Origins and Growth of Judicial Activism
The concept of judicial activism—where judges boldly interpret laws and the Constitution to address societal needs—first took root in the United States. The term itself was coined in 1947 by Arthur Schlesinger Jr., a prominent American historian and educator, capturing a growing judicial tendency to shape public policy through innovative rulings.
In India, this doctrine gained prominence in the mid-1970s, thanks to visionary judges who expanded the judiciary's role in protecting rights and curbing executive overreach. Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy, and D.A. Desai laid its foundational stones, pioneering public interest litigation and breathing life into constitutional guarantees for the marginalized.
Meaning of Judicial Activism
Judicial activism refers to the judiciary's proactive stance in safeguarding citizens' rights and advancing justice throughout society. At its core, it involves the courts boldly compelling the legislature and executive—the other two branches of government—to fulfill their constitutional obligations. Often termed judicial dynamism, this approach stands in sharp contrast to judicial restraint, where judges exercise self-control and adhere strictly to precedent without overstepping into policy realms.
Scholars and jurists have offered varied yet complementary definitions that illuminate its essence. For instance, it is seen as a judicial philosophy that encourages judges to move beyond rigid adherence to past rulings, embracing progressive social policies instead—even if this means venturing into legislative or executive territory to drive social engineering. Others describe it as the expansion of individual rights through rulings that challenge established precedents or diverge from the perceived intent of constitutions or statutes. In essence, judicial activism empowers judges to interpret laws dynamically, crafting new principles, remedies, and access routes to justice for the marginalized, the needy, or entire communities. This active role in law-making prioritizes social betterment, distinguishing it from passive interpretations that merely apply statutes as written, without enhancing their societal impact. Ultimately, it allows personal views on public policy to subtly influence decisions, fostering innovation in jurisprudence.
This concept finds its most vivid expression in India through Public Interest Litigation (PIL). The Supreme Court's embrace of judicial activism has been the driving force behind PIL's emergence, transforming it into the most prominent and popular manifestation of this judicial approach. By relaxing procedural barriers, the Court has opened its doors to collective grievances, ensuring justice reaches those who might otherwise be voiceless.
Judicial Review and Judicial Activism
Judicial review and judicial activism are intertwined concepts in constitutional law, yet they are not identical. Judicial review refers to the foundational power of courts to interpret the constitution, uphold its supremacy, and strike down laws or executive actions that violate it. This authority ensures that all branches of government operate within constitutional bounds. Judicial activism, by contrast, represents a more dynamic and expansive application of this power, often emerging as a label for judicial behavior since the mid-20th century, particularly in the United States. In India, the two terms are sometimes conflated in public discourse, but activism specifically describes instances where judges go beyond mere interpretation to shape policy outcomes, infusing their decisions with personal or societal preferences while reviewing laws.
At its core, judicial activism is inherent in judicial review, as it compels courts to actively enforce constitutional duties on the legislature and executive. Without this proactive stance, other organs of government might neglect their responsibilities. The term "judicial activism" gained prominence in the 20th century to characterize "judicial legislation"—where judges effectively create positive law through their rulings. Though no universally accepted definition exists, it broadly emphasizes a robust judiciary's role in safeguarding fundamental rights through aggressive review. Critics, however, view this expansion warily. In India, for instance, the judiciary has broadened access to justice by relaxing the traditional rules of locus standi (the requirement that only directly affected parties can approach the court). Through progressive interpretations in Public Interest Litigation (PIL), courts have extended their reach to address systemic issues like environmental degradation or human rights abuses—developments often branded as judicial activism by those who see it as judicial overreach.
In constitutional matters, judicial activism essentially operates under the umbrella of judicial review. At its widest, it occurs whenever a court intervenes to invalidate duly enacted legislation, signaling a judiciary willing to check majoritarian excesses and protect constitutional values. This distinction underscores a delicate balance: review provides the legal foundation, while activism reflects the vigor with which it is exercised.
Justifications for Judicial Activism
Scholars have offered compelling rationales for judicial activism, particularly in contexts where other branches of government falter. Dr. B.L. Wadehra identifies key triggers, beginning with the near collapse of responsible government. When legislatures and executives shirk their duties, public faith in the Constitution and democratic institutions erodes, compelling the judiciary to intervene. Citizens, increasingly reliant on courts to safeguard their rights and freedoms, exert immense pressure on judges to champion the masses.
