INTRODUCTION
In a democratic republic such as India, the constitution functions as the supreme legal authority, delineating the three constitutional branches of governance—the legislature, executive, and judiciary. Each branch bears distinct responsibilities: the legislature enacts laws, the executive implements and enforces laws, and the judiciary interprets and applies laws. In recent decades, the role of the judiciary has been a subject of debate, particularly concerning judicial activism versus judicial overreach.
While judicial activism is regarded as essential for safeguarding democratic principles, judicial overreach is perceived as an infringement upon the doctrine of separation of powers. Nonetheless, Indian courts have taken measures to ensure the delivery of justice, even if they encroach upon the domains of the government or legislature. This persistent tension raises a profound and complex issue—namely, a constitutional dilemma.
UNDERSTANDING JUDICIAL ACTIVISM
As stated in Black’s Law Dictionary, Judicial Activism is referred to as: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”[1]
Judicial activism signifies the assertive role exercised by the judiciary in enforcing constitutional rights, checking legislative and executive inaction, and upholding justice. It involves shaping and influencing policy through judgments that go beyond mere interpretation of laws. It is frequently employed as a mechanism to protect public interest, particularly when legislative or executive powers impede justice for marginalised groups.
The Concept of Public Interest Litigation, a notable instance of judicial activism, was championed by judges such as Justice P.N. Bhagwati, known as the father of PIL,[2] Justice V.R. Krishna Iyer, and Pushpa Kapila Hingorani, known as the mother of PIL.[3] However, in the case of S.P. Gupta v. Union of India, 1981, the Supreme Court has expanded the traditional principle of Locus Standi, thereby making justice accessible and allowing proactive individuals or NGOs to file on behalf of those who are underprivileged.[4]
In the case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar (1979), Justice P.N. Bhagwati recognised the right to a free and speedy trial as a fundamental right under Article 21 of the Indian Constitution[5], resulting in the release of 40,000 under-trial prisoners nationwide due to illegal detention.[6] The court reaffirmed the state’s obligation to ensure legal assistance to those unable to afford it.
THE NARROW LINE: JUDICIAL OVERREACH
Excessive intervention by courts in policy matters and the roles of the legislative and executive authorities constitute judicial overreach. Judicial overreach, the converse of judicial activism, involves encroachment by the judiciary upon the functions of other branches, thereby disturbing the separation of powers among the state institutions.
While judicial activism is necessary for ensuring justice, overreach signifies a breach of the principle of separation of powers. Judicial activism is characterised by an assertive interpretation of the law, whereas judicial overreach entails assuming roles designated for other organs of government. Although often driven by laudable motives, judicial overreach must be restrained to maintain democratic stability and institutional integrity.
In The State Of Tamil Nadu Rep. By Sec.& Ors; vs K. Balu & Anr (2017), the Supreme Court prohibited liquor vendors within 500 meters of national highways, which will result in a reduction of road accidents.[7] This case gives rise to judicial intrusion into policy-based decision-making.
In the landmark ruling of Shyam Narayan Chouksey v. Union of India (2018), the Supreme Court mandated the playing of National Anthem in cinema halls before any screening and requires audience to stand up, this reasoning of Supreme Court was argued as it ruled beyond the scope of the Prevention of Insults to National Honor Act, 1971, which prohibits the playing of national anthem in any show.[8]
Judicial overreach results in the formulation of policy frameworks without legislative backing and the implementation of regulatory schemes without adequate debate. Generally, it is not a purposeful or intentional act; rather, it constitutes a misuse of judicial authority, which can undermine public confidence in democratic institutions.
BALANCING JUDICIAL AUTHORITY AND RESTRAINT
A resilient democracy depends not only on strong institutions but also on a steadfast commitment to respecting their constitutionally defined roles. Achieving an appropriate balance between judicial authority and restraint is essential for safeguarding democratic integrity. While the judiciary is tasked with safeguarding constitutional principles, it must operate within its designated limits and refrain from encroaching upon the institutional mandates of the legislative and executive branches. Excessive judicial intervention risks creating a democratic imbalance.
Judicial restraint involves confining judges to acting within their constitutional powers, emphasising the doctrine of separation of powers. This principle encourages judges to limit their scope of authority, thus maintaining a proper balance among the branches of government rather than engaging in policy formulation. Judges are advised to base their rulings on precedents and the original intent of the Constitution. Such an approach prevents the judiciary from unilaterally establishing new policies or administering them outside the purview of other governmental branches.
The challenge resides in discerning when judicial intervention is warranted and when restraint is appropriate. The judiciary must intervene when citizens’ rights are at risk and when the government fails to deliver justice.
At various times, the judiciary itself has emphasised the importance of restraint. The Supreme Court has acknowledged that judges should restrain themselves from acting as lawmakers and should operate within their constitutional confines. In the case of Divisional Manager, Aravali Golf Club v. Chander Hass (2008), the Court underscored the necessity of judicial restraint, warning against encroaching upon the domains of the legislative and executive branches; it cautioned against judicial activism that oversteps boundaries and usurps the functions of other state organs.[9] Furthermore, judicial restraint serves to safeguard the autonomy of the judiciary. Maintaining a balance between power and restraint not only preserves judicial integrity but also upholds the foundational principles of the Constitution.
CONCLUSION
The ongoing debate regarding judicial activism versus judicial overreach reflects the broader attempt to balance democratic governance with the administration of justice. The state must ensure equilibrium among all three branches of government and uphold constitutionalism. When courts engage in policy-making or assume executive functions, it constitutes an overreach. Judicial activism, while possessing positive potential to safeguard rights and promote justice, also raises concerns about the equitable division of power within a democratic system.
Ultimately, judicial intervention should be guided by principled considerations and constitutional propriety. The Indian judiciary has historically played a pivotal role through judicial activism by protecting citizens’ rights and ensuring justice. Nonetheless, maintaining a clear division of powers remains crucial for the health of a democracy.
Author(s) Name: Archita (Maharshi Dayanand University, Rohtak)
References:
[1] Nishtha Jaswal and Lakhwinder Singh, ‘Judicial Activism in India’ (2017) Bharati Law Review (Jan-Mar) <https://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-2B84EFE0ABCA.pdf> accessed 19 June 2025
[2] Shruti Mahajan, ‘He read the Constitution as belonging to the people of India: CJI Gogoi pays homage to Justice PN Bhagwati at book launch’ (Bar & Bench, 9 February 2019) <https://www.barandbench.com/news/president-cji-gogoi-remember-justice-pn-bhagwati> accessed July 15 2025
[3] ‘All about Pushpa Kapila Hingorani, the mother of PIL, the woman who fought for women’ (Times of India, 11 December 2023) <https://timesofindia.indiatimes.com/etimes/trending/all-about-pushpa-kapila-hingorani-the-mother-of-pil-the-woman-who-fought-for-women/articleshow/105897882> accessed July 15 2025
[4] S.P. Gupta v Union of India AIR 1982 SC 149
[5] Constitution of India 1950, art 21.
[6] Hussainara Khatoon & Ors vs Home Secretary, State of Bihar (1979) 1 SCC 98
[7] The State Of Tamil Nadu Rep. By Sec.& Ors; vs K. Balu & Anr (2017) 2 SCC 281
[8] Shyam Narayan Chouksey vs Union of India (2018) 8 SCC 310
[9] Divisional Manager, Aravali Golf Club v. Chander Hass (2008) 1 SCC 683
