Judicial Activism, PIL, and Judicial Overreach in India

The Constitution of India nowhere authorises a court to run a cricket board, prescribe which fuel a city’s buses must burn, or deem a bill assented to that a Governor refused to sign. The Supreme Court has done all three. Whether that record rescued a constitutional order abandoned by its elected custodians or quietly captured self-government for unelected judges is the most contested question in Indian constitutional politics — and it is answerable only by setting the Court’s envisaged role against its actual working.

What judicial activism means

Activism is not a technical term of constitutional law. It is a description of institutional behaviour — of a court that does more than the minimum its jurisdiction requires, and does it in a direction that changes what other organs of state must do.

• A working definition.Judicial activism is the practice of a court expanding its own remedial and interpretive reach so as to direct the substantive content of public policy, rather than confining itself to declaring the validity of a law or an executive action.
  • The key word is direct. A court that strikes down a law leaves the legislature free to legislate again; a court that lays down what the law shall be until Parliament acts has occupied the legislative seat.
  • Activism is a spectrum, not a category — the same technique reads as principled enforcement in one case and as usurpation in another, which is why the debate never closes.
• Activism presupposes judicial review but is not identical to it. Judicial review is the power to test legislation and executive action against the Constitution; it is the basis for activism, not activism itself.
  • A court that reviews and upholds is doing its constitutional job. A court that declines to review at all is passive, not restrained — restraint is a reasoned choice, passivity is abdication.
  • Review becomes activism when the Court not only pronounces on validity but prescribes the substitute — the guideline, the deadline, the committee, the monitoring schedule.
• Judicial creativity describes interpretive method rather than remedial reach.
  • Reading Article 21 to contain a right to livelihood, food, education, health, shelter and privacy is creativity; reading an unwritten basic structure into an amending power the text makes unlimited is creativity of an extreme kind.
  • Creativity can coexist with restraint: a court may read a right expansively and still leave the remedy to the political branches.
• Judicial restraint is the disposition to decide the narrowest question that disposes of the case, to defer to legislative fact-finding, and to avoid constitutional pronouncement where a statutory route exists.
  • Restraint is a democratic argument, not a timid one: elected bodies possess information, budget authority and accountability the court lacks.
• Judicial overreach is activism that has crossed into territory the Constitution assigns elsewhere, or that the court cannot competently occupy.
  • The honest difficulty, and it is not a small one: what looks desirable is called activism and what looks undesirable is called overreach, so the distinction often smuggles in the observer’s politics.
  • Judicial adventurism is a stronger cousin — the court entering wholly uncharted territory with no textual anchor at all — and judicial high-handedness describes the coercive edge of the same tendency, most visibly in the contempt power under Article 129.

The test: entitlement or policy choice

The defensible line is not between bold judgments and cautious ones — it is between a court enforcing a constitutional entitlement and a court choosing among permissible policies.

• The question to ask of any intervention: is the Court enforcing a constitutional entitlement that is being denied and for which no other remedy exists, or is it selecting one among several policies all of which the Constitution permits?
  • Vishaka passes the test — sexual harassment at work violated Articles 14, 15, 19(1)(g) and 21, no statute existed, and the guidelines were expressly interim until Parliament acted.
  • Hussainara Khatoon passes — undertrials imprisoned longer than the maximum sentence for their offence is not a policy question at all; it is a naked Article 21 violation.
  • A direction on which fuel a city’s buses must use does not obviously pass. Clean air is a constitutional entitlement; compressed natural gas rather than low-sulphur diesel is a policy choice with costs, alternatives and losers that a court has no machinery to weigh.
  • Prescribing a timeline for the President of India does not pass, because the Constitution declines to prescribe one and that silence is itself a constitutional choice.
• A second, remedial test rides alongside it: can the court’s order be enforced by the court, or does it depend entirely on the goodwill of the organ it is directing?
  • Orders of the second kind, when disobeyed, convert judicial authority into judicial spectacle — and unimplemented directions damage the Court more than restraint ever would.

Distinguishing the family of terms

Term	What the court is doing	Indian illustration
Judicial review	Testing a law or action against the Constitution	Shankari Prasad, Minerva Mills
Judicial restraint	Deciding narrowly, deferring on contested facts and policy	Refusal to review economic-policy choices in BALCO disinvestment
Judicial creativity	Reading new content into existing text	Article 21 expanded in Maneka Gandhi; basic structure in Kesavananda Bharati
Judicial activism	Prescribing what must be done, and supervising it	Vishaka guidelines; continuing mandamus in M.C. Mehta
Judicial overreach	Occupying a function constitutionally assigned elsewhere	BCCI administration; timelines for the Governor and President
Judicial abdication	Declining to exercise review that the case demands	ADM Jabalpur; sealed-cover disposals

Conditions that generate activism

• A written constitution with entrenched, judicially enforceable rights is the precondition; without it, activism has no textual purchase.
• Federalism supplies a second stream of disputes in which the court is the only available umpire.
• Failure of the political branches — the decisive variable. A court expands into space the executive and legislature vacate.
• Judicial preference. The composition of the bench matters, which is precisely why the same Court has produced ADM Jabalpur and Maneka Gandhi within two years of each other.
• Popular demand. Activism sustained over decades needs a constituency; middle-class disillusionment with politics has supplied one in India.
• A global trend toward what has been called the judicialisation of politics, visible from Colombia to Israel to South Africa.

