Author: Adv. Inderjeet Kaur

Abstract

Indian judiciary being constitutionally empowered and morally charged has been playing active role to safeguard rights, promote social justice, and remedy governmental inertia. From the expansion of Article 21 to the evolution of Public Interest Litigation, the courts have shaped Indian constitutionalism through transformative interpretation. However, this judicial activism frequently blurs into judicial legislation raising concerns of judicial overreach. This debate – activism vs legislation – came into highlight with the latest Supreme Court judgement of Gayatri Balasamy case. This paper analyzes judicial innovation through landmark cases along with exercise of judicial restraint by judiciary,

Keywords – Judicial Activism; Judicial Overreach; Judicial Legislation; Public Interest Litigation; Separation of Powers; Constitutional Interpretation; Comparative Constitutional Law: Protecting Society

Introduction

Constitutional Courts has been assigned a role to upheld rule of law in the country under Article 32 and 226, armed with transformative Constitution. Over time, it has been established that in interpreting the legislation, regard must be had to social, economic and political changes, need of the community and the independence of judiciary. It led the Indian courts to evolve from mere interpreters of law to protectors of socio-economic rights, architects of public institutions, and, on several occasions, de facto policymakers. While many of these interventions have filled legislative gaps, expanded rights, and corrected executive inertia, they have simultaneously raised an enduring question: where does judicial creativity end, and where does constitutional transgression begin?

This debate—judicial activism vs judicial legislation—is neither new nor unique to India. But in India, the stakes are higher because the judiciary is often the last refuge against state excesses, administrative paralysis, and human rights violations. The challenge, therefore, is not to restrict judicial power, but to determine its constitutional limits. This article examines this tension, analyzes key judgments, and situates the Indian experience within comparative global jurisprudence.

Judicial Activism: Concept and Constitutional Basis

Judicial activism, also known as judicial creativity, is the process by which juristic principles are used to bring the law into compliance with contemporary societal demands, thereby fulfilling the constitutional goal of advancing the public interest under the rule of law. Judicial Activism may be defined as:

“a theory of judicial decision-making by which judges allow their personal opinions on public policy, among other factors, to direct their decisions, usually with the implication that adherents to this theory appear to find constitutional violations and are willing to disregard precedents.”

In actuality, Judicial activism is judicial intervention that can be viewed in three ways: first, by declaring a statute unconstitutional; second, by overturning legal precedents;  and third, by creating social welfare principles.

This is neither accidental nor extra-constitutional; rather, it flows from several textual foundations:

1. Article 13 – invalidating laws inconsistent with Fundamental Rights;
2. Article 32 & 226 – empowering courts to enforce rights with wide remedial discretion;
3. Article 141 – declaring Supreme Court judgments binding, effectively giving them law-making authority;
4. Directive Principles (Part IV) – guiding courts to creatively harmonize socio-economic objectives with enforceable rights.

The Court in Maneka Gandhi v. Union of India changed Article 21 from a limited “procedure established by law” phrase to a wide repository of substantive due process. Through creative interpretation, this ruling made a number of unlisted rights possible, including the right to a speedy trial, clean air, privacy, dignity, and environmental protection.

Public Interest Litigation: Catalyst for Judicial Intervention

PIL is an instrument for ensuring “access to justice” Judicial activism and Public Interest Litigation share a mutually reinforcing relationship. Judicial activism forms the philosophical basis for PIL, while PIL serves as the procedural tool through which the judiciary can assert its activist functions. Together, they have empowered the courts to adopt a more proactive stance in governance and social transformation. PIL allowed marginalized groups to approach the court, unleashing judicial creativity where the State failed.

The Hussainara Khatoon v. State of Bihar is one of the earliest and most influential cases, filed as Public Interest Litigation based on a newspaper report. Supreme Court to stepped in on behalf of thousands of voiceless undertrial inmates kept in jails for several years without trial and ordered the immediate release of all such inmates. The Court took an aggressive stance in reaching its decision, interpreting Article 21 to include the “right to a speedy trial” which is significantly more expansive meaning than was previously acknowledged. Thus, it represents a turning point in which PIL permitted judicial activism, which in turn made it possible to understand Article 21 in a way that was progressive and rights-oriented.

By the 1990s and early 2000s, PIL had evolved into a powerful instrument of governance. During this period, the courts increasingly oversaw and shaped public administration by invoking innovative procedural tools. The Supreme Court monitored electoral disclosures in PUCL v. Union of India, regulated vehicular emissions and environmental compliance in the M.C. Mehta series of cases, issued far-reaching police reform directives in Prakash Singh v. Union of India, and supervised large-scale environmental and infrastructural matters through continuing mandamus. While these actions enhanced accountability and filled governance gaps, critics argue that they blurred the constitutional boundary between judicial review and day-to-day administration.

Judicial Overreach: When Creativity Becomes Transgression

When judicial activism goes overboard and becomes judicial adventurism, it is known as judicial overreach. Indian jurisprudence provides several illustrations where judicial intervention has crossed into the realm of law-making or policy formulation. In Vishaka v. State of Rajasthan (1997), the Supreme Court issued the Vishaka Guidelines to curb workplace sexual harassment, drawing heavily on international conventions such as CEDAW, and these guidelines later formed the foundation of statutory law.

