a historically contingent basis as a reaction to dysfunction in democracy, institutional inertia and past failures in constitutional enforcement. It has at times been a constitutional remedy, the revitalization of rights that risked becoming illusory and the curbing of state authority where political responsibility was lacking.
Meanwhile, as the Indian experience shows, judicial activism poses institutional dangers whenever it is not applied with principled restraint. The combination of judicial law-making and extended oversight of government undermines the distinction between the three branches of government, democratic accountability, and the credibility of the judicial system. The constitutional dilemma is not, however, whether judicial activism is desirable or undesirable in absolute terms, but whether it is applied in a way that has been institutionally sound, competent, and democratically legitimate. The Indian constitutional jurisprudence proposes that activism does not lose its legitimacy to act as a response to provable breaches of the constitution, as an enabling rather than a substitutive process. On the contrary, activism is unable to retain its justificatory power when it is routine, managerial, or disconnected from democratic procedures.
An institutional restraint supported by dialogic constitutionalism is a sustainable way to solve this dilemma. Through a formulation of constitutional values and a concomitant permission of political branches to shape and execute policy through their main arena, the courts will neither reduce their corrective role nor impede the separation of powers. Finally, the survival of Indian constitutionalism is not pegged on judicial supremacy or legislative supremacy, but a balanced approach among constitutional organs. By observing humility and constitutional discipline in their exercise, judicial activism may continue to be an agent of justice and yet not a danger to democracy.
BIBLIOGRAPHY
CONSTITUTIONAL TEXT
➢ India Const. arts. 13, 32, 50, 72–74, 121–122, 124–147, 162, 214–231, 245–255.
CASE LAW
➢ Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).
➢ Minerva Mills v. Union of India, (1980) 3 SCC 625 (India).
➢ Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).
➢ Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab, AIR 1955 SC 549 (India).
➢ S.P. Gupta v. Union of India, (1981) Supp (1) SCC 87 (India).
➢ Prakash Singh v. Union of India, (2006) 8 SCC 1 (India).
➢ Vishaka and Ors. v. State of Rajasthan, (1997) 6 SCC 241 (India).
➢ Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683 (India).
➢ S.R. Bommai v. Union of India, (1994) 3 SCC 1 (India).
➢ Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
1India Const. art. 50.
2 Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab, AIR 1955 SC 549 (India).
3India Const. arts. 245-255.
4India Const. arts. 72-74,162.
5India Const. arts. 124-147, 214-231.
6 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).
7 Minerva Mills v. Union of India, (1980) 3 SCC 625 (India).
8India Const. arts. 13, 32, 226.
9 Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab, AIR 1955 SC 549 (India).
10 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).
11 S.P. Gupta v. Union of India, (1981) Supp (1) SCC 87 (India).
12 Vishaka and Ors. v. State of Rajasthan, (1997) 6 SCC 241 (India).
13 Prakash Singh v. Union of India, (2006) 8 SCC 1 (India).
14 Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683 (India).
15 S.R. Bommai v. Union of India, (1994) 3 SCC 1 (India).
16 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