Is activism desirable? The two schools

• The traditional school, associated with Lord Jowitt, holds that the judge’s office is to declare the law, not to make it.
  • Judges lack the expertise and the machinery to manage an administrative leviathan; a decision taken without data and without responsibility for consequences is not improved by being taken in a courtroom.
  • The democratic objection attaches to the same point: an appointed judge who legislates is exercising power he was not given and cannot be deprived of.
• The contemporary school, associated with Justice Stanley Reed in the United States and with V.R. Krishna Iyer and P.N. Bhagwati in India, treats the traditional position as a fiction.
  • Judges have always made law interstitially; the pretence that they only find it conceals the choice rather than removing it. Whenever law is declared, law is made.
  • Their sharper claim is temperamental: a judge who refuses to act where action is needed is not being restrained but is choosing comfort and immunity from criticism over duty.
• The Indian resolution has been pragmatic rather than principled — the country has largely accepted activism as a blessing in disguise while never settling the theory that would tell it when to stop.

The American origins of the debate

The vocabulary is American, and so is the theoretical quarrel. Importing it wholesale into India is a mistake, but ignoring it leaves the Indian debate without its analytical equipment.

• Arthur Schlesinger Jr. coined the phrase judicial activism in a magazine profile of the Roosevelt Court, sorting the justices into judicial activists who saw law as an instrument of social result and champions of self-restraint who saw the Court’s chief duty as deference to the legislature.
  • The label was descriptive before it was pejorative; it acquired its accusatory edge only later, and in India it acquired an approving edge instead.
• Marbury v. Madison established judicial review by asserting it, not by finding it in the text — the founding act of American constitutional adjudication was itself an act of judicial creativity.
• The Lochner era is the standing warning. For roughly four decades the Court struck down maximum-hours and minimum-wage laws in the name of a freedom of contract read into due process, blocking social legislation until the constitutional crisis of the New Deal forced retreat.
  • Lochner’s lesson is that activism has no politics of its own. The same technique that produced Brown produced Lochner.
• The Warren Court supplied the modern template: Brown v. Board of Education on desegregation, Gideon on the right to counsel, Miranda on custodial interrogation, Baker v. Carr on legislative apportionment.
  • This is the court Indian judges of the post-Emergency generation consciously admired, and its example is written into the rhetoric of Indian public interest litigation.

The theoretical positions

• Alexander Bickel named the problem the whole debate turns on — the counter-majoritarian difficulty.
  • When an unelected court invalidates the act of an elected legislature, it “thwarts the will of representatives of the actual people of the here and now”, and no theory of democracy comfortably accommodates that.
  • Bickel’s answer was not surrender but the passive virtues — doctrines of standing, ripeness and justiciability by which a court legitimately declines to decide, husbanding its authority for the cases that matter.
• John Hart Ely offered representation-reinforcement as the way out.
  • Courts should not impose substantive values; they should intervene only to clear the channels of political change and to protect discrete and insular minorities whom the majoritarian process systematically fails.
  • On this theory an activist decision is legitimate when it repairs democracy, and illegitimate when it substitutes for democracy.
• Ronald Dworkin rejected the framing entirely. Rights are trumps over collective goals, and adjudication is a matter of principle rather than policy.
  • His ideal judge, Hercules, decides hard cases by constructing the theory of political morality that best fits and justifies the legal materials as a whole — so there is always a right answer, and finding it is not usurpation.
  • Dworkin’s distinction between arguments of principle (which belong to courts) and arguments of policy (which belong to legislatures) is the sharpest philosophical version of the test this note has proposed.
• Robert Bork answered with originalism: a judge who departs from the original understanding of the text is exercising will rather than judgment, and there is no neutral principle by which such a judge can be constrained.
• Jeremy Waldron made the most uncomfortable argument, and the one Indian discussion most often ignores — the core of the case against judicial review.
  • In a society with functioning democratic institutions and a broadly rights-respecting culture, disagreement about rights is reasonable and persistent, and there is no reason to prefer nine judges resolving it by majority vote to several hundred legislators resolving it by majority vote.
  • Judicial review, on this view, is not the protection of rights from politics; it is a different politics conducted by people who cannot be voted out.

