– Vishek Bhuyan231


The role of the Judiciary has often been hailed as that of a “balance-wheel” among the three organs of the government. The age old role of the judges has been touted as that of an interpreter of the laws rather than the maker. But with recent advancements and changes in the socio-political and economic scenario of the country, there has been a shift in the traditional role. The rise in the number of Public Interest Litigations (PIL) being filed is proof of the above.

But intense Judicial Activism becomes Judicial Adventurism and sometimes Judicial Overreach. In such cases the Doctrine of Separation of Power is under threat. Therefore, has the judiciary encroached its assigned field while advancing public interest and social justice will be the area of inquiry of this paper and whether there is a need for judicial restraint will also be dealt with.

Through Judicial Activism the Judges take into account the current social, political and economic climate of the country in interpretation of the laws. This allows the Courts to compel the authorities to act for the betterment and welfare of the society and also to prevent the other two organs of the governments from violating the Basic Structure Doctrine. But in recent years there has been surge in cases where the Courts have often crossed the Limit of Activism and transgressed in the area of Overreach/Adventurism. This transgression makes the Judiciary a violator of the Doctrine of Separation of Powers, where the Courts have encroached their assigned field and interfered in the working of the Legislature. Thus, exercise of restraint on part of the Judges is necessary while striking down the laws made by the legislature. Without Judicial restraint the guardian of the Constitution becomes the Violator. Therefore Judicial Restraint is the need of the hour.


The primary duty of the judicial organ of our government is to ensure the delivery of justice, and to discharge the duty in a manner by which justice reaches every nook and corner of the society. As stated by Alexander Hamilton;

“The Executive holds the sword……the Legislature commands the purse. The Judiciary, on the contrary, has no influence over the sword or the purse. It neither has the power of the purse nor that of the sword; i.e. neither money nor patronage on one hand nor physical power to enforce its decisions.”232

Therefore the question arises as to how does the judiciary discharge its primary duty?

Judicial Activism is the process by which the court takes on the role of an activist and does away with the provisions of law and rather takes into account the current social and political atmosphere in delivering justice. Judicial activism also implies the assertive role played by the judiciary in maintaining checks and balances among the other two organs of the government. Some of the areas where the court assumes the role of an activist are; neglected children, Bonded labourers matters, Nonpayment of minimum wages to workers, Speedy trial, petitions against atrocities on women, petitions against police excesses, petitions against atrocities on ST’s, SC’s, etc.

In the present times, the concept of judicial activism has emerged as a phenomenon in the Indian polity with a specific role of judiciary in the social welfare. During the last two decades, the working of Indian judiciary has been characterized by judicial activism. It has increased the significance of judiciary in the process of governance. Being an activist, judiciary has delivered historic verdicts relating to various spheres of life, environment, human rights, child labour etc. The social, economic and political justice can be achieved if every instrumentality under the Constitution functions as per the mandate of the Constitution.233

In the case of State of Madras V. VG Row234, it is held that the Supreme Court is the interpreter as well as the guardian of the Indian Constitution. And any law that is in contravention of the basic structure of the Constitution is to be declared void by the Supreme Court. Then there are situations in which a thin demarcation exists between Judicial Activism and Overreach, where upon crossing a certain limit activism becomes adventurism and finally overreach.

One of the most important implications of Judicial Overreach is the dilution of the Doctrine of Separation of Power. The Doctrine of Separation of Power (SOP) is one of the basic features of the Constitution of India, the purpose behind this doctrine is to ensure that there shall be no concentration of powers in any single organ of the government and this power shall be divided among the three organs of the government. The Supreme Court which is regarded as the guardian of the constitution, the very act of judicial overreach destroys the sanctity of its role. As Judicial overreach amounts to encroachment of its assigned field by the judiciary and hence a violation of the said doctrine.



In order to protect the supremacy of the constitution and uphold the Doctrine of Rule of Law, Judicial Review is a necessary feature. Hence, Judicial Review is of utmost importance.

According to Cooley;

“Legislators have their authority measured by the Constitution, they are chosen to do what it permits and nothing more and they take solemn oath and support it.”235

The provision of Judicial Review is what helped the Judiciary in regulating the government functions and also brought positive changes to the Socio-Economic and Political structure of the society. Therefore Judicial Review is process that involves reviewing the various acts of the Legislature in order to ensure its conformity with the Constitutional provisions.

