Authored By: ANN GEORGE PACHAYIL
Government Law College Thiruvananthapuram
Sabarimala is one of the temples dedicated to Lord Ayyappa which is situated in Pathanamthitta in Kerala, India. Since the deity here is an eternal celibate (Naishtika Brahmachari) it has been a time-honoured custom to restrict the entry of women of menstruating age from entering the temple. But the Supreme Court in its historic verdict in Indian Young Lawyers Association & Ors v. State of Kerala[1] lifted this ban allowing the entry of women of menstruating age into Sabarimala. While this verdict was embraced on one side, it also had to face severe criticism that the Court had intervened with the customs and traditions of a religion which was not usually meant to be under its command. This case is a classic instance of “judicial activism” or if in the negative sense- “judicial overreach.” This interpretive power has manifested in several landmark judgments that have reshaped the Indian legal landscape.
One of the three pillars supporting the stalwart Government of India is the judiciary, apart from the legislature and the executive. Legislature is to make laws, executive to implement laws and judiciary to interpret and adjudicate laws. The scope of the power to “interpret laws” of the judiciary has become a matter of contention.
The Indian judiciary has contributed a lot to the law and legal system not just confining to the country alone but to the international legal system. The Keshavananda Bharti v. State of Kerala, Maneka Gandhi v. Union of India, Vishaka v. State of Rajasthan and M.C Mehta v. Union of India are few of the many instances of judicial law making or Judicial activism.
According to Merriam- Webster Dictionary, judicial activism is “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.”[2]
However, the critics are concerned whether such law making by the judiciary is an intrusion into the powers of the legislature. In their view, the courts should continue to interpret the existing laws and avoid judicial overreach into spheres beyond its purview. They opine that the courts must follow the principle of “judicial restraint” i.e. “a refraining in the judiciary from departure from precedent and the formulation of broad doctrine.”[3]
This article aims to confront the matter whether the policymaking by the Judiciary is judicial activism or judicial overreach.
Concept of Judicial Activism
Judicial activism is the proposition where the judiciary departs from the precedents and interprets the laws in a proactive manner so as to reflect modern social values and fill the “legislative lacunae” where laws are either outdated or non-existent. It enables the judges to allow socio-legal philosophy along with other factors to determine their decisions and not just sticking to the conventional standards and interpretations. Consequently, the judges may often step into the shoes of the legislature and executive to establish legal principles, protect fundamental rights and ensure justice in situations where existing laws are inadequate.
Indian judicial activism is unique as it is often exercised through Public Interest Litigations (PILs). PILs allow public-spirited citizens to file cases on behalf of public interest rather than just for personal grievances.
Evolution of Judicial Activism in India (Case Laws)
One of the primary instances of judicial activism in India is the landmark Supreme Court judgement in Kesavananda Bharati v. State of Kerala[4] which established the “Basic Structure Doctrine.” The 13 judge bench limited the Parliament’s power to amend the Constitution and held that the Parliament cannot amend the “basic structure” of the Constitution which includes the foundational features like democracy, federalism, judicial review and separation of powers. It overruled the Golaknath case[5] and allowed the Parliament to amend fundamental rights not destroying the constitutional foundation. This adoption of judicial activism by the Judiciary transformed the Supreme Court from a mere interpreter of the Constitution to the “constitutional guardian”.
In Maneka Gandhi v. Union of India[6], the Supreme Court made step forward and transformed Article 21 from a procedural formality into a substantive shield against arbitrary state action. This decision exemplifies the shift of the Court from strict literal interpretation to a purposive interpretation.
The Supreme Court, in Vishaka & Ors v. State of Rajasthan & Ors[7], faced with legislative vacuum created the legally binding Vishaka Guidelines regarding sexual harassment at work. In K.S Puttaswamy v. Union of India[8], the Supreme Court stepped in and declared right to privacy as a fundamental right under Article 21 which gave a dynamic interpretation of the Constitution against state intrusion and overruled previous narrow judgements.
