judiciary surpasses the route in the form judicial activism
Introduction: What is Judicial Activism?
Judicial Activism refers to the proactive role played by the judiciary in protecting the rights of citizens and upholding constitutional values, often by stepping into the domains of the legislature and executive. In doing so, the judiciary “surpasses the conventional route”, meaning it goes beyond the traditional function of interpreting laws and starts creating or influencing policy and governance decisions.
This phenomenon usually arises in countries like India and the U.S., where the judiciary interprets a written constitution and is empowered with judicial review.
Constitutional Basis for Judicial Activism in India
Article 13 – Allows courts to declare laws inconsistent with Fundamental Rights as void.
Article 32 – Empowers citizens to directly approach the Supreme Court for enforcement of Fundamental Rights.
Article 226 – Similar power for High Courts.
Article 142 – Grants Supreme Court power to do “complete justice”.
These provisions allow the judiciary to act when the legislature or executive fails to protect the Constitution or rights of individuals.
When Does Judiciary “Surpass the Route”?
When it enters policy-making domain – e.g., laying down guidelines where no law exists.
When it issues binding directions to the executive – beyond statutory obligations.
When it fills legislative vacuum – creating law rather than interpreting it.
This surpassing of conventional judicial role is often justified in Public Interest Litigations (PILs), where there is no other effective remedy.
Key Case Laws Supporting Judicial Activism in India
1. Kesavananda Bharati v. State of Kerala (1973)
Judicial Innovation: Propounded the Basic Structure Doctrine.
Judiciary overruled constitutional amendments that violated “basic structure”.
Significance: First time the court limited the power of Parliament in amending the Constitution.
Judicial Activism: Court safeguarded constitutional values despite no explicit textual limitation.
2. Maneka Gandhi v. Union of India (1978)
Issue: Passport impounded without giving reasons.
Judicial Expansion: Interpreted Article 21 (Right to Life and Personal Liberty) to include due process of law and expanded the scope of personal liberty.
Activism: Court read new rights into Article 21 — e.g., right to travel abroad, right to privacy, etc.
Effect: Judiciary assumed a more assertive role in protecting civil liberties.
3. M.C. Mehta v. Union of India (1986 onwards)
Environmental PILs: Series of cases where Supreme Court laid down laws on pollution control, vehicular emissions, and industrial safety.
Example: Closed tanneries near Ganga, directed CNG use in Delhi.
Judicial Activism: Court created environmental norms in absence of detailed legislation.
Criticism: Court acted as policy-maker and regulator.
4. Vishaka v. State of Rajasthan (1997)
Issue: No specific law on sexual harassment at the workplace.
Judicial Innovation: Laid down the Vishaka Guidelines.
Court held that in absence of law, international conventions (CEDAW) and constitutional provisions can be read to fill the gap.
Judicial Activism: Court legislated in vacuum until Parliament enacted the Sexual Harassment of Women at Workplace Act in 2013.
5. Prakash Singh v. Union of India (2006)
Issue: Police reforms.
Court issued binding directives to reform police structure: fixed tenure, separation of investigation and law & order, establishment of Police Complaints Authority, etc.
Activism: Court acted in executive domain due to government inaction.
Criticism: Judiciary overstepped into administration.
6. Common Cause v. Union of India (2018)
Issue: Passive euthanasia and living wills.
Court recognized right to die with dignity under Article 21.
Judicial Activism: Court created legal framework for passive euthanasia in absence of law, pending legislation.
Criticism of Judicial Activism (When Judiciary “Overreaches”)
Violation of Separation of Powers – Judiciary entering legislative or executive domain.
Democratic Deficit – Judges are not elected; judicial law-making lacks democratic legitimacy.
Policy Incompetence – Judges may not have administrative expertise.
Judicial Overreach vs. Activism – When activism becomes excessive and unchecked.
Judicial Restraint vs. Judicial Activism
| Aspect | Judicial Restraint | Judicial Activism |
|---|---|---|
| Role | Passive interpreter | Active protector |
| Approach | Waits for cases | Initiates suo moto |
| Intervention | Limited | Extensive |
| Policy making | Avoids | Engages |
Conclusion
Judicial activism in India has often acted as a corrective mechanism in face of legislative or executive inaction. However, when the judiciary starts surpassing the route — going beyond its constitutional mandate — it risks undermining the doctrine of separation of powers. While landmark cases like Vishaka, Prakash Singh, and M.C. Mehta reflect judiciary’s boldness in upholding justice, they also raise questions about institutional boundaries.
A balanced judicial activism, guided by constitutional morality and democratic accountability, is essential for maintaining the legitimacy of judicial review in a constitutional democracy.
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