In the words of the then Prime Minister at the Conference of The High Court in April 2007,  “Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. The distinction between judicial activism and judicial overreach is indeed a subtle one.”

Though judicial activism has helped in widening the scope of fundamental rights and making them more accessible especially to the weaker sections of the society, it has also been criticised for violation of constitutional boundaries meant for each organ of the state. Judicial activism, if not checked with restraint, can easily transform into judicial overreach and violate the principle of separation of powers. In extreme cases, such judicial overreach can also result in ‘Judicial tyranny’ which is harmful for any healthy democracy.

Difference between Judicial Review and Activism in India

Former Chief Justice of India J. S. Verma asserted that judicial activism is valid when it stays within the bounds of legitimate judicial review. There should be no occurrence of judicial tyranny or arbitrary decision-making. Although the ideas of Judicial Review and Judicial Activism may appear alike, a differentiation exists between these two concepts. Some of the significant comparable points are as follows:

Transformation from Judicial Activism to Judicial  Overreach in India

Judicial overreach is a term used to describe a situation where the judiciary exceeds its powers by taking on roles that are traditionally the responsibility of the legislative or executive branches of government. In India, judicial overreach refers to instances where the judiciary has been seen as having overstepped its boundaries in interpreting the Constitution or making policy decisions.

The Indian Constitution grants the judiciary significant powers to safeguard the rights of the people and to interpret the Constitution. However, there have been occasions when the judiciary has been accused of encroaching on the powers of the other branches of government, and making policy decisions that should be left to elected representatives. Numerous instances of judicial overreach in India can be cited:

• The Supreme Court of India’s order banning the sale of liquor along national highways in 2016, which was seen as an encroachment on the powers of state governments to regulate the sale of alcohol.
• The Supreme Court’s decision to cancel 122 telecom licences in 2012, which was criticised for being based on a flawed interpretation of the law.

Though both concepts of Judicial Activism and Judicial  Overreach seem similar, their effects on society are completely different. The difference between these two concepts can be understood from the following table:

Recognizing the difference between “judicial activism” and “judicial overreach” is crucial for the effective operation of a country’s democratic framework. The separation and balance of powers are the central characteristics of the basic structure of the constitution. 

Factors Driving Judicial Activism in India

Increasing awareness of the fundamental rights under the constitution among citizens coupled with the prominent role played by social activists, NGOs and civil society organisations is one of the primary reasons for increase in litigation related to social issues. Government’s failure to address social issues like gender inequality, child labour, caste-based discrimination, etc. and failure of administrative agencies to provide timely and adequate relief to weaker sections of society is often highlighted by social activists through newspaper articles, books, social media posts, etc. Such a role of civil society has prompted the judiciary to take a proactive approach which has resulted in increasing instances of judicial activism. Following table highlights the fields/areas of judicial activism, issues covered under such areas and categories of social activism groups.

Judicial Activism vs. Judicial Restraint 

The rise in judicial overreach cases has ignited a discussion regarding judicial restraint as a means of prevention. Judicial Activism is the proactive role played by the Judiciary whereas Judicial restraints means self-control exercised by the Judiciary to limit itself only to the original intent of constitution makers.

Supreme Court Observations regarding Judicial Restraint

The core principle of judicial restraint is that the public’s will is most accurately represented through legislative institutions and that citizens should accept the outcomes of their political decisions. Policies are subject to change with a new government. Consequently, judges should refrain from creating new policies through their decisions. 

The Supreme Court of India is conscious of its limitations and practices self-restraint to avoid intruding into areas that are solely designated for the legislature and the executive. In the case of P Ramachandra Rao, a seven-judge constitutional bench of the Supreme Court stated: “The main role of the Judiciary is to interpret the law. It may establish principles, guidelines, and demonstrate creativity in areas that are left unaddressed by legislation. However, it cannot encroach upon the legislative domain, which is properly assigned to the legislature. The distinction between legitimate legislative action through judicial directives and the enactment of laws—an area reserved for the legislature—is not difficult to discern.”

To maintain the fragile balance of power among the different branches of democracy, the Supreme Court has consistently stressed the importance of judicial restraint in various cases:

• In the case of Almitra H. Patel vs Union of India (2000), the Supreme Court declined to instruct the Delhi Municipal Corporation on how to clean Delhi, stating that such matters were beyond its jurisdiction and that it could merely request the organization to fulfill its legal obligations. 
• In the K.Priyadarshini vs the Director of Elementary Education (2016) case, Justice Markandey Katju remarked, “According to the Constitution, the legislature, executive, and judiciary have distinct areas of responsibility. If any of these three entities exceeds their designated roles, the delicate equilibrium established by the Constitution will be disrupted. Thus, the judiciary must practice restraint and suppress the urge to function as a super-legislature. By exercising restraint, it will enhance its own respect and reputation.”

Purpose of Judicial Activism 

Through various cases relating to Bandhua Mukti Morcha, Bihar Undertrials, Punjab Police, Bombay Pavement Dwellers, Bihar Care Home cases etc., the judiciary has shown its firm commitment to participatory justice. Hence, the purpose of judicial activism is:

• To provide a base for policy design and implementation by complementing the  role of legislature and executive.
• To provide relief to the disadvantaged and aggrieved citizens through affirmative actions.
• To render decisions, which are in tune with the temper and tempo of the times. 
• To prevent arbitrary state action.
• In the present day of globalisation, the concept of judicial activism has a significant role, particularly in matters relating to violation of human rights, labour laws, custodial violations, environmental pollution, etc.

Judicial Activism and Its Pitfalls: Risks of Overreach and Disruption

Judicial Activism, when turned into overreach, has the potential to intervene and disrupt the proper functioning of the legislature/executive. Hence, it disturbs the equilibrium between the three organs of the State or the concept of separation of powers. Also, the  judiciary not being answerable to the public with any external control poses a very huge risk of exploitation of such wide powers by the judges who are not elected by the people. This undermines parliamentary democracy.

It can be said that the judiciary is an integral part of good and ethical governance in terms of upholding social justice. To achieve socio-economic development,  judicial activism is the greatest guarantee to society. At the same time, separation of power is an established fact in a parliamentary democracy. Therefore, striking a balance between parliamentary sovereignty and judicial activism is the need of the hour. Both should act in a spirit of reciprocal respect and faith rather than in a manner of the supremacy of one over the other.