Debate Over Judicial Activism | 03 May 2025

Source: TH 

Why in News? 

India is witnessing a growing debate on the judiciary's expanding influence, with concerns raised about 'judicial despotism' clashing with the view that Supreme Court interventions are crucial for upholding constitutional values.  

• Some of the recent judgments have ignited discussions on the separation of powers and whether the judiciary has overstepped its constitutional limits. 

What is Judicial Despotism? 

• About: Judicial Despotism refers to a situation where the judiciary, especially the higher courts, exercises excessive or unchecked power, often going beyond its constitutional mandate, thereby undermining the roles of the legislature and the executive.  
• Key Features: 
  • Overreach into Other Organs: When courts start making laws (legislative function) or directly intervening in administrative decisions (executive function) beyond constitutional limits. 
  • Frequent Use of Extraordinary Powers: For example, frequent invocation of Article 142 (which allows the Supreme Court to do “complete justice”) without clear legal or constitutional backing. 
  • Supersession of Democratic Will: When unelected judges consistently override decisions made by democratically elected governments without adequate justification. 
  • Lack of Accountability: The higher judiciary enjoys wide powers with minimal external accountability, which, if misused, can lead to authoritarian tendencies. 

What are the Instances Related to Judicial Activism and Restraints? 

Instances Showing Judicial Activism 

• Broad Use of Article 142: The SC has, in some cases, been accused of issuing wide-ranging directives (e.g., in mob lynching, Babri Masjid, divorces on irretrievable breakdown) where existing laws already provided a framework. 
• Other Instances of Judicial Activism: 
  • Directing states to distance liquor shops from national highways (500 meters) to prevent road accidents. 
  • Assuming the power to issue writ of mandamus against the President and Governors for assenting to state bills. 
  • Providing compensation for victims of the Bhopal gas tragedy (1989). 
  • Issuing guidelines against sexual harassment at the workplace (1997). 
  • Granting permanent commissions to women officers in the armed forces (2024). 
• Democratic Legitimacy: Judicial activism upholds Constitutional supremacy by ensuring elected governments act within constitutional limits, as affirmed by SC in I R Coelho v. State of Tamil Nadu (2007). 

Instances Showing Judicial Restraint 

• Selective Intervention Only: The SC has generally upheld existing public policies and rarely invalidates laws. It upheld demonetisation, Rafale deal, NRC in Assam, and UAPA bail restrictions. It refused to recognise same-sex marriage, dismissed Pegasus probe calls, and did not hear key cases on EVMs and CAA.
• Recognised Judicial Restraint: In Shreya Singhal Case (2015), and NJAC case (2015), the Court acted to protect fundamental rights and judicial independence, not to assert supremacy. 
• Delay in Hearing Key Cases: Petitions related to Citizenship (Amendment) Act, 2019, Electronic Voting Machine (EVM) and Pegasus surveillance have seen little progress, raising concerns about selective judicial passivity. 
• Acceptance of Sealed Evidence: SC has been criticised for undermining transparency and due process (e.g., in Rafale and bail cases). 

What is Judicial Review? 

• About: Judicial review refers to the power of constitutional courts (SC and HC) to examine the constitutionality of legislative enactments and executive actions.  
• Constitutional Provisions: Though the term “Judicial review” is not explicitly mentioned in the Constitution, it is implied in various articles of the constitution such as: 
  • Article 13, which declares any law inconsistent with fundamental rights as void.  
  • Articles 32 and 226 which entrusts the roles of the protector and guarantor of fundamental rights to the SC and HC. 
  • Articles 131–136 empowers the Supreme Court to adjudicate disputes involving individuals, states, and the Union (interpretations by the SC become binding law across all courts). 
  • Article 137 grants the SC power to review its own judgments 
• SC’s Stands on Judicial Review: 
  • In Kesavananda Bharati v. State of Kerala (1973) and in Indira Gandhi v Raj Narain case (1975), SC held judicial review as a basic feature of the Constitution, immune from even constitutional amendments. 
  • In the Minerva Mills Case (1980), the SC reiterated that limited government and constitutional supremacy are foundational principles, safeguarded through judicial review. 
• Examples of Judicial Review: 
  • In Shreya Singhal v. Union of India (2015), SC struck down Section 66A of the IT Act as unconstitutional for violating freedom of speech and expression under Article 19(1)(a). 
  • In Supreme Court Advocates-on-Record Association v. Union of India (2015), (or Fourth Judges Case) SC struck down National Judicial Appointments Commission (NJAC) Act and 99th Constitutional Amendment, protecting judicial independence.

Way Forward 

• Exercise Judicial Restraint: The judiciary should practice judicial restraint, as advocated by the Supreme Court, ensuring that it does not encroach upon the roles of the legislature or executive.  
• Promote Judicial Accountability: Internal reforms such as reasoned judgments, peer reviews, and performance audits can enhance accountability while preserving judicial independence and public trust. 
• Institutional Balance and Dialogue: All three organs-judiciary, legislature, and executive must adhere to their constitutional spheres, and institutional dialogues should be encouraged to reduce friction and promote separation of power. 
• Ensuring Checks and Balances: A robust mechanism for checks and balances should be established among all three organs to ensure a fair distribution of power, preventing any institution from overstepping its mandate, while upholding the supremacy of the Constitution.