In NALSA v. Union of India (2014), the Court recognized a legally enforceable third gender, while also directing the State to provide reservations, welfare schemes, and institutional reforms—steps that went well beyond adjudication into policy design. The judiciary’s order mandating the closure of liquor shops within 500 meters of national and state highways significantly altered state excise regimes, illustrating judicial influence on fiscal and regulatory policy.

Similarly, in the M.C. Mehta line of environmental cases, the Court regulated vehicle emissions, firecracker use, and industrial pollution—domains traditionally reserved for specialized environmental and administrative authorities. In the National Judicial Appointments Commission (NJAC) case (2015), the Supreme Court struck down a constitutional amendment and reinstated the collegium system, thereby retaining exclusive control over judicial appointments and prompting debate about the proper limits of judicial power.

Most recently, in Gayatri Balasamy v. ISG Novasoft Technologies Ltd., a Constitution Bench held (by 4–1) that courts have a limited power to modify arbitral awards under Sections 34 and 37 of the Arbitration and Conciliation Act, 1996, for clerical or computational errors, severable portions, post-award interest, or “exceptional” cases under Article 142 of the Constitution. Critics argue this represents judicial overreach, as it allows courts to rewrite aspects of arbitral awards, undermining party autonomy, finality, and the minimal-intervention design of the Arbitration Act.

When the judiciary begins to interfere with the legitimate functions of the legislature and the executive, it approaches a point where the constitutional principle of separation of powers risks being compromised. To prevent such transgressions, constitutional theory recognizes an important counter-principle: judicial restraint.

Judicial Restraint: A Necessary Constitutional Discipline in a Functioning Democracy

Judicial restraint operates as a crucial constitutional discipline, acting as a counterbalance to the expansive tendencies inherent in judicial activism. Although the judiciary is entrusted with protecting fundamental rights and checking executive excesses, this mandate does not justify functioning as a parallel legislature or supervisory executive. Judicial restraint ensures that courts intervene only when constitutionally warranted—such as in instances of manifest arbitrariness, fundamental rights violations, or legislative incompetence—while leaving policy choices to democratically accountable institutions. This approach acknowledges the institutional limitations of the judiciary: judges are not elected representatives, lack the expertise to design long-term socio-economic policy, and must avoid distorting democratic accountability through excessive intervention.

Landmark decisions such as R.K. Garg v. Union of India and S.R. Bommai v. Union of India underscore the need for deference to legislative judgment, emphasizing that socio-economic policy choices and political questions should ordinarily be left to the people’s elected branches unless they clearly violate constitutional provisions. Critics have also pointed out that an expansive judicial review may undermine democratic principles by allowing unelected judges to overturn legislation, raising concerns of accountability and judicial supremacy.

A significant articulation of judicial restraint appears in Divisional Manager, Aravali Golf Club v. Chander Hass, where the Supreme Court expressly advised subordinate courts to exercise restraint and respect the separation of powers. The Court emphasized two essential functions of judicial restraint: (i) maintaining equality among the three branches by minimizing judicial interference, and (ii) protecting judicial independence by preventing the judiciary from becoming entangled in governance. Former Chief Justice A.S. Anand, in a public lecture, echoed this sentiment, warning that unchecked judicial activism breeds unpredictability and risks drifting into “judicial adventurism,” where judges issue directions based on personal predilections rather than constitutional principles.

The principle of judicial restraint is not new and has been consistently visible in India’s jurisprudence. Even during the Constitution’s drafting, framers emphasized the need for courts to protect fundamental rights while respecting legislative choices. In A.K. Gopalan v. State of Madras, the Court upheld the Preventive Detention Act despite concerns about personal liberty, displaying remarkable restraint at the inception of constitutional interpretation. In Olga Tellis v. Bombay Municipal Corporation, while recognizing the right to livelihood, the Court refrained from halting slum evictions, balancing constitutional rights with governmental development priorities. Similarly, in Ram Jawaya Kapur v. State of Punjab, the Supreme Court refrained from striking down executive action outright; instead, it clarified the contours of executive power and emphasized legislative supremacy in policy matters.

Through these cases, judicial restraint emerges not as judicial passivity but as a principled, constitutional philosophy—one that preserves institutional balance, respects democratic mandate, and prevents judicial governance.

Conclusion

The debate on judicial power shows that India needs a careful balance between judicial creativity and constitutional limits. Courts play an important role in protecting rights, checking government misuse of power, and stepping in when the legislature fails to act. However, this role should not turn into the judiciary running the country or making laws on its own. Cases like Vishaka and the NJAC judgment show that while judicial action can fill important gaps, it can also risk interfering with areas meant for elected bodies and experts. Both Justice P.N. Bhagwati in Minerva Mills and CJI N.V. Ramana have stressed that judicial review is essential, but it must stay within constitutional boundaries.

Judicial activism should help achieve constitutional goals—not reflect what judges personally want. The real challenge is making sure that the judiciary acts as a corrective force without becoming too powerful. A strict separation of powers is not realistic today, but each branch must still respect the limits of the others. As Lord Acton warned, any form of unchecked power can become corrupt; this applies to the judiciary as well.

In the end, judicial activism is useful when it protects fundamental rights or responds to government failure. But when it goes too far, it can weaken democracy by reducing the role of elected institutions. The best approach is a balanced one: courts should act when rights are threatened but step back when decisions require public debate or policy expertise. Only by following this balanced path can the judiciary protect the Constitution without disturbing the democratic structure.