All these decisions taken together illustrate the transformation of Indian judiciary from a passive law interpreter to an active protector of the Constitution and fundamental rights, raising an enduring debate between judicial activism and judicial overreach.
Concept of Judicial Overreach
Judicial overreach is often viewed as the negative, excessive or extreme extension of judicial activism. It occurs when the judiciary exceeds its constitutional authority by interfering with the functions of legislature or executive, thus undermining the separation of powers. The same decision of the court can be a judicial activism or a judicial overreach depending upon one’s interpretation of constitutional boundaries and the proper role of the judiciary.
The Supreme Court’s decision of Highway Liquor Ban in 2017 in the State of Tamil Nadu v. K. Balu & Anr[9] is frequently perceived as an illustration of judicial overreach. This judgement of the Apex Court, which ordered a ban on the sale of liquor within 500 meters of national and state highways to curb drunken driving, intruded into the executive domain of policymaking under the guise of public interest.
The Apex Court also struck down the 99th Constitutional Amendment in the Supreme Court Advocates-on-Record Association v. Union of India[10]. Here the Court stepped beyond its role of law interpreter and declared the National Judicial Appointments Commission (NJAC) as unconstitutional thereby effectively restoring the Collegium system.
Moreover, as mentioned earlier, the Supreme Court even encroached into the religious traditions and customs followed from time immemorial in the Sabarimala Women Entry Case[11].
Whether the judiciary should remain passive and confined to its authority or step into the shoes of legislature and executive still continues to be one of the most debated topics in constitutional jurisprudence.
Judicial Activism vs Judicial Overreach
Judicial activism and judicial overreach are often separated by a thin constitutional line. It more or less depends upon the perspective of the person who views it. While some view judicial activism as a necessary intervention for the protection of constitutional values, others criticize it as an encroachment into the powers of the legislature and executive.
Rather than determining whether judicial intervention is inherently right or wrong, the central question that must be addressed is: “when does judicial activism transform into judicial overreach?”
The judiciary has been vested with the formidable task of protecting the Constitution and the fundamental rights. While acting as the guardian of the Constitution, the judiciary must be entrusted with some powers and functions which enable it to execute its functions. Therefore, certain interventions in cases of legislative and executive inaction become constitutionally inevitable. Therefore, every judicial intervention cannot be termed as judicial overreach merely because it affects another organ of government.
In Vishaka v. State of Rajasthan[12] the Court introduced the Vishaka guidelines only because there was a “legislative vacuum”. The judgement enhanced the condition of women in workplaces. Similarly, in Indian Young Lawyers Association v. State of Kerala[13], even though some viewed it as a judicial intervention into religion some viewed it as an instance of activism protecting equality. Discrimination of women merely because of a natural phenomenon is impermissible and against the concept of “equality” upheld by the Constitution.
However, judicial activism cannot be blindly sustained. Even though entrusted with the protection of the Constitution, judiciary cannot misuse its power and go far beyond its allocated jurisdiction and disturb the balance between the organs of government. Excessive judicial activism may weaken the doctrine of separation of powers, which forms an essential feature of constitutional governance.
Unelected judges cannot be expected to take the place of elected legislators. Unlike the legislature, the judiciary is not answerable to the people and therefore excessive judicial intervention may undermine democratic decision making and lead to lack of accountability and weakening of democracy.
Critics often argue that judicial activism may contribute to judicial overburden. While millions of cases remain pending, the inordinate involvement of the courts in governance-related issues may divert judicial attention from its primary adjudicatory functions. This may often lead to unreasonable delay in the deciding of cases.
Another criticism is that courts may sometime enter areas requiring administrative or technical expertise, such as economic policy, environmental regulation or governance matters. In such situations, the judiciary lack the institutional competence possessed by the executive.