Position	Core claim	Test of legitimate judicial power
Bickel	Review is counter-majoritarian and needs husbanding	The passive virtues — decline to decide where possible
Ely	Courts should reinforce representation	Is the political process blocked or biased?
Dworkin	Rights are trumps; adjudication is principle	Argument of principle, not policy
Bork	Non-originalist review is judicial will	Fidelity to original understanding
Waldron	Disagreement about rights is reasonable	There is no superior claim for courts

Why judicial activism arose in India

The Indian Court did not arrive at activism through theory. It arrived through a sequence of political failures and one catastrophic institutional humiliation.

The constitutional invitation

• Article 32 makes the remedy itself a fundamental right. A court whose jurisdiction to enforce rights is a right cannot decline a remedy on the ground that granting it would be inconvenient.
  • Ambedkar called it the article without which the Constitution would be a nullity — the heart and soul of the Constitution.
  • Article 226 gives the High Courts a still wider writ jurisdiction, extending to legal rights and not only fundamental rights.
• Article 37 read with Part IV creates a duty without a remedy — the Directive Principles are “fundamental in the governance of the country” and it “shall be the duty of the State to apply these principles in making laws”, yet they are expressly non-justiciable.
  • The Court is itself “the State” within Article 36 for the purposes of Part IV. If the political organs will not apply the principles, the argument runs, the judicial organ is not exempt from the duty.
  • The route around non-justiciability was to read Part IV content into the Part III right to life — and thus a non-enforceable directive became an enforceable entitlement without a single amendment.

“It was the intention of the Assembly that in future both the legislature and the executive should not merely pay lip-service to these principles… but that they should be made the basis of all executive and legislative action.” — B.R. Ambedkar

• Article 141 makes the law declared by the Supreme Court binding on all courts in India — which converts a set of guidelines into law of the land where Parliament has left a vacuum.
• Article 142 empowers the Court to pass any order necessary for doing complete justice in a cause before it — an open-ended remedial power with no equivalent in most constitutional systems.
• Article 136 gives a discretionary appellate jurisdiction over any court or tribunal in the country, the widest such power anywhere, and the origin of both the Court’s reach and its crushing docket.

Political failure and abdication

• Legislative decline removed the primary rights-protecting organ from the field: falling sitting days, the guillotine on financial business, sharply reduced reference of bills to committees, ordinance-making used to legislate around Parliament, and disruption consuming scheduled time.
  • Krishna Kumar Singh held re-promulgation of ordinances to be a fraud on the Constitution — a judicial repair of a legislative pathology.
• Executive abdication in delivery: statutes enacted and not implemented, funds sanctioned and not spent, schemes announced and not audited. The Court’s most defensible interventions have been against non-implementation of the state’s own law, not against the absence of law.
• Criminalisation of politics hollowed out the representative claim of the elected organs and correspondingly raised the moral authority of the unelected one.
  • Judicial insistence on disclosure of criminal antecedents and assets by candidates, and the disqualification of convicted legislators in Lily Thomas, were possible precisely because Parliament would not legislate against its own members.
• Weak coalition governments between 1989 and 2014 produced the high-water mark of judicial power. A government dependent on a dozen partners cannot mount a constitutional confrontation with the Court, and does not want to.
  • S.R. Bommai brought a Presidential proclamation under Article 356 within judicial review; Kihoto Hollohan brought the Speaker’s decision under the Tenth Schedule within it; Vineet Narain restructured the insulation of the investigating agencies.
  • The Court also entered policy design in this period, directing the government to pursue the interlinking of rivers and holding in the 2G matter that auction was the appropriate route for allocating natural resources — a holding the Court itself qualified in a later advisory opinion, which is instructive about the durability of judicially chosen policy.
• The return of a single-party majority after 2014 shifted the balance back toward the executive — and the character of the activism debate changed with it, as the later sections show.

The Emergency and the legitimacy deficit

The Court’s activism has a precise psychological origin, and it is shame. Between 1975 and 1977 the Supreme Court, faced with the wholesale detention of the political opposition, held in ADM Jabalpur v. Shivkant Shukla that during a proclaimed emergency no person had any locus to move any court for habeas corpus, because Article 21 was the sole repository of the right to life and liberty and its enforcement stood suspended.

• Four judges concurred; Justice H.R. Khanna dissented alone, and lost the Chief Justiceship for it. The judgment is the standing reference point for judicial capitulation in India.
• The rebuilding was deliberate. The judges who had acquiesced were among those who most energetically championed the Court’s new social-rights orientation after 1977.
• Upendra Baxi gave the most candid account of the motive.