According to Justice Frankfurter,

“Man being what he is, cannot ne cannot safely be trusted with complete power in depriving others of their rights. Had it not been for the prescience of our constitution makers, our fundamental rights and liberties would by now have been in sorry tatters.”236

The Constitution while laying down the various Freedoms and Liberties of the Citizens also made sure that the courts were granted the power to strike down Legislative Acts, if they were found to be in Violation of the above freedoms.


The United States Constitution recognised and adopted the concept of Judicial Review in the Landmark Case of Marbury v. Madison 237 and the Indian version of Judicial Review was influenced by the US Constitution. Under the Indian Constitution, the Supreme Court has been vested with power to review the acts of both the parliament as well as the State Legislature. But recently, Judicial Review has received severe criticism for dilution of various important Constitutional Doctrines, though the main object was to maintain a method of Checks and Balances among the three organs of the government. This will be discussed in the subsequent chapters.

There are several provisions under the Indian Constitution, that provide for the power of Judicial Review. Such as, Articles 13, 32,226,227,141,143,131-136,145,246,254,372, etc.

Following is a brief description of the Articles

  • Article 372 relates to Judicial Review of those legislations that existed before the enactment of the Constitution.
  • Article 13 is the most important provision of Judicial Review, as it states about the striking down of any law that is in contravention of part III of the Constitution.
  • Article 32 and 226 vests the power to issue writs to both Supreme Court and High Court respectively, to protect the fundamental rights of the citizen.Article 254 states about repugnancy between the laws of the Centre and the State. Where upon inconsistency, the state laws shall be declared void.
  • Article 254 states about repugnancy between the laws of the Centre and the State. Where upon inconsistency, the state laws shall be declared void.
  • Article 246 lays down the powers to make laws of both the Union as well as the states with regards to the three lists under the Seventh Schedule.
  • An article 245 lays down the constitutional limitation upon both the parliament as well as the state legislature.

From the above provisions, it can be understood clearly as to how the various legislations can be challenged in the court of law “on the grounds that the legislature is not competent enough to pass a law on that particular subject matter; the law is repugnant to the provisions of the constitutions; or the law infringes one of the fundamental rights.”238


The ability to amend the Constitution is an important feature of every written constitution because, “if no provisions were made for the amendment of the Constitution, the people would have had recourse to extra constitutional method like revolution to change the Constitution.”239 Under the Indian Constitution the power to amend has been provided under Article 368. The constitutional Amendment Act, 1951(1st amendment) inserted articles 31A and 31B, the validity of these articles were challenged in the landmark case of Shankari Prasad v. Union of India240.

The validity of this Amendment was challenged on the ground that it intended in interfering with rights given under article 13(2) and so it was void. But in this case it was argued that Article 368 included the power to amend Fundamental rights and Article 13(2) only applied to “law” which does not include constitutional amendments which is made in exercise of its legislative power by the legislature. The above contention was again brought up in the case of Sajjan Singh v. State of Rajasthan 241 , where Chief Justice Gajendragadkar stated that, “if the Constitution makers intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.”

Finally in the case of Golak Nath v. State of Punjab242, the decision of the other cases were overturned, Chief Justice Subba Rao stated that “it is outside of the ambit of the Parliament’s power, to amend Part III of the Constitution and as a result enumerated the doctrine of “prospective overruling” which involved in construing the decisions given in prior judgements to suit the present needs of the society without affecting the rights of the original parties to the case”. Therefore any legislative act of the parliament that violates the fundamental rights and freedoms of the Citizen are bound to be struck down by the Courts under the power of Judicial Review.


In the current scenario, the role of the Indian Judiciary has undergone a drastic change when it comes to promoting Social Welfare through the concept of Judicial Activism. Since the last few decades, the role of the Indian judiciary has been distinguished by Judicial Activism. Through Activism the involvement of the Judiciary has increased in governance of the citizens. By taking on the hat of an activist, the Indian Judiciary has been able to give several landmark verdicts when it comes to nature, protection of environment, bonded laboured, speedy justice, rights of minorities, etc. 243

Total justice in terms of Social Economic and Political spheres is only possible when every organ of the Government under the Indian Constitution functions according to the limits set by the various Constitutional Provisions.