This dynamic is amplified by judicial enthusiasm, where judges eagerly engage in social reforms amid evolving societal needs. Such zeal fosters Public Interest Litigation (PIL) and relaxes the traditional locus standi requirement, allowing broader access to justice. Wadehra also points to legislative vacuums—gaps in lawmaking that leave critical areas unaddressed—forcing courts to step into "judicial legislation" to address changing social realities. Reinforcing this role, the Indian Constitution itself embeds provisions that empower the judiciary to legislate actively or expand its influence.
Subhash Kashyap echoes these concerns, outlining scenarios where courts must transcend their conventional boundaries into legislative and executive domains. These include outright legislative failures, as well as "hung" legislatures that produce weak, survival-obsessed governments incapable of bold decisions lest they alienate castes, communities, or interest groups. Leaders in power often dodge accountability by framing public issues as legal matters, offloading delays or unpopular rulings onto courts. Kashyap further highlights failures to uphold basic rights—such as a decent life, healthy environments, or efficient administration—and the misuse of judiciary by authoritarian regimes, exemplified by Emergency-era excesses.
Even courts, Kashyap notes, can fall prey to human frailties like populism, media hype, or headline-chasing, inadvertently fueling activism.
Dr. Vandana frames judicial activism through observable trends in judicial behavior. These encompass expanded hearing rights in administrative processes, unchecked excessive delegation of legislative powers, and heightened control over discretionary authorities. Courts have broadened judicial review of administration, championed open government, and wielded contempt powers more aggressively—even exercising jurisdiction where none formally exists. In pursuit of economic, social, and educational goals, judges sometimes stretch interpretive rules beyond norms, occasionally issuing orders that prove unworkable in practice.
Together, these perspectives underscore judicial activism not as overreach, but as a vital corrective mechanism in India's constitutional framework, ensuring governance remains responsive to the people's needs.
Activators of Judicial Activism
The eminent jurist Upendra Baxi has offered a comprehensive typology of social and human rights activists who have played a pivotal role in sparking judicial activism in India. These diverse groups have strategically invoked the courts to address pressing societal grievances, transforming the judiciary into a dynamic force for change. By filing public interest litigations and championing marginalized voices, they have expanded the horizons of constitutional justice.
At the forefront are civil rights activists, who concentrate on upholding civil and political liberties amid threats to personal freedoms. Complementing them are people's rights activists, who spotlight social and economic entitlements, often in the face of state suppression of grassroots movements. Consumer rights groups push for accountability in governance and the marketplace, ensuring that economic policies serve the public interest.
Other key players include bonded labour groups, whose demands for judicial intervention amount to a call for eradicating wage slavery across India. Citizens for environmental action rally the courts to halt escalating pollution and ecological damage, while groups opposing large irrigation projects challenge the judiciary to take the extraordinary step of refraining from issuing orders against mega-dams and similar ventures—a demand unprecedented for courts worldwide.
Children's welfare finds voice through rights of child groups, tackling child labor, the right to education, juveniles in detention, and even the entitlements of offspring born to sex workers. Custodial rights groups advocate for prisoners, women in state "protective" custody, and those held under preventive detention, exposing systemic abuses behind institutional walls. Poverty rights groups litigate for drought and famine relief, as well as the needs of urban poor, bridging the gap between policy promises and lived realities.
Indigenous people's rights groups champion forest dwellers, communities under the Fifth and Sixth Schedules of the Constitution, and cultural identity assertions. Women's rights groups confront gender inequality, violence, harassment, rape, and dowry-related deaths, weaving feminist perspectives into judicial discourse.
Rounding out Baxi's framework are institutional watchdogs: bar-based groups that safeguard the autonomy and accountability of the judiciary itself; media autonomy groups defending press freedom and scrutinizing state-controlled mass media; assorted lawyer-based groups mobilizing for a spectrum of causes; and individual petitioners, the freelance activists who single-handedly ignite landmark cases. Together, these activators illustrate how citizen-driven pressures have redefined the Indian judiciary's role as a guardian of rights and a check on power.
Apprehensions of Judicial Activism
Prominent jurist Upendra Baxi has articulated a compelling typology of fears sparked by judicial activism, capturing the unease it provokes even among India's most principled judges. As Baxi observes, these apprehensions "entail invocation of a wide range of fears," strategically designed to instill a "nervous rationality" in the judiciary. He delineates six distinct categories, each probing the potential pitfalls of an assertive bench.
