Whether judicical activism has undermined or strengthened Parliamentary Democracy in India? Discuss. (2018, 20 Marks)
The answer depends on what “parliamentary democracy” means. If it means free elections, an accountable executive and a working federation, activism has mostly strengthened it. If it means the legislature’s authority to settle contested questions, activism has eroded it. On balance it has strengthened the machinery more than it has weakened the sovereignty, at a growing cost.
The theoretical frame
- John Hart Ely (Democracy and Distrust, 1980): review is legitimate when it reinforces representation — clearing blocked political channels and protecting minorities whom majorities ignore.
- Ronald Dworkin (Freedom’s Law, 1996): democracy means equal concern and respect for citizens, not bare majority rule, so rights-based review can complete democracy rather than defeat it.
- Jeremy Waldron (“The Core of the Case Against Judicial Review”, Yale Law Journal, 2006): where democratic institutions work and people reasonably disagree about rights, judges resolving those disagreements usurp the citizens’ right to decide. His case is conditional, and it weakens where legislatures do not work.
How activism strengthened it
- Cleaner electoral competition: Union of India v. ADR (2002) compelled candidates to disclose criminal records and assets, and Parliament’s dilution was struck down in PUCL (2003); Lily Thomas (2013) made disqualification on conviction immediate; PUCL (2013) introduced NOTA; the electoral bonds scheme was struck down in February 2024.
- Protecting parliamentary government in the states: S. R. Bommai (1994) made the floor test the proper test of majority and subjected Article 356 to review; Kihoto Hollohan (1992) opened Speakers’ anti-defection rulings to review; courts ordered prompt floor tests (Karnataka 2018, Maharashtra 2019); Subhash Desai (2023) faulted the Maharashtra Governor’s floor-test call; the Telangana Speaker was given three months to decide defection petitions (July 2025).
- Guarding Parliament against the executive: Krishna Kumar Singh (2017) held that re-promulgating ordinances is a fraud on the Constitution.
- Guarding the democratic core: basic structure (Kesavananda, 1973; Indira Nehru Gandhi v. Raj Narain, 1975; Minerva Mills, 1980) placed democracy, free elections and judicial review beyond amendment.
- Rights and gaps: expanded Article 21 and gap-filling guidelines (Vishaka) gave voice to those whom majorities ignored.
How it undermined it
- Encroaching on law-making: guidelines, Article 142 orders and policy directions (highway liquor, cricket administration) occupy space belonging to elected members. This blurs the separation of powers and lowers Parliament’s incentive to legislate.
- The democratic deficit: the NJAC Act, passed almost unanimously by Parliament and ratified by the states, was struck down in 2015. Judges decided their own appointment power, unreviewably — Waldron’s objection at its sharpest.
- Dependence: hard questions are outsourced; Parliament has not revisited appointments since 2015.
- Self-assigned deadlines: timelines and “deemed assent” for Governors (April 2025) went beyond the text and were repudiated by a Constitution Bench in November 2025.
- Delay in core functions: the Supreme Court’s backlog is at record levels, and slow decisions on electoral bonds and Article 370 let executive action become a fait accompli. Under-reach damages democracy too.
Weighing the two
The strengthening column is mostly Ely-type repair: transparency, floor tests and curbs on ordinances fixed channels that politicians would not fix because they gained from the defects. The undermining column is Pratap Bhanu Mehta‘s “judicial sovereignty”: policy chosen without accountability, and appointments kept in-house.
Conclusion
Judicial activism has strengthened parliamentary democracy as a system of accountable, competitive government. It has undermined it as a system of legislative self-rule wherever the Court chose policy or governed itself. The balance is positive but thinning, since each intervention excuses the next legislative abdication. The corrective is a Parliament that deliberates and a Court that confines itself to repairing democracy.