State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal,244 in this it was laid down that the state under Indian Constitution does not have the power to affect any of the rights and freedoms guaranteed under Part III of the Constitution and any law that violates the above shall be null and void.

Therefore it is the duty of the courts to interpret the provisions of the Constitution and declare those laws as void which are found to be in violation of any of the basic structure of the Constitution. The Courts acts as the Guardian of the Constitution in this regard.

In State of Madras v. V.G. Row245, it was held that under the Indian Constitution there are several provisions that provide for Judicial Review of Legislative actions in order to ensure its conformity and the duty to the above lies on the courts.

In the landmark case of A.K. Gopalan v. State of Madras246, the following was stated;

“In India, it is the Constitution that is supreme and for a statue law to be valid, must in all cases be in conformity with the constitutional requirements. It is for the judiciary to decide whether any enactment is constitutional or not. If the Legislature transgresses any constitutional limits, the Court has to declare the law unconstitutional for the Court is bound by its oath to uphold the Constitution.”

And in the case of State of Rajasthan v. Union of India247, the following was stated about the Constitution being the supreme law of the land by Justice Bhagawati;

“It is necessary to assert in the clearest terms particularly in the context of recent history that the Constitution is supreme lex, the permanent law of the land and there is no department or branch of government above or beyond it. Every organ of the government, be it the executive, legislature or judiciary, derives its authority from the Constitution and has to act within the limits of its authority.”

While upholding the importance of Judicial Review, the following was stated in S.S. Bola v. B.D. Sharma,248

“The founding fathers very wisely, therefore, incorporated in the Constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability, availment and enjoyment of equality, liberty and fundamental freedoms and to help to create a healthy nationalism.”

In the landmark judgement given in Kesavananda Bharati v. State of Kerala 249, the following was stated about Judicial Review;

“As long as fundamental rights exist and are part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these Rights are not contravened. Judicial Review has thus become an integral part of our constitutional system.”

Article 13 confers the unique privilege on the Courts to strike down any ultra-vires legislative acts, it lays down that every pre as well post constitutional laws in violation with Part III shall be declared void.



The role of Judiciary in conventional sense is that of the interpreter of the law of the land. The Supreme Court has traditionally not only held the role of the arbiter but also that as the guardian of the Constitution. It has been vested with the sole power to declare any law in violation of the Constitution as void. The Supreme Court has been vested with duty to uphold the rule of law. But this role has undergone a change in the recent years, now Judicial Review has transgressed into Judicial Activism which in turn leads to Judicial Usurpation. 250

The term Judicial Activism does not have a fixed definition but in common parlance, it implies the transformation in the role of the Judiciary, from the traditional function of a platform of settlement of disputes to the “adoption of pro-active approach by the judiciary.”251

Activism states about the change in how the Judiciary has come out of its assigned field to make various norms, policies, laws in interest of the Society which includes protection of liberties of the citizens from being violated by the other two organs. The main contention that is being brought forward in this research paper is that the Judiciary is not transgressing its limits but rather promoting the values of a welfare state as enshrined in the preamble. The courts are not overstepping but rather working in consonance with the broad framework of the preamble.


In the traditional view of the role of Judiciary, it implies the role of an interpreter of law versus the present day notion of maker of laws. However with the advancement of time which brought many changes in the society, there has been a change in role of courts. In Vishaka v. State of Rajasthan252, the failure of the legislature in enacting proper laws for protection of women from sexual harassment in their workplace has been highlighted by the Supreme Court;

“In view of the above, and in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, guidelines and norms are hereby laid down for strict observance. This is done in exercise of the power available under Article 32 for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution of India.”

Here the Supreme Court, though it has went beyond its assigned field, it was still able to deliver justice where the legislature failed.

In Priyadarshini v. The Secretary to Government253, the following has been stated;

“Under the Constitution, the legislature, the executive and the judiciary have their own broad spheres of operation. It is, therefore, important that these three organs of the state do not encroach upon the domain of another and confine themselves to their own, otherwise the delicate balance in the Constitution will be upset… The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super legislature.”


