Judicial Activism vs. Judicial Restraint in India

Indian judiciary holds a pivotal function in moulding the constitutional and legal landscape of  the country. It performs the function of custodian of the Constitution, which means it assures  that the actions of the legislature and the executive are in tune with the principles laid down by  the Constitution itself. In this regard, judicial activism and restraint are opposing philosophies  by which the courts interpret the laws and settle disputes. Judicial activism is seen as a more  assertive role for the judiciary in mitigating legal and social issues. In contrast, judicial restraint  emphasizes adhering to the original intent of the Constitution and the principle of separation  of powers.¹ 

The argument on judicial activism or restriction has been raging in India since its independence  in 1947. The Indian judiciary has sometimes assumed the role of an activist Supreme Court to fill the legislative or executive gaps and guarantee justice in governance areas that have almost  surrendered. In other cases, it has shown restraint in offering the legislature and executive the  decisional authority to maintain the balance of power. Different shades of opinion have weighty  implications for democratic governance, the rule of law, and the protection of fundamental  rights. 

Judicial activism in India gained prominence during the period following the emergency. In  this period, the Supreme Court broadened the spectrum of fundamental rights and developed  the mechanism of public interest litigation, PIL. The intervention of the judiciary in the name  of protecting constitutional values by taking adversarial stances with state structures on matters  of social justice, environmental issues, and governance failures was lauded. On the other hand,  critics point out that too much activism leads to taking over parliamentary prerogatives and  invading executive boundaries, which raises the evil of excess in the letter of the law.² 

In contrast, judicial restraint is a doctrine that stresses how courts should maintain self-restraint  and respect for the democratic process. Proponents of judicial restraint argue that the courts  must interpret laws and not enact them, thereby leaving policy formulation to the elected  representatives. They emphasize that excessive judicial intervention disrespects democratic institutions and disrupts the delicate constitutional balance between the three governmental  organs.³ 

The other dimension to the debate on judicial activism and judiciary restraint becomes  extensively relevant in India, mainly due to her complicated socio-political architecture where  judicial intrusions invariably dictate national policy and affect governance. This would lead us  to analyse landmark cases, throwing light on the transition of the judiciary from activism to  restraint. The subsequent sections will discuss, through a case analysis, how the Supreme Court  has maintained this delicate balance and its consequences for Indian democracy.⁴ 

Analysis of Judicial Activism in Indian  Constitution

Judicial activism in India refers to the judiciary’s more proactive role in interpreting laws and  delivering justice beyond its narrow adjudication function. This has conferred a measure of  power on the judiciary to protect constitutional values, enforce fundamental rights, and check  the abuse of power by the executive and legislature. The concept gained importance, especially  after the trough of the emergency period of 1975-77 when the judiciary began to re-establish  its independence in response to the tremendous loss of credibility before the public.⁵ 

Key features  

1. Public Interest Litigation: Public Interest Litigation (PIL) has endowed judicial  activism with a critical weapon and has broadened users’ access to justice. It makes it  possible for non-government citizens and corporate entities (NGOs) to approach courts  on behalf of some issues of public concern. Relaxing the conventional strictness of  Locus Standi, Pil barren the judiciary like a social means of justice for the hitherto  marginalized attention of communities.⁶ 

2. Expansion of Fundamental Rights: In the guise of judicial activism, the Indian judiciary  enlarged the scope of articles 14- right to equality, article 19- freedom of expression  and expression, and article 21- right to life and personal liberty to inscribe into these  articles several socioeconomic and environmental rights. Among such rights are that of  a clean environment, privacy, and education. 

3. Policy Directives: The courts played a remarkable role in the government in  multidimensional aspects, including environmental conservation, human rights, and  governance. These guidelines define how the administrative and legislative bodies  should work within the constitutional framework to safeguard citizens’ rights.⁷ 

Landmark Judgements  

1. Kesavananda Bharati v. State of Kerala  

This case, which adopted this form, challenged the constitutional validity of the Kerala Land  Reform Law, which sought to impose restrictions on the management of religious institutions.  The Supreme Court established the doctrine of the basic structure, that even if Parliament is  empowered to amend the constitution, it cannot touch the fundamental structure of the  constitution. It thereby made a plea for limiting the powers of Parliament and guaranteed that  basic constitutional edicts like democracy, secularism, and judicial independence shall always  be inviolable.⁸ 

2. Maneka Gandhi v. Union of India  

The government seized Maneka Gandhi’s passport without mentioning any reason, thus  compelling the latter to challenge the validity of the action under Article 21. The Court held  that life and personal liberty cannot be restricted to mere animal existence but would include  the right to live with dignity and under due procedure. This has substantially widened the  horizon of Article 21 to include procedural justice, strengthening the principle that any law that  may affect the life or liberty of a person must be just, fair, and reasonable.⁹ 