“Judicial populism was partly an aspect of post-emergency catharsis… Partly, it was an attempt to refurbish the image of the court tarnished by a few emergency decisions and also an attempt to seek new, historical bases of legitimation of judicial power.” — Upendra Baxi

• ADM Jabalpur was formally interred in the nine-judge privacy judgment in K.S. Puttaswamy, which held the decision to be seriously flawed and expressly overruled — a rare instance of a court repudiating its own worst moment by name.

The envisaged role and the record

The syllabus question is the gap between what the Court was designed to do and what it actually does. The design is recoverable from the Constituent Assembly debates and the text; the record has to be assessed role by role.

• The five envisaged roles were protector of the Constitution, guardian of fundamental rights and the rule of law, federal umpire, active participant in India’s social revolution, and apex court for appeals and for the administration of the judiciary itself.
• Bhikhu Parekh describes the resulting arrangement as judicial co-governance — a system in which the courts are not a check on government but a partner in it.
• Pratap Bhanu Mehta puts it more severely as judicial sovereignty — supremacy of the judiciary over and above the supremacy of the Constitution, since the Constitution means what the judges say it means.
  • The two proofs he offers are the basic structure doctrine and the collegium: on both, the Court went beyond the constitutional text to fix the limits of the Constitution and the composition of the Court.

Envisaged role	Actual record
Protector of the Constitution	Passive until 1967, then decisive — basic structure blocked the emasculation of the Constitution by amendment
Guardian of fundamental rights	Failed catastrophically in ADM Jabalpur; rebuilt after Maneka Gandhi through PIL and the expansion of Article 21
Federal umpire	Effective — Article 131 original jurisdiction, Article 136 used in the Cauvery dispute, Bommai restrained Article 356
Rule of law and anti-corruption	Mixed — Vineet Narain, the 2G proceedings, candidate disclosure and Lily Thomas against criminalisation
Participant in social revolution	Rights declared expansively; delivery on the ground weak and dependent on the executive
Apex court of appeal	Overwhelmed — record pendency, an unmanageable Article 136 docket, no control over its own list

• The recurring pattern is declaration without delivery. The Sabarimala judgment opening the shrine to women of all ages is the clearest instance: a constitutional entitlement declared by a Constitution Bench and then rendered inert on the ground by the absence of support from the state government and from society, with the review reference still unresolved before a nine-judge bench.
• The reverse pattern also exists — where the Court’s intervention created machinery that survived it, as with the insulation of the investigating agencies and the disclosure regime for candidates.

The phases of the Court’s career

Phase	Posture	Defining cases
1950–1967: formalism	Textual, deferential, property-protective	A.K. Gopalan, Champakam Dorairajan, Shankari Prasad, Sajjan Singh
1967–1973: confrontation	Defending property against redistribution	Golak Nath, Bank Nationalisation, Privy Purses
1973–1975: the turn	Inventing an implied limit on amendment	Kesavananda Bharati
1975–1977: collapse	Capitulation to the executive	ADM Jabalpur
1978–1989: rebirth	Procedural revolution, social rights	Maneka Gandhi, Hussainara Khatoon, Sunil Batra, S.P. Gupta, Bandhua Mukti Morcha, Olga Tellis
1990–2014: governance by court	Policy supervision, monitoring, appointments	Bommai, Vishaka, M.C. Mehta, PUCL, Vineet Narain, 2G
2014– : contested	Assertive on federal questions, deferential on liberty	NJAC, Puttaswamy, Article 370, Electoral Bonds, Governor’s assent

The formalist first phase

• A.K. Gopalan v. State of Madras read the fundamental rights as watertight compartments and confined “procedure established by law” to whatever procedure a valid statute prescribed, expressly rejecting the American due-process standard.
  • The consequence was that a preventive-detention law could not be tested for fairness at all, only for legislative competence.
• State of Madras v. Champakam Dorairajan struck down communal reservation in college admissions and held that Directive Principles must run subsidiary to fundamental rights — a holding reversed within months by the First Amendment.
• Shankari Prasad and Sajjan Singh upheld Parliament’s power to amend fundamental rights under Article 368, treating constitutional amendment as outside the meaning of “law” in Article 13.
• The Court in this phase did, however, supply its own aspiration: it described itself as “a sentinel on the qui vive” in State of Madras v. V.G. Row — a promise it would take three decades to redeem.