As the Indian Constitution does not follow strict separation of power, therefore it is necessary that each of the organs must careful so as to not encroach upon another’s field. The same was stated in State of Kerala v. A Lakshmi Kutty.254if the Judiciary encroaches into the field of either the executive or the legislature there is a chance that Judge’s personal opinion upon a particular subject might translate into legal principle, since the Judiciary has not been equipped by the constitution to look after the needs and wants of the people. In Ramachandran Rao v State of Karnataka255, the Supreme Court stated that;

“The Supreme Court does not consider itself to be an imperium in imperio or would function as a despotic branch of the State. The primary function of the Judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation. But they cannot entrench upon in the field of legislation properly meant for the legislature. It is no difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law – the field exclusively reserved for the legislature”

Therefore, it is necessary for maintenance of the sanctity of the doctrine of basic structure that the Supreme Court does not encroach into the field of the legislature


Article 21 of the Indian Constitution states the following; “no person shall be deprived of its life and liberty except according to the procedure established by law”. With passage of time and change in the structure of society this Article has been interpreted in a manner so as to include various new rights which were not available to the citizens earlier.

The most prominent case when it comes to expansion under Article 21 is Maneka Gandhi v. Union of India256, where it was held the law should be “just, fair and reasonable”. The gist of reasonableness and fairness has been used to test the constitutional validity of legislative acts.


The concept of Judicial Activism and Public Interest Litigation both share common roots. The Judiciary has been able to display its energetic pursuit of Social welfare and Justice through the following; it has entertained various petitions relating to Public Interest on the basis of letter257, by combating degrading prison condition not suitable for Human living258, free legal aid259, right to livelihood260, protecting bonded labourers261, protecting rights of the children262, pension263, compensation to rape victims264, etc.

The above are just a few examples from never ending list of achievements of the Judiciary in promoting Social Welfare and justice, which has been possible because of it taking on the role of an activist.



Dr. Manmohan Singh while referring to the limit of the power of Judicial Review of the courts stated the following;

“Courts have played a salutary and corrective role in innumerable instances. The dividing line between judicial activism and judicial over-reach is a thin one. A takeover of the functions of another organ may, at times, become a case of over-reach.”

The concept of Judicial Activism is slowly transforming the Courts into the violators of the provisions of the Constitution. The Indian Constitution has the doctrine of separation of powers as one of the basic features, which exits to prevent one organ from interfering into the domain of the other two organs. This is done to maintain a systematic structure for functioning of the Government.

The Indian through its enumeration of the various doctrines for proper governance is what restored the common man’s faith and confidence in the Judicial system. However, in recent decades, the courts have transgressed into the other extreme, i.e it has slowly and steadily crept into the domain of the Legislature. In recent times there have been many instances where the Supreme Court was in excess of its assigned field. The most notable being the rejection of the National Judicial Appointments Commission (NJAC) bill, which would have replaced the age old collegiums system of appointment of Judges. Though the Supreme Court rejected the bill with a majority of 4:1 and the bill was held to be unconstitutional.

Another example of Overreach is the standing up for national anthem in cinema halls case. Here, the final judgement was given in December of 2016, where it was stated that it is mandatory for every cinema hall to play the National Anthem before every movie and all those view present should stand up for the duration of the Anthem. A case of overreach can be seen here as the judgement was in contravention of an earlier decision given in the Bijoe Emmanuel Case265, and also a violation of the provisions of the Prevention of Insults to National Honours Act,1971 which stated that no film can have the National Anthem as a part of the show. The above are just two prominent examples from a sea of cases relating to overreach on part of the Judiciary.

The above actions of the Judiciary have led to exposing itself to criticism. This criticism is not unwarranted as it is evident from the above two examples how the courts has starting to make laws instead of the representatives appointed by the people. Therefore it is necessary on part of the courts to maintain the sanctity of the doctrine of Separation of power to ensure that the Indian democracy does not turn into a judicial tyranny. The Judiciary should respect this doctrine and abstain from interfering in the other organ’s domain, so as not to lead to concentration of powers in the hands of a single organ.


Under Article 13 of the Indian constitution the courts have been vested with the power to check the conformation of laws made by the legislature and the executive with that of the Constitutional provisions.

In the American Constitution, the Concept of Judicial Review was introduced by the landmark case of Marbury v. Madison. In this case three issues were raised, firstly, whether the Supreme Court has the power to issue the writ of Mandamus, Secondly whether the Supreme Court has the power to strike down any laws made by the legislature and thirdly, whether Congress has the power to extend the powers of the Supreme Court. In the judgement given, it was held that, Supreme Court not being an appellate court, does not have the power to issue writ of mandamus. Finally it was held that the Supreme Court does have the power to strike down unconstitutional laws made by the congress. This judgement is what established the concept of judicial review in the American Constitution.

Judicial Activism is a doctrine that implies “use of the court as an apparatus for intervention over the decisions of policymakers through precedent in case law.”266 This pro active role of the court has led to the Judiciary into diluting the importance of the doctrine of separation of powers.


Independence of the Judiciary is an important feature of a representative democracy like India. Judicial restraint is necessary to maintain this independence. In Aravalli Golf Course V. Chander Haas, the following was stated;

“If the judiciary does not exercise restraint and overstretches its limits, there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the power, or even the independence of the judiciary.”267

Judicial Restraint is the anti-thesis of Judicial Activism. Wherein, under judicial restraint, the importance of restraint on part of the Judges while giving judgements, orders, decision is emphasised versus activism, which generally consist of doing away with the provisions of law in forming decisions.

Judicial restraint is therefore important is maintaining harmony in functioning among the three organs of the government and also for the judiciary to preserve its independence.

Restraint on part of the judges will help in promoting more lenient scrutiny of laws made by the Legislature and lead to more efficient working of both the organs. In order for the Judiciary to act as a body of checks and balance among the three organs of the government, it is important that the judges follow the provisions of the law strictly rather than basing their decision on impulse and caprices. The concept of restraint helps in achieving two objectives. Firstly, it acknowledges the importance of the role played by the other two organs and secondly it protects and upholds the independence of the Judiciary. 268


Francis Bacon had remarked in 1625;

“Let judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty”.269

Throughout history, strong rulers facing resistance from an unappreciative judiciary have resorted to all kinds of measures to bring judges to heel. On 12 August, 2016, Honorable Chief Justice of India T.S. Thakur remarked;

“Don’t force us to ask where the files are. Don’t force us to judicially intervene. Don’t try to bring this institution to a grinding halt. That’s not the right thing to do.” “Send the file back to us if you have a problem with a name suggested by us. We have no problem re-looking into it… But this kind of logjam…….whole situation is getting very difficult” “Do you know that most High Courts are working with only 40 per cent of their sanctioned strength?? People are languishing in jails for 13 years for a hearing”.270

This was in relation to delay in appointment in judges. It is an example of how the judiciary has taken a proactive stance.

As had been already stated in the introduction, in democratic countries, the judiciary is given a place of great significance. Courts constitute a dispute resolving mechanism. The primary function of courts is to settle disputes between one citizen and another but this function also extends to settling disputes between citizens and various organs of the state.

No system based on a written constitution can be effective without an independent and impartial arbiter of disputes. This indispensable role is dispensed by the Judiciary. Till date, judicial activism has been stigmatized as judicial terrorism, judicial adventurism, judicial anarchy, judicial aberration, judicial emergency, judicial tyranny, judicial over-reaching, judicial takeover, judicial usurpation of power etc.

But, the importance of judiciary cannot be undermined. So, in order to mitigate the conflict between judicial review and separation of powers, a middle path has to be traversed known as the exercise of “judicial restraint”. Judicial restraint is consistent and contemporary with the balance of power among the three independent branches of the state. It not only recognises the equality of other branches of law with judiciary but it also fosters the equality by minimising inter branch interference by the judiciary.

The need of the hour is judicial restraint. Justice Markandey Katju very aptly remarked in Priyadarshini v. The Secretary to Government271 that judicial restraint has tow values; “firstly it not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary and secondly, it tends to protect the independence of the judiciary.” He asked ; “If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators.”

So, while judicial review and activism is in furtherance of public interest and social justice, it should not be detrimental to the sacrosanct bond of “separation of powers”. For the effective functioning of a democracy, all the three branches have a pivotal and indispensable role and each other’s functioning must be monitored by the other and not encroached.