At the core lie ideological fears, which question whether judges are overstepping into the domains of the legislature, executive, or other autonomous institutions in civil society. Closely related are epistemic fears, raising doubts about the judiciary's expertise in specialized fields—such as the economic acumen of a Manmohan Singh, or the scientific prowess of atomic energy czars and leaders at the Council of Scientific and Industrial Research.
Management fears highlight practical concerns: in an era of skyrocketing case backlogs, does embracing public interest litigation simply exacerbate arrears without delivering true justice? Legitimation fears go further, warning that executive defiance of judicial orders in such cases could erode the courts' symbolic and practical authority, ultimately undermining public faith in the judiciary as a democratic safeguard.
Finally, democratic fears ponder whether a surge in public interest litigation bolsters democracy or saps its long-term vitality, while biographic fears reflect personal anxieties among judges: what legacy—or diminished role in national affairs—awaits after retirement if they pursue this path too aggressively? Together, these fears underscore the delicate balance judicial activism demands in India's constitutional framework.
Judicial Restraint: A Core Judicial Philosophy
In the United States, judicial activism and judicial restraint represent two contrasting approaches to the judiciary's role. Proponents of judicial restraint advocate for a strictly limited function for judges, emphasizing that their primary duty is simply to interpret and apply the law as it exists. Lawmaking, they argue, belongs squarely with elected legislators and the executive branch, not unelected judges.
This philosophy insists that judges must remain impartial, never allowing personal political beliefs or policy preferences to influence their rulings. Above all, it stresses that the "original intent" of the Constitution's framers and its amendments is discernible and should serve as the guiding light for judicial decisions, ensuring fidelity to the document's foundational meaning.
Assumptions of Judicial Restraint
The doctrine of judicial restraint in the United States rests on six key assumptions, urging the Supreme Court to exercise caution and defer to other branches of government. At its core, this philosophy views the Court as inherently undemocratic—its justices are unelected and thus less attuned to the popular will. Given this perceived oligarchic nature, the Court should yield to the more representative legislative and executive branches whenever feasible.
This restraint is further reinforced by broader constitutional principles. The doctrine of separation of powers demands that each branch respect the others' domains, while federalism requires deference to state governments, which share authority with the national government. Adding a pragmatic dimension, the Court relies on Congress for its jurisdiction and funding, and on public support for its legitimacy; provoking backlash could undermine its influence. Finally, an aristocratic ideal positions the judiciary as a guardian of the Anglo-American legal tradition—a realm of reason and judgment—distinct from the raw power dynamics of politics.
Strikingly, all these assumptions except the second resonate strongly in the Indian context. Unlike the U.S. Constitution, India's explicitly empowers judicial review through provisions like Articles 13, 32, and 226, eliminating doubts about its origins. Yet the remaining five principles—ranging from democratic deference to institutional pragmatism—continue to guide Indian courts toward measured intervention.
Supreme Court on Judicial Restraint
In a significant judgment delivered in December 2007, the Supreme Court of India issued a firm reminder on the need for judicial restraint. The Court cautioned lower courts against encroaching on the functions of the legislature or executive, reaffirming the Constitution's bedrock principle of separation of powers. Each branch of government, it stressed, must respect the others' domains to preserve this delicate equilibrium.
The Bench expressed alarm at the growing trend of judges venturing into executive or legislative territory under the banner of judicial activism. "This is clearly unconstitutional," it declared. "Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors." Quoting Montesquieu's classic The Spirit of Laws, the Court invoked the French philosopher's warnings about the perils of blurred boundaries between branches—a critique especially pertinent today, given frequent accusations of judicial overreach in India.
Judicial activism, the Bench clarified, must never slide into judicial adventurism. Adjudication demands adherence to time-tested restraints and a deliberate effort to set aside personal biases. Courts should also refrain from embarrassing administrative bodies, acknowledging that officials possess specialized expertise in governance—expertise that judges typically lack.
The Court rejected arguments that justify such oversteps by pointing to lapses in the other branches. Even if true, it noted, the judiciary faces similar charges: cases languishing for half a century expose its own inefficiencies. The real solution lies with the people. If the legislature or executive falters, citizens must respond through democratic means—casting informed votes in elections, supporting candidates who align with public expectations, or pursuing lawful avenues like peaceful demonstrations.
Judicial intervention in these spheres, the Bench warned, would shatter the constitutional balance of power. Lacking the requisite expertise and resources, courts are ill-equipped for such roles. Ultimately, judicial restraint strengthens inter-branch equality by curbing interference and shields the judiciary's independence. Overreach, by contrast, invites backlash from voters, legislators, and officials, who may then demand tighter oversight of the courts.