Comment: Judicial Activism. (2001, 2006, 20 Marks)
The phrase judicial activism was coined by Arthur Schlesinger Jr. in a January 1947 Fortune essay that sorted the Roosevelt Court into “activists” such as Hugo Black and William O. Douglas, who saw law as an instrument of social results, and “champions of self-restraint” such as Felix Frankfurter. The term has never settled into a doctrine: Keenan Kmiec (California Law Review, 2004) found it used for at least five things — striking down arguably valid acts, ignoring precedent, judicial legislation, departing from accepted interpretation and result-oriented judging. In India it names a debate: when may unelected judges direct the elected branches?
Activism, restraint, overreach
- Activism — the Court not only declares validity but prescribes guidelines, deadlines and monitoring.
- Restraint — deciding narrowly and deferring to legislative judgment on facts and policy.
- Overreach — activism that occupies a function the Constitution assigns elsewhere, or one the Court cannot competently perform.
The case for activism
- Constitutional mandate. Article 32 makes the remedy itself a fundamental right; Article 141 makes declared law binding; Article 142 authorises “complete justice”.
- Vacuum-filling. Chief Justice J. S. Verma‘s benches framed the Vishaka (1997) guidelines, binding until Parliament legislated (it did, in 2013), and in Vineet Narain (1997) insulated the CBI when the executive would not.
- The voiceless. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer opened the Court to prisoners and bonded labourers; Upendra Baxi called it social action litigation.
- Democratic repair. Candidate disclosure (ADR, 2002) and the striking down of electoral bonds (2024) cleaned channels that legislators, as beneficiaries, would not.
The case against
- The counter-majoritarian difficulty. Alexander Bickel, The Least Dangerous Branch (1962), warned that review thwarts the will of the people’s representatives and must be husbanded.
- Competence and humility. In Aravali Golf Club v. Chander Hass (2007), Justice Markandey Katju wrote that “Judges must know their limits and must not try to run the Government.” The 2016 highway liquor ban, diluted by the Court within months, illustrates policy made without data.
- Legislative erosion. Arun Jaitley told the Rajya Sabha on 11 May 2016: “Step by step, brick by brick, the edifice of India’s legislature is being destroyed.”
- Judicial sovereignty. Pratap Bhanu Mehta, “The Rise of Judicial Sovereignty” (Journal of Democracy, 2007), argued the Court had placed itself above the Constitution it interprets, with the basic structure doctrine and judicial self-appointment as proofs — confirmed for critics when the NJAC fell in 2015.
- Selective activism. A newer critique holds that the Court legislates on cricket and firecrackers while deferring on liberty — the J&K habeas corpus petitions of 2019 languished; Gautam Bhatia calls it an “executive court”.
Weighing the debate
Both sides are partly right, because activism is not one thing. A workable test separates two kinds:
- Enforcing a denied entitlement where no other remedy exists — Hussainara Khatoon, Vishaka, the 2024 demolition safeguards — is legitimate, especially if interim and enforceable.
- Choosing among permissible policies — cricket governance, fuel technology, deadlines the Constitution withholds — is overreach.
The Court has shown it can apply this test to itself: in November 2025 a five-judge bench held that Article 142 cannot supplant express provisions and disowned the “deemed assent” a two-judge bench had granted to Tamil Nadu’s bills.
Conclusion
The debate over judicial activism is really a debate about institutional failure: Indian activism grew where Parliament and the executive defaulted, and it overreaches where it outlasts that default. The answer is neither a passive Court nor a sovereign one, but a Court that enforces rights firmly, chooses policy rarely, and hands back the field once the elected branches act.