Property, amendment and the road to Kesavananda

• Golak Nath v. State of Punjab reversed course by a bare majority, holding that Parliament could not abridge fundamental rights at all, and applying the doctrine of prospective overruling to avoid unsettling past amendments.
  • The timing is not coincidental. It is the first assertive judgment of the Court’s history, and it arrives exactly as the Congress system begins to fracture — judicial confidence tracks the weakness of the ruling party with some precision.
  • Because the rights being defended were property rights, the phase attracted the charge of negative activism — judicial energy deployed against redistribution rather than for the dispossessed.
• Bank Nationalisation struck down the takeover of fourteen banks for inadequate compensation; the Privy Purses case struck down the derecognition of the princes. Both were answered by constitutional amendment.
• Kesavananda Bharati v. State of Kerala resolved the war by inventing a limit nobody had written: Parliament may amend any provision, including fundamental rights, but may not damage or destroy the basic structure of the Constitution.
  • The doctrine passed by seven judges to six in a bench of thirteen — the narrowest possible foundation for the most consequential doctrine in Indian constitutional law.
  • The philosophical basis is a distinction between two sovereignties: the Constituent Assembly exercised popular sovereignty, the constituent power of the people, while Parliament exercises only political sovereignty delegated by the Constitution — so no majority in Parliament, however large, can rewrite what the people constituted.
  • The corollary is a distinction between amending and rewriting: an amendment may not go so far that the original Constitution becomes unrecognisable.
  • It is metaphysical by design: no exhaustive list has ever been given, which its defenders call a safety valve and its critics call a sword hanging over every legislative initiative.
  • The critics’ charge is that the judges made themselves a standing Constituent Assembly — preferring an invisible constitution to a written one, assuming an undefined discretion, and, in the words of the sharper objection, projecting themselves as philosopher kings.
  • Zia Mody’s defence is the most quotable formulation of the second view — that an uncertain democracy was preferable to a certain authoritarianism, and that without the doctrine India would have followed the constitutional trajectory of its post-colonial neighbours.
• Indira Nehru Gandhi v. Raj Narain and Minerva Mills entrenched it — the latter holding that the harmony and balance between Parts III and IV is itself basic structure, and striking down the clauses of the 42nd Amendment that had made amendments unreviewable.

The post-1978 rebirth

• Maneka Gandhi v. Union of India is the hinge. The Court held that “procedure established by law” in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive, and that Articles 14, 19 and 21 form an interlocking golden triangle.
  • Gopalan’s compartmentalisation was destroyed, and due process entered Indian law through the back door that the Constituent Assembly had deliberately closed.
• Hussainara Khatoon v. State of Bihar — the first great public interest case — exposed thousands of undertrials in Bihar jailed for periods exceeding the maximum sentence, and read speedy trial and free legal aid into Article 21.
• Sunil Batra v. Delhi Administration converted a prisoner’s letter into a writ petition, held that a prisoner does not shed his fundamental rights at the prison gate, and struck at solitary confinement and bar fetters.
• S.P. Gupta v. Union of India — the First Judges Case — is the formal doctrinal birth of relaxed standing: any member of the public acting bona fide may move the Court on behalf of persons unable to approach it themselves by reason of poverty, disability or a socially or economically disadvantaged position.

Public Interest Litigation

Public interest litigation is the institutional machinery through which Indian judicial activism actually operates. Without it the expansion of Article 21 would have remained a set of pronouncements in appeals brought by people wealthy enough to litigate. With it, the Court acquired a stream of cases about destitution, detention and disease that no ordinary appellate docket would ever have produced.

The invention

• P.N. Bhagwati and V.R. Krishna Iyer built PIL as a deliberate institutional project, not as an accident of case law. Its components were procedural, and each dismantled a common-law rule.
  • Relaxed locus standi — the requirement that a petitioner show personal injury was abandoned in favour of representative standing and, in practice, citizen standing.
  • Epistolary jurisdiction — a postcard, a letter, a newspaper report or a telegram could be registered as a writ petition, dispensing with the pleadings, court fee and counsel that priced the poor out of the system.
  • Suo motu cognisance — the Court initiating proceedings on its own motion, so that even a petitioner became optional.
  • Court-appointed commissioners — district judges, advocates, journalists and academics deputed to visit sites, interview inmates and report facts back to the Court, because the Court had no investigative machinery of its own.
  • Continuing mandamus — the case is never finally disposed of; the Court retains it and issues directions over years or decades.
• The transformation is procedural first and substantive second, which is the point most often missed: PIL changed how the Court works before it changed what the Court decides.

From adversarial to inquisitorial and polycentric

• The adversarial model assumes two identified parties, a defined dispute, a closed record, and a remedy running between them. PIL retains none of these features reliably.
  • The Court becomes inquisitorial — it defines the issue, gathers the facts through its own agents, and shapes the relief.
  • The petitioner becomes redundant once the case is admitted; the amicus curiae appointed by the Court frequently becomes the real driver of the litigation.
• Lon Fuller’s objection to polycentric adjudication is the precise theoretical difficulty. A polycentric problem is one in which every element is connected to every other, like a spider’s web — pull one strand and the whole tension pattern changes.
  • Resource allocation, urban planning, environmental regulation and industrial policy are polycentric. Adjudication, which resolves a bipolar dispute on a closed record, is structurally unsuited to them.
• Abram Chayes described a parallel American development as public law litigation — sprawling, party-indeterminate, prospective, remedially complex school-desegregation and prison-conditions decrees.
  • The Indian variant goes considerably further, and the differences matter more than the similarity.

Dimension	American public law litigation (Chayes)	Indian PIL
Standing	Liberalised but still injury-based	Citizen standing — no injury required
Initiation	Formal complaint, represented plaintiff	Letter, postcard, news report, suo motu
Fact-finding	Adversarial, expert evidence, discovery	Court-appointed commissioners, affidavits, no cross-examination
Rights base	Statute and constitutional text	Article 21 read with non-justiciable Part IV
Remedy	Structural injunction, special master	Continuing mandamus, committees, Article 142
Duration	Long but terminating	Some cases running for over three decades

What PIL produced

Case	Field	Constitutional result
Hussainara Khatoon	Undertrial prisoners	Speedy trial and free legal aid under Article 21
Sunil Batra	Prison conditions	Prisoners retain fundamental rights; solitary confinement and fetters curbed
Bandhua Mukti Morcha	Bonded labour	Enforcement of the bonded-labour law; commissioner-led fact-finding
Olga Tellis	Pavement dwellers	Right to livelihood within Article 21; notice before eviction
M.C. Mehta (multiple)	Environment	Absolute liability, polluter pays, precautionary principle; CNG for Delhi transport
Vishaka	Sexual harassment	Binding guidelines as law under Article 141 until the 2013 Act
Unni Krishnan	Education	Right to education to age fourteen; later Article 21A by the 86th Amendment
PUCL (right to food)	Nutrition	Scheme benefits converted into legal entitlements; cooked midday meals ordered
Paschim Banga Khet Mazdoor Samity	Emergency care	Right to health: denial of emergency treatment violates Article 21
K.S. Puttaswamy	Privacy	Right to privacy as a fundamental right; ADM Jabalpur overruled

• The expansion of Article 21 is the common thread. From a narrow guarantee against unlawful detention it now carries livelihood, shelter, health, education, food, clean environment, speedy trial, legal aid, privacy, dignity, reputation, and — in a 2026 suo motu highway-safety matter — safe passage on roads.
• The right to education sequence is the best test case for causation, and it cuts against the Court’s admirers. Unni Krishnan declared the right; the 86th Amendment enacting Article 21A followed a full decade later, and the evidence suggests it was driven by an electoral commitment rather than by the judgment, while a Right to Education Bill was shelved in the interim on budgetary grounds.

The techniques of judicial policy-making

• Continuing mandamus — the Court does not decide and depart; it keeps the matter alive and governs by instalment.
  • The M.C. Mehta line has run for decades across Ganga pollution, the Taj trapezium, vehicular emissions and construction dust.
  • Vineet Narain used it to reconstruct the CBI’s autonomy, prescribing tenure and appointment machinery for the Director.
  • The technique’s strength is persistence; its weakness is that it makes the Court a permanent administrative supervisor without an administration.
• Article 142 — orders for complete justice, unmoored from any statute.
  • It has been used to dissolve marriages on irretrievable breakdown where no statute permits it, to transfer the disputed site in Ayodhya, to lay down demolition safeguards, and, in the Tamil Nadu case, to deem ten bills assented to.
• Guidelines with the force of law under Article 141 — Vishaka is the paradigm, and the Court was explicit that they would operate only until suitable legislation came, which it did in 2013.
  • The technique is defensible when it is interim and vacuum-filling, indefensible when it becomes permanent parallel legislation.
• Court-appointed committees and monitoring — the Lodha Committee on cricket administration, the Central Empowered Committee in forest matters, the Bhure Lal authority on Delhi’s air, court-appointed monitors in the right-to-food case.
• Suo motu cognisance — the Court initiating action on a news report, most visibly during the second wave of the pandemic and in the 2026 highway-safety matter.
• The creative reading of Article 21 with Part IV — the master technique that makes all the others possible, converting non-justiciable duties into enforceable rights.

The critique of Public Interest Litigation

PIL solved the problem of access to the Court and created the problem of what the Court does once everyone can reach it.

From social action litigation to credit-claiming litigation

• Upendra Baxi — PIL’s most sympathetic chronicler — insisted the original phenomenon should be called social action litigation (SAL), not public interest litigation.
  • SAL was the litigation of the rightless: bonded labourers, undertrials, pavement dwellers, inmates of protective homes, children in quarries. Its petitioners were activists and its subject was destitution.
  • The imported American label PIL obscured this, and the practice drifted to match the label.
  • Baxi’s memorable formulation is that the Supreme Court of India was becoming the Supreme Court for Indians — a court whose constituency was the suffering rather than the litigant.
  • He also credited the Court with performing chemotherapy on the carcinogenic politics of India, and with generating a jurisprudence of the demos — demosprudence — rather than of doctrine.
• The drift is documented. As PIL matured it was captured by causes with organised constituencies: environmental amenity, urban aesthetics, municipal encroachment, judicial appointments, sports administration, transparency in elite institutions.
  • The characteristic modern petitioner is a professional public-interest litigant, an NGO with legal capacity, or a lawyer, not a bonded labourer.
  • Credit-claiming litigation — filed for visibility, decided for headlines — is now a recognised sub-genre, and the Prime Minister’s public caution that PILs “cannot become vehicles for settling political or other scores” and require screening standards has never been answered institutionally.

Bhuwania: the procedure is the problem

• Anuj Bhuwania, in Courting the People, makes the most systematic case against PIL, and it is deliberately not a case about outcomes.
  • His claim is that PIL’s procedural informality is not incidental but constitutive — and that a court which has abolished pleadings, evidence, cross-examination and identified parties has abolished the things that make adjudication trustworthy.
  • The petitioner is redundant after admission, so nobody owns the case; the amicus becomes the real party; affected stakeholders are frequently never heard at all.
  • Reasoning becomes teleological: the Court fixes on an outcome it considers good and works backwards, which is why PIL judgments so often lack a ratio that can be applied to the next case.
  • He argues PIL cannot be reformed by better screening, because the defects are structural: remove the informality and PIL is simply ordinary litigation.
• The Delhi demolition litigation is his central exhibit. Courts acting on “public interest” petitions ordered the clearance of slum settlements housing hundreds of thousands of people, whose residents were neither parties nor heard.
  • He calls the resulting practice a form of panchayati justice — informal, personalised, unreviewable — conducted by the apex court of a constitutional democracy.

The displacement of the poor

• The trajectory from Olga Tellis to Almitra Patel is the sharpest illustration of PIL’s inversion.
  • Olga Tellis held that pavement dwellers could not simply be swept away, because eviction without alternative destroys the right to livelihood that Article 21 protects.
  • Within fifteen years the Court, hearing a solid-waste petition in Almitra Patel, likened the provision of alternative land to slum dwellers to rewarding a pickpocket — the same jurisdiction, the opposite sensibility.
• Environmental jurisprudence has a distributive shadow. Closure and relocation orders in Delhi displaced large numbers of industrial workers; the reasoning treated their livelihoods as an externality of clean air.
• Development litigation shows the same tilt. The Court declined to halt the Sardar Sarovar project on rehabilitation grounds, and later readings of the Vedanta and forest-clearance disputes were widely read as accommodating extractive investment against tribal and environmental claims.
• The verdict of the sharper critics is that PIL began as the litigation of the poor and became litigation about the poor, conducted by others, sometimes against them.

Evidentiary and institutional weakness

• No machinery to find facts. Commissioners’ reports are not evidence in any ordinary sense — untested, uncross-examined, and often written by people with no relevant training.
• No budget constraint. A court that orders midday meals, hospital beds, teacher appointments or road furniture does not have to find the money, forgo an alternative, or face the electorate that pays.
• No policy expertise. Judgments on drug pricing, fuel technology, admission quotas and spectrum allocation require trade-off analysis the bench has neither the training nor the time to perform.
• No control of the agenda. The Court can only act on the petitions that arrive, so its social-justice record is as arbitrary as the distribution of litigants — a point that undercuts any claim that PIL is a programme.
• No enforcement capacity. The most reliable empirical work on the Court’s socio-economic record — the study of health and education litigation by Shylashri Shankar and Pratap Bhanu Mehta — found that judges characteristically adopted what Mark Tushnet calls weak remedies.
  • Instead of penalising defaulting governments, courts issued declarations, constituted committees, sought compliance reports and left implementation to be monitored by the petitioners themselves.
  • In education, most litigation concerned universities rather than primary schools, and teachers’ pay and tenure rather than teacher absence or learning outcomes; in health, medical reimbursement for formal-sector employees was heavily litigated while access for the poor barely featured.
  • Litigation clustered in richer states and urban areas; the poorest states, where the need was greatest, generated the fewest cases.
  • The authors’ conclusion is deflationary: the Court’s influence on health and education policy was indirect and minimal, and the judicial arena may simply be the wrong arena for delivering social goods.