3. Vishaka v. State of Rajasthan (1997) 

This case is the outcome of the sadistic gang rape of Bhanwari Devi, to whom the social worker  fights against child marriages in Rajasthan. There was no legal structure for sexual harassment  at the workplace; therefore, Vishaka and other NGOs moved to PIL. The Supreme Court had  to promulgate guidelines relating to sexual harassment in workplaces, and it is awaiting  legislative action before such canvassing. This case showed how the judiciary could fill  legislative gaps and have an influence on the promulgation of the 2013 Law on Prevention,  Prohibition, and Redressal of Sexual Harassment of Women at Workplaces.¹⁰ 

4. MC Mehta v. Union of India (1986) 

Environmental activist M.C. Mehta filed a search action against industries causing havoc to  the environment by making oleum gas leaks from Shriram Food and Fertilizer Ltd. The  Supreme Court enacted the doctrine of absolute liability, nominating that industries engaged in  hazardous activities are strictly liable for damages arising from those activities, irrespective of  intent or negligence. This decision has further fortified environmental jurisprudence in the  country and opened the way for subsequent interventions, like imposing a ban on polluting  vehicles in Delhi and controlling industrial establishments near the Taj Mahal.¹¹ 

5. Shayara Bano v. Union of India (2017)  

Shayara Bano, a victim of Triplet Talaq (Talaq-e-Bid’ah), challenged the constitutionality of  this practice, arguing that it was against justice and gender equality. The Supreme Court  declared Triple Talaq unconstitutional, holding it to be arbitrary and violative of the  fundamental rights of Muslim women guaranteed under Articles 14 and 21. The significance 

of this judgment in gender justice and women’s rights prompted the government to pass the  Muslim Women’s Law (Protection of Marriage Rights), 2019, which became immediately  operational.¹² 

Criticism of Judicial Activism: Judicial Overreach  

Although judicial activism has contributed significantly to constitutional governance, it was  also criticized for judicial overtaking. Critics argue that activism sometimes invades legislative  and executive functions, undermining the separation of powers. Some decisions were seen as  inconsistent or excessively expansive, leading to concerns about the predictability of the law.  The intervention of the judiciary in specific political issues has raised debates about its role in  governance. Many judicial guidelines require executive action, which can be slow or  ineffective, limiting its practical impact. The judiciary lacks application mechanisms, with the  government to implement its decisions. 

These rights are transforming India’s rights into a political issue. The most significant action is  undoubtedly the judicial activism that has established the revolutionary and structural core of  securing fundamental rights as the necessary conditions for their realization. Of course, such  action must be taken at times in balance with restraint if harmony is to be preserved among the  branches. This evolutionary aspect of judicial activism will continue to shape the legal  landscape of India and, therefore, is one of the most significant parts of the country’s  constitutional architecture.¹³ 

Judicial Restraint in Indian  Constitution

Judicial restriction has a limited role for the judiciary in governance, encouraging minimal  interference in the legislature and executive branch operations. The courts of judicial  restrictions are preceded by reading statutes narrowly and not being concerned with the  exercise of policy formulation. This principle guarantees the doctrine of the separation of  power and does not allow non-elected judges to manage democratic institutions. Below is an  elaborate analysis of some notable cases that represent judicial restriction in India.¹⁴ 

Landmark cases  

1. ADM Jabalpur v. Shivkant Shukla (1976) 

This case, better known as the habeas corpus case, is one of the most debated cases illustrating a contraction of judicial power. During the emergency proclaimed by Prime Minister Mrs.  Indira Gandhi from 1975 to 1977, fundamental rights were suspended, including the right to  life and personal liberty under Article 21. The question was whether the Supreme Court had  jurisdiction to grant a remedy of habeas corpus during an emergency. 

By a majority of 4:1, the Court upheld the government’s authority to suspend fundamental rights, ruling that a citizen could not contest her detention during an emergency, even if it were arbitrary or without justification. The judgment of the majority, delivered by Chief Justice A.N.  Ray, relied on a strict interpretation of the law, which held that it could not question executive  action in extraordinary situations. 

However, this judgment was criticized for violating fundamental rights and disregarding  constitutional morality. Justice H.R. Khanna, in his lone dissent, decried the unfettered  discretion of the executive by stating that the right to life was inalienable and could not be  suspended. Many decades later, in K.S. Puttaswamy v. Union of India (2017), the Supreme  Court struck down the ADM Jabalpur case, describing it as one of the blackest decisions in the  history of Indian jurisprudence.¹⁵ 

2. State of Rajasthan v. Union of India (1977) 

In the state of Rajasthan v. Union of India (1977), the Supreme Court exercised judicial  restraint. It refused to intervene in what it considered a political decision to dissolve state  governments. These proceedings arose after the Janata party came to power at the center and  knocked out several Congress-led state governments under Article 356 (President’s rule) in the  aftermath of the emergency. The states affected by this order went to the Supreme Court, alleging that the dissolution was arbitrary. 

It formally ruled in favor of the Union government, stating that the courts should not interfere  in matters where the President’s action regarding discretionary powers would not clear  constitutional illegality. The case fortified the idea that the courts should respect the separation  of powers and abstain from intruding into the executive domain. This case set a precedent for  all future cases concerning such matters in the president’s realm, guaranteeing that judicial  intervention in political affairs shall remain limited unless there is overt abuse of constitutional  provisions.¹⁶ 

3. Justice K.S. Puttaswamy v. Union of India  

The matter examined here centered on the fundamental right itself to privacy-the pruning of  government data collection policies such as the AADHAR program to its judicial restraint to  not wholly strike down the AADHAAR system along with declaring, by the Supreme Court,  that privacy is a fundamental right. 

