Explain the concept of Judicial activism, and examine its impact on the relationship between executive and judiciary in India. (2007)
Judicial activism, a label first used by Arthur Schlesinger Jr. in a 1947 Fortune essay on the Roosevelt Court, describes a court that goes beyond declaring an act valid or void and prescribes what the other organs must do, then supervises them while they do it. In India its chief target has been the executive, and the result is a relationship that swings between supervision, confrontation and retreat.
The concept
- Basis: judicial review under Articles 13, 32 and 226; Article 141 (declared law binds) and Article 142 (“complete justice”).
- Techniques: relaxed standing and PIL after S. P. Gupta (1981); reading Part IV duties into Article 21; continuing mandamus, where a case stays open for years; binding guidelines pending legislation.
- Drivers: the post-Emergency search for legitimacy (Upendra Baxi), executive non-implementation and weak coalitions after 1989.
- Distinction: activism enforces a denied entitlement; overreach chooses among permissible policies the Court cannot administer.
Impact on executive–judiciary relations
| Arena | Judicial move | Executive response |
|---|---|---|
| Investigating agencies | Vineet Narain (1997): statutory CVC, fixed CBI Director tenure, “Single Directive” struck down | CVC Act 2003, but prior sanction re-enacted as Section 6A DSPE Act; struck down in 2014; reborn as Section 17A, PC Act (2018) |
| Police | Prakash Singh (2006): seven directions, security commissions, fixed DGP tenure | Patchy, formal compliance two decades on |
| Resource allocation | 2G licences cancelled (2012); 214 coal allocations cancelled (2014); CBI called a “caged parrot” (2013) | Policy paralysis; the 2012 Presidential Reference won back executive choice: auction is not constitutionally mandatory |
| Appointments | NJAC struck down (2015); collegium primacy retained | Memorandum of Procedure unsettled; files delayed, a veto by the clock; the collegium called “alien” to the Constitution (2022) |
| Federal offices and agencies | ED Director’s extensions held illegal (Jaya Thakur, 2023); “ED is crossing all limits” (May 2025); timelines and deemed assent for Governors (April 2025) | Ordinances and amendments preserving extensions; the “nuclear missile” jibe at Article 142; an Article 143 reference, answered in November 2025 by a Constitution Bench that disowned deemed assent |
Three patterns follow.
- Surrogate administration. Through continuing mandamus the Court acts as an executive by other means, fixing tenures, deadlines and committees. Accountability improves, but responsibility blurs: when the order fails, nobody answers at the polls.
- A dialogue by evasion. The executive seldom defies the Court openly; it re-enacts, delays or complies on paper. Institutional friction becomes chronic rather than explosive.
- Oscillation, not steady growth. The Court was most assertive against weak coalitions (1989–2014). After 2014 a stronger executive met a Court that Gautam Bhatia calls an “executive court”, deferential on liberty and sealed covers, yet assertive on federal questions and electoral bonds (2024).
Pratap Bhanu Mehta adds the paradox: the Court polices every institution’s accountability while resisting its own.
Conclusion
Judicial activism has turned the executive–judiciary relationship from separation into supervised co-governance. It has helped most where the Court enforced the executive’s own law, and harmed most where it tried to replace executive choice. The 2025 assent episode shows the system can correct itself. A stable balance needs interim, enforceable orders from the Court and prompt compliance from the executive.