“Coupling strong rights with weak remedies, particularly when those remedies are rarely deployed because of resource constraints on plaintiffs, may be a formula for producing cynicism about the constitution.” — Mark Tushnet

• Charles Epp’s finding fits the same pattern: rights revolutions depend on support structures — legal aid networks, rights advocacy organisations, funding — and outside the environmental field India’s are thin, which limits how much a willing court can actually change.

Judicial overreach: the standard instances

The examples that follow are cited across the political spectrum, which is itself significant — they are not the complaints of one government. What unites them is that in each the Court chose a policy rather than enforced an entitlement, and in several it later had to modify or abandon its own choice.

• The NJAC judgment is the most-cited example. The 99th Constitutional Amendment and the National Judicial Appointments Commission Act, passed unanimously by both Houses and ratified by a large number of state legislatures, were struck down four to one as violating judicial independence and therefore the basic structure.
  • The Court thereby preserved the collegium, a mechanism nowhere mentioned in the Constitution and created by the Court’s own judgments in the Second and Third Judges Cases.
  • The structural objection is not about outcome but about posture: the Court decided a case about its own appointment power, and decided it in its own favour, with no other forum available to review it.
  • The collegium’s own record supplies the second objection — opacity, no stated criteria, no secretariat, and persistent criticism from jurists including Fali Nariman, who appeared for the petitioners and later expressed unease at what the judgment left behind.
• BCCI and the Lodha Committee — the Court restructured the governance of a private society controlling Indian cricket: age and tenure caps, a cooling-off period, one-state-one-vote, and a court-appointed committee of administrators to run the body until compliance.
  • Whatever the merits, no constitutional entitlement was being enforced. This is the clearest case of a court choosing among permissible policies for an institution it had no mandate to govern.
• The national anthem order required cinemas to play the anthem before every feature with the audience standing and the doors closed. The order was made in a writ petition, on no statutory basis, and was modified two years later to make it non-mandatory after the Union itself asked for reconsideration.
  • The recall is instructive: it demonstrates that the Court can be pushed off a position it never had the competence to take, and that the intervening cost — prosecutions and assaults in cinema halls — was borne by others.
• The highway liquor ban prohibited liquor vends within 500 metres of national and state highways.
  • Within months the Court modified its own order — the distance was cut to 220 metres for local bodies with populations under twenty thousand, Meghalaya and Sikkim were exempted outright, and licence deadlines were extended.
  • A subsequent clarification excluded highway stretches falling within municipal limits, which removed much of the ban’s practical effect. The sequence is a compressed demonstration of what happens when a court legislates without the data a legislature would have collected.
• The Delhi vehicle and firecracker orders show the same pattern over a longer period — mandated conversion of public transport to CNG, bans on the registration of older diesel vehicles, an environment compensation charge on trucks, and a running series of firecracker orders.
  • As recently as October 2025 the Court, having refused to relax a complete ban on firecrackers in the National Capital Region, permitted the sale of green crackers for a three-day window around Diwali — a decision indistinguishable in kind from a licensing decision by a pollution board.
• Tribunals have produced a decade-long constitutional trench war. The Court has repeatedly struck down the executive’s rules on the qualification, tenure and selection of tribunal members, and Parliament has repeatedly re-enacted them.
  • In November 2025 the Court struck down provisions of the Tribunals Reforms Act, 2021 for violating separation of powers and judicial independence, expressly holding that provisions previously struck down should not have been re-enacted, and restoring tenure to 62 and 65 for members and presiding officers of specified tribunals.
• “Governance by court” is the aggregate phenomenon: a continuous, docket-driven supervision of administration in which the Court sets deadlines, constitutes authorities, demands compliance affidavits and holds officials personally liable.

The sharpest current controversy: Governor’s assent

This is where the overreach debate now lives, and the sequence is unusually clean.

• State of Tamil Nadu v. Governor of Tamil Nadu was decided in April 2025 by a two-judge bench of Justices J.B. Pardiwala and R. Mahadevan, on ten bills the Governor had withheld, some for years.
  • The Court held that Article 200 gives the Governor three mutually exclusive options — assent, withhold assent and return the bill with a message, or reserve it for the President — and that there is no pocket veto.
  • Once a bill is re-passed after reconsideration, the option to reserve it for the President is exhausted.
  • It prescribed timelines: ordinarily one month to act on ministerial advice, three months where the Governor acts against that advice or reserves the bill, one month to assent to a re-passed bill, and three months for the President under Article 201, with reasons to be recorded for any delay.
  • It then invoked Article 142 and deemed the ten bills to have received assent.
• The reaction was immediate and constitutional in form. Vice-President Jagdeep Dhankhar attacked the judgment publicly, and the phrase he used has entered the debate permanently.

“Article 142 has become a nuclear missile against democratic forces, available to the judiciary 24 x 7.” — Jagdeep Dhankhