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This article is written by Shourya Mehra.


According to the Social Contract Theory, the man living at in early age gave up some rights to live together in a community and be governed by an authority (an individual or a group of individuals). It is from here that the roots of modern democracy began to grow in the real sense. The current democratic setup included three main organs of government ie. The Legislature, The Executive, and The Judiciary. These organs derived all authority from and discharged their responsibilities within the framework of a constitution, which is the grundnorm. The theory of separation of powers given by Montesquieu is one of the cardinal principles which guide the working of these three organs in the sense that the different branches of government exercise different powers to avoid concentration of powers and preserve human liberty and prevent the idea of monarchy from returning.

To know more about Judicial Activism v. Judicial Restraint in brief, please refer to the video below:

The Constitution of India envisaged a system of government based on the same doctrine even though not it is not expressly mentioned in it. ‘Separation of Powers’ is one of the basic features of the Indian Constitution has also been laid down by Supreme Court in the matter of State of Bihar v Bal Mukund Shah[1]. The primary function/role of the Judiciary is to settle the disputes as well as judge the legality of an executive action following the Rule of Law.

The Indian Judiciary followed the principles borrowed from its Western counterparts. Thus, in the early period of its creation, the Indian Supreme Court mostly followed the Anglo-Saxon legal traditions, which insisted that the judge only reflects the law regardless of the anticipated consequences, considerations of fairness, or public policy. But, the problem was that these high ideals were suited to the west and not to a semi-feudal, semi – backward society in India which still had to overcome a lot of issues thus?

Meaning and Origin

The terms Judicial Activism and Judicial Restraint have no strict meaning as such; these are understood by different people in different ways. In a more straightforward sense, Judicial Activism and Judicial Restraint are the two ways/approaches to how a judge judges, that is, how he applies the law to facts in the cases put before him.

Judicial Activism and Judicial Restraint are the two facets of the uncourageous activity and pragmatic wisdom assigned to the Judiciary by the constitution. [2]The two are inextricably interwoven and yet, are opposites of each other.

The term “Judicial Activism” was introduced by Arthur Schlesinger Jr. in a January 1947 Fortune magazine titled ‘ The Supreme Court:1947’. It is more of a relative term-

  • To some, the term indicates the positive and assertive role played the Judiciary in enforcing the Constitutional rights, especially the Fundamental Rights ;
  • To others, it means disciplining and, if need be, dressing down the Executive and the Parliament
  • To some others, it signifies performance by Judiciary of some functions which do not strictly fall in the domain and jurisdiction of the Judiciary and which ought to have been performed by the other organs of the state
  • For some, it is an innovative measure initiated by the Supreme Court towards attaining constitutionality ordained objectives in the form of Public interest litigation (PIL)
  • To some others still, it may mean justice to the oppressed, depressed, suppressed, and helpless citizens who cannot approach the court.

Judicial activism refers to the philosophy which motivates judges to depart from the traditional precedents and doctrines in favor of progressive and new social policies[3] . At the same time, Judicial Restraint is a judicial philosophy that asserts that judges should hesitate to strike down laws unless they are unconstitutional, ie Judges should decide the case on the basis of the original intent of the constitution framers, Precedents and the objective of the action/ legislation in question. Judicial Activism or Judicial Restraint by itself is neither a virtue nor a vice. It all depends on case to case and situation to situation and person to person.

Trends in Indian Judiciary

Since the period of its creation until the early 1960s, the supreme court followed the traditional Anglo- Saxon ideals where the approach of judges was passive and conservative. Slowly and steadily, the courts realized that law cannot and does not provide for every contingency and the vagaries and varieties of human conduct. Many times it is open-ended, and there is room left for doubt and disagreement, which has to be interpreted by the Judiciary, and by doing this, the judge participates In the law-making process. In a welfare state and developing countries like India, which follows the ideals of equality, liberty, socialism and has such complex socio-economic and political conditions, it is impossible for Judiciary to confine itself only to interpret the laws. The Judiciary has to fill up the gaps overlooked by the legislature and also compel the executive to perform their lawful functions.

After Justice Gajendragadkar became the Chief Justice in 1964, there was a change in the philosophy followed by the Indian Judiciary. He expressed awareness of the functional significance of law as the means and the instrument for the fulfillment of the socio-economic needs of the society. Much of the Labour laws which he developed were ‘judge-made law. ’ A Great brawl ensued between the Judiciary and the executive with regards to the deference of the constitution and the subsequent genesis of fundamental structure doctrine. In 1967 the Supreme Court in Golaknath v. State of Punjab[4] held that the fundamental rights in Part III of the Indian Constitution could not be amended, even though there was no such restriction in Article 368, which only required a resolution of 2/3rd majorities in both Houses of Parliament. Subsequently, in Keshavanand Bharti v. the State of Kerala[5], A 13-judge bench of the Supreme Court overruled the Golak Nath decision. Still, it held that the basic structure of the constitution could not be amended. The point to be noted is that nowhere in article 368 of the constitution has it been mentioned that the Basic Structure can not be amended, all this has been arrived upon by judicial decisions only.

It can be said that the modern trend of judicial activism began in 1973 when the Allahabad High Court in the landmark case of Indira Nehru Gandhi v. Raj Narain[6] declared the candidature of Indira Gandhi as invalid and the following 39th Amendment passed by the Indira Gandhi Government, including the clause (4) of Article 329-A as annulled and declared unconstitutional.

During the period of emergency from 1975-77, the Supreme Court was not very active and remained passive as the fundamental rights were suspended, and press censorship was enforced, due to which there could be no public hearing or possible reporting of the cases.

Following the emergency period, there was liberal interpretation of fundamental rights and relaxation of judicial traditions and standards. In Maneka Gandhi v. Union of India[7] the scope of the term ‘Liberty’ in Article 21 was widened, and the requirement of substantive due process was introduced by judicial activism in Article 21. Along the similar lines, interpretation of the term ‘Life’ was widened to include the Right to privacy, Right to livelihood, Right to Food, Right to safe drinking water, Right to Education, etc.

In the mid 90s, the supreme court also started adjudicating on political matters where there was the possibility of abuse of power by the Union government. In S. R. Bommai v. Union Of India[8], BJP governments in various states were dissolved by the Congress-led Central Government on the pretext of internal disturbance and breakdown of constitutional mechanism in these states. The validity of these orders was challenged in the case and the Supreme Court struck down the order of Presidential Rule in some states as being arbitrary use of power by central government.

Public Interest Litigation (PIL)

Another instrument developed by the courts which require a separate mention is the PIL. According to the traditional rule of locus standi and Jus Tertii, the right to move to court for judicial remedy is available only to the ones whose legal right has been infringed. Due to this rule, a large section of the Indian society was unable to seek justice and approach the courts. The Supreme Court taking a dynamic approach and established the concept of Public Interest Litigation (PIL) where any member of the public or social action group could approach the court on behalf of a victim who himself is unable to do so, due to poverty, disability, or socially or economically disadvantaged position. This can be considered the single most important contribution of Judicial Activism of the late 1980s and early 1990s. This period saw a large number of PILs being filed with regards to:

  • The prisoner’s rights and prison administration;[9]
  • The protection of a bonded contract and child labor;[10]
  • The protection and preservation of the environment, ecology, forests, marine life, wildlife, historical monuments, etc; [11]
  • The widening of the scope of the right to life and personal liberty;
  • The corruption and crime involving holders of high political offices;[12]
  • For activating the investigative process;[13]
    In many cases, the Supreme Court even admitted letters addressed to the court, newspaper reports and even took Suo Moto action and treated these as writ petitions under Article 32 of the Constitution. Thus a new kind – Epistolary Jurisdiction (by writing epistles to the court) was evolved to provide relief to a significant section of the society.

However, in this process, the courts of India had to face criticism in the name of ‘Judicial Overreach’ ie failure to observe judicial restraint.

Judicial Activism v. Judicial Restraint

Broadly classified as the two types of judicial philosophies, Judicial activism is the liberal interpretation of the statutes and constitution to further contemporary values and conditions. While Judicial Restraint stands for a strict interpretation of the constitution and limiting the power of judges to strike down in a law using Judicial Review.

 At times, when corruption has crept into every organ of state, there is a callous attitude of executive, criminalization of politics, ignorant parliament, and fractured mandate, the Judiciary cannot effort to sit idle and silent spectator. The Judiciary has to take a pro-active role and bring justice, equity, and protection from arbitrariness. But at the same time, it has to be remembered that the Court is not a panacea for all problems of the society and the judicial powers also have limitations. Otherwise, Judicial Activism may become judicial despotism or Judocracy. Only in cases of illegality/ unconstitutionality should the courts intervene, i. e. , when there is no room for any more doubt.


Concluding one can say that, Government is man’s unending adventure. No system is perfect in all senses. Some free play in the joints is necessary and legitimate. So far, the court has abided by the constitution and has valiantly fulfilled its duty of upholding the goals and ideals of the Constitution of India. With its activism, the Supreme Court has only protected the rights of the oppressed and the downtrodden majority from the unconstitutional acts of the legislature and the executive. Some amount of friction and tension between the three organs of the government is inevitable. What is essential is for all to appreciate this truism and function accordingly.


[1] (2000) 4 SCC 640

[2]Pandey, J. N. , ‘Constitutional Law of India’ 51st edition, p. 4-8

[3] Black’s Law Dictionary

[4] AIR 1967 SC 1643

[5] AIR 1973 SC 1461

[6] AIR 1975 SC 2299

[7] AIR 1978 SC 597

[8] AIR 1994 SC 1918

[9] D. K. Basu v. State of West Bengal AIR 1997 SC 610; Khatri v. State of Bihar, AIR 1981 SC 928

[10] M. C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699

[11] M. C. Mehta v. Union Of India AIR 2004 SC 1193 ; K. I. A. D. B. v. Sri C. Kenchappa, AIR 2006 SC 2038

[12] M. Sadawan v. G. C. D. A. , AIR 2005 Ker 14

[13] Vineet Narain v. Union of India, AIR 1998 SC 889

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