udicial activism signifies the proactive role of the Judiciary in protecting the rights of citizens.
The practice of Judicial Activism first originated and developed in the USA.
In India, the Supreme Court and the High courts are vested with the power to examine the constitutionality of any law, and if such a law is found to be inconsistent with the provisions of the constitution, the court can declare the law as unconstitutional.
It has to be noted that the subordinate courts do not have the power to review constitutionality of laws.
Origin:
The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.
The foundation of Judicial Activism in India was laid down by Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.
Criticism:
Judicial Activism has led to a controversy in regard to the supremacy between Parliament and Supreme Courts.
It can disturb the delicate principle of separation of powers and checks and balances.
Judicial Restraint:
Judicial Restraint is the antithesis of Judicial Activism.
Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power.
In short, the courts should interpret the law and not intervene in policy-making.
Judges should always try to decide cases on the basis of:
The original intent of those who wrote the constitution.
Precedent – past decisions in earlier cases.
Also, the court should leave policy making to others.
Here, courts “restrain” themselves from setting new policies with their decisions.
Judicial Overreach:
When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is referred to as Judicial Overreach.
In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.
Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers.
In view of this criticism, the judiciary has argued that it has only stepped when the legislature or the executive has failed in its own functions.
Why is it Required?
Judicial Activism:
Judicial activism has arisen mainly due to:
The failure of the executive and legislatures to act.
Since there is a doubt that the legislature and executive have failed to deliver the desired results.
It occurs because the entire system has been plagued by ineffectiveness and inactiveness.
The violation of basic human rights has also led to judicial activism.
Due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained importance.
Necessity of Judicial Activism:
To understand the increased role of the judiciary, it is important to know the causes that led to the judiciary playing an active role.
There was rampant corruption in other organs of government.
The executive became callous in its work and failed to deliver results required.
Parliament became ignorant of its legislative duties.
The principles of democracy were continuously degrading.
Public Interest Litigations brought forward the urgency of public issues.
In such a scenario, the judiciary was forced to play an active role. It was possible only through an institution like judiciary which is vested with powers to correct the various wrongs in society. In order to prevent the compromise of democracy, the Supreme Court and High Courts took the responsibility of solving these problems.
For example, in G. Satyanarayana vs Eastern Power Distribution Company (2004), Justice Gajendragadkar ruled that a mandatory enquiry should be conducted if a worker is dismissed on the ground of misconduct, and be provided with an opportunity to defend himself. This judgement added regulations to labour law which was ignored by legislation.
Similarly, Vishaka vs State of Rajasthan (1997) is an important case that reminds the need of Judicial activism. Here, the SC laid down guidelines that ought to be followed in all workplaces to ensure proper treatment of women. It further stated that these guidelines should be treated as a law until Parliament makes a legislation for enforcement of gender equality.
Some other famous cases of Judicial Activism include -
Kesavananda Bharati case (1973): The apex court of India declared that the executive had no right to intercede and tamper with the basic structure of the constitution.
Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to the Supreme Court addressing the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognizance of that matter.
I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967): The Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the legislative assembly.
Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric conditions of the undertrial prisoners reflected through the articles published in the newspaper. Under article 21 of the Indian Constitution, the apex court accepted it and held that the right to speedy trial is a fundamental right.
A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just.
Judicial Restraint:
Judicial restraint helps in preserving a balance among the three branches of government, judiciary, executive, and legislative.
To uphold the law established by the government in the legislature.
To show solemn respect for the separation of governmental problems.
To allow the legislature and the executive to follow their duties by not reaching in their arena of work.
To mark a respect for the democratic form of government by leaving the policy on policymakers.
Trends in Judicial Restraint:
S.R. Bommai v Union of India (1994) is a famous example often stated to show restraint practiced by Judiciary. The judgement stated that in certain cases the judicial review is not possible as the matter is political. According to the court, the power of article 356 was a political question, thus refusing judicial review. The court stated that if norms of judiciary are applied on matters of politics, then it would be entering the political domain and the court shall avoid it.
Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court refused to direct the Municipal Corporation on the issue of assigning responsibility for cleanliness of Delhi and stated that it can only assign authorities to carry out duty that is assigned as per law.
Judicial Overreach:
The direct effect of legislative and executive negligence or inability is "judicial overreach".
Weak and injudicious results, not only in the making of laws, but also in their application.
The Indian judiciary has been criticized by many legal scholars, lawyers and judges themselves, for playing an exceedingly activist role and overreaching.
Impact of Judicial Overreach:
Since the legislature is lagging behind in its function, the judiciary tends to Overreach from its function causing a conflict between legislature and judiciary. The clear impacts from such an Overreach of Judiciary are as follows:
There is a threat to the doctrine of separation of powers which undermines the spirit of the constitution. There is a lack of harmony between legislature and judiciary and an impression on the public of inaction by the legislature.
In certain scenarios like that of environmental, ethical, political, expert knowledge is required which the judiciary might not possess. If it renders judgement while having no experience in these domains, then it not only undermines expert knowledge but also can prove harmful to the country.
Judicial Overreach can lead to an expression of disregard by the judiciary in the elective representation. This can decrease the faith of the public in the institution of democracy.
Hence, It is an obligation on the part of courts to remain under their jurisdiction and uphold the principle of separation of powers. The Supreme court has itself reminded other courts, in 2007, to practise Judicial restraint. It stated "Judges must know their limits and must try not to run the government. They must have modesty and humility, and not behave like emperors." Further, it said, "In the name of judicial activism, judges cannot cross their limits and try to take over states which belong to another organ of the state".
Examples of Judicial Overreach:
A famous case of Judicial Overreach is censorship of the Film Jolly LLB II. The case was filed as a writ petition, and alleged that the film portrayed the legal profession as a joke, making it an act of contempt and provocation. The Bombay High Court appointed a three person committee to watch the movie and report on it. This was viewed as unnecessary, as the Board Of Film Certification already exists and is vested with the power to censor. On the basis of the report of the committee, four scenes were removed by the directors. It was seen as violative of Article 19(2), as it imposed restriction on freedom of speech and expression.
On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops, restaurants, bars within 500m of any national or state highway. There was no evidence presented before the court that demonstrated a relation of ban on liquor on highways with the number of deaths. This judgement also caused loss of revenue to state governments and loss of employment. The case was seen as an Overreach because the matter was administrative, requiring executive knowledge.

Judicial activism can be justified in a constitutional democracy when it protects fundamental rights, ensures accountability, or addresses legislative or executive inaction. However, it must remain within constitutional limits to avoid undermining the separation of powers and democratic principles.

Judicial activism, while necessary for certain instances, should be limited in a constitutional democracy to uphold the separation of powers and prevent the judiciary from overstepping its role. It is justified when the executive or legislature fails to enforce constitutional rights or acts against fundamental principles, but should be carefully exercised to avoid undermining the democratic process.

Judicial activism refers to the proactive role played by the judiciary in protecting the rights of citizens, interpreting the constitution in light of contemporary needs, and providing a check on the misuse of power by the executive and legislature