The trial recognized the perils of excessive state surveillance and weighed individual rights  against those of the state in the beneficial schemes that were to come. The Supreme Court held  that AADHAAR was constitutionally valid but imposed limitations to avoid its misuse; for instance, it denied private entities demanding AADHAAR details. The judgment exemplified  judicial restraint by carefully constraining governmental authority without entirely invalidating  the policy. It has avoided overturning the formulation of executive policies and protected  fundamental rights – balancing judicial intervention and deference.¹⁷ 

Balancing Judicial Activism and Judicial Restraint  

The Indian judiciary has fluctuated between the two- the activism and restriction of their  activities as a constitutional guardian under the doctrine of separation of powers. The courts  have sometimes established an activist approach to fundamental rights, while in other cases,  they restricted the maintenance of democratic governance and institutional integrity.¹⁸ 

Navtej Singh Johar v Union of India (2018)  

One such example is Navtej Singh Johar V. Union of India (2018), in which the Supreme Court  decriminalized section 377 of the Indian Penal Code (IPC) that punished same-sex consensual  intercourse between consenting adults. The petition was filed on behalf of activists of the  LGBTQ+ community challenging the constitutional validity of Section 377 under Articles 14  (equality), 15 (prohibition of discrimination), 19 (freedom of expression), and 21 (right to life  and dignity). 

In an award that history has made, the said provision has been annulled on the ground that it  condemns same-sex consenting relations, stating that constitutional morality should supersede  social morality. The trial invoked the progressive constitutional interpretation drawing from  the international jurisprudence of the rights of human beings. Thus, by recognizing the rights  of individuals belonging to the LGBTQ+ community, the court adopted an activist approach to  defend fundamental rights and redress historical injustices.¹⁹ 

It upheld the judicial restraint in the Supreme Court Advocate on Records Association v.  Union of India (2015) with the annulment of the 99th Constitutional Amendment seeking to  introduce the National Judicial Appointments Commission (NJAC) in the collegial system of  judicial appointments. The court ruled that the NJAC Law was dangerous to judicial  independence since it permitted excessive executive intrusion into judicial appointments. In  rejecting the NHAC, the court did not suggest an alternative, thereby upholding the separation  of powers. The Supreme Court has also shown such measured restriction because of protecting  judicial autonomy by not overcoming legislative functions- like the last living effort of  instituting its²⁰ 

The Indian judiciary thus manages to strike a thin balance between activism and restraint; it  intervenes where fundamental rights are involved, as in Navtej Singh Johar, but restrains itself  from institutional governance matters, evidenced by the Supreme Court Lawyers Association.  This ensures that the judicial power is exercised with prudence without undermining the  principles of democracy. 

¹ NASIR KASAM SHEIKH -, Instruments of Judicial Control: Judicial Review & Judicial Activism and Need  for Judicial Restraint in India, 6 INT. J. MULTIDISCIP. RES. 1 (2024). 

² K. K Ghai, Judiciary: Functions, Importance and an Essential Quality of Judiciary, YOUR ARTIC. LIBR. 67  (2016), https://niu.edu.in/sla/online-classes/Judiciary-Functions,-Importance-and-an-Essential-Quality-of Judiciary.pdf.

³International Journal of Reviews and Research in Social Sciences, (Mar. 6, 2025),  

https://ijrrssonline.in/HTMLPaper.aspx?Journal=International+Journal+of+Reviews+and+Research+in+Social+ Sciences%3BPID%3D2016-4-2-10. 

⁴ V Sudhish Pai, Judicial Activism and Judicial Restraint, JUDIC. 88 (2022). 

⁵ Rishi Pandey, Judicial Activism in India, SSRN ELECTRON. J. 1 (2022). 

⁶ Evolution of Public Interest Litigation (PIL), https://www.legaleech.com/blogs/evolution-of-public-interest litigation-pil (last visited Oct 2, 2024).

⁷-, supra note 1. 

⁸ Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225  

⁹ Maneka Gandhi v. Union of India, (1978) 1 SCC 248

¹⁰ Vishaka v. State of Rajasthan, (1997) 6 SCC 241  

¹¹ M.C Mehta v. Union of India, (1986)AIR 1987 SUPREME COURT 1086. ¹² Shayara Bano v. Union of India, (2017) 9 SCC 1

¹³ Supriyo Ranjan, Judicial Activism – Is It Justified ?, 2 (1997). 

¹⁴ Pai, supra note 4.

¹⁵ ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 

¹⁶ State of Rajasthan v. Union of India, 1977 AIR 136

¹⁷ K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 

¹⁸ Id. 

¹⁹ Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

²⁰ Supreme Court Advocate on Records Association v. Union of India (2015) ,  MANU_SC_1183_2015