The Supreme Court itself has emphasized the principle of judicial restraint and the separation of powers in Divisional Manager, Aravali Golf Club v. Chander Hass[14] thereby drawing a limit to the power of judiciary in interfering matters beyond their authority.
Judicial Activism is essential in the administration of justice and the protection of the constitutional mechanism. It empowers the judiciary to fill the lacunae caused due to the inaction of the legislature and the executive. However, judicial activism may become judicial overreach when the courts move beyond the constitutional necessity and pronounce judgements according to judicial preference. Judiciary cannot remain passive especially when rights are threatened but if its action crosses the reasonable limit and causes unnecessary intrusion into the powers of other organs, it must observe judicial restraint. Hence judicial restraint is important but courts should be proactive whenever required.
Conclusion
Judicial Activism has played a crucial role in shaping the constitutional governance in India. When the other organs failed to respond effectively, judiciary has managed to provide legal guidance in the absence of legislation. Decisions such as Vishaka v. State of Rajasthan[15], Kesavananda Bharati v. State of Kerala[16] are the instances where the concept of judicial activism was effectively utilized by the judiciary. It even went a step ahead in Indian Young Lawyers Association v. State of Kerala[17] and ensured equality for all by pronouncing the bold judgement of allowing women of menstruating age into Sabarimala. However, judicial activism cannot remain unchecked. Courts should not move from their foremost duty of adjudication and not interfere beyond a reasonable limit thereby challenging the constitutional balance and weaken the separation of powers envisaged in the constitution. Hence rather than choosing between judicial activism or judicial restraint, the path for a good governance lies in a careful balance between the two.
Reference(S):
- SP Sathe, Judicial Activism in India (2nd edn, OUP 2003)
- Indian Young Lawyers Association v State of Kerala [2019] 11 SCC 1
- Kesavananda Bharati v State of Kerala [1973] 4 SCC 225
- IC Golaknath v State of Punjab [1967] 2 SCR 762
- Maneka Gandhi v Union of India [1978] 1 SCC 248
- Vishaka v State of Rajasthan [1997] 6 SCC 241
- KS Puttaswamy v Union of India [2017] 10 SCC 1
- State of Tamil Nadu v K Balu [2017] 2 SCC 281
- Supreme Court Advocates-on-Record Association v Union of India [2016] 5 SCC 1
- Divisional Manager, Aravali Golf Club v Chander Hass (2008) 1 SCC 683
[1] Indian Young Lawyers Association v State of Kerala [2019] 11 SCC 1
2 Merriam-Webster, ‘Dictionary'<https://www.merriam-webster.com/> accessed 1 May 2026
[3] Merriam-Webster, ‘Dictionary'<https://www.merriam-webster.com/> accessed 1 May 2026
[4] Kesavananda Bharati v State of Kerala [1973] 4 SCC 225
[5] IC Golaknath v State of Punjab [1967] 2 SCR 762
[6] Maneka Gandhi v Union of India [1978] 1 SCC 248
[7] Vishaka v State of Rajasthan [1997] 6 SCC 241
[8] KS Puttaswamy v Union of India [2017] 10 SCC 1
[9] State of Tamil Nadu v K Balu [2017] 2 SCC 281
[10] Supreme Court Advocates-on-Record Association v Union of India [2016] 5 SCC 1
[11] Indian Young Lawyers Association v State of Kerala [2019] 11 SCC 1
[12] Vishaka v State of Rajasthan [1997] 6 SCC 241
[13] Indian Young Lawyers Association v State of Kerala [2019] 11 SCC 1
[14] Divisional Manager, Aravali Golf Club v Chander Hass (2008) 1 SCC 683
[15] Vishaka v State of Rajasthan [1997] 6 SCC 241
[16] Kesavananda Bharati v State of Kerala [1973] 4 SCC 225
[17] Indian Young Lawyers Association v State of Kerala [2019] 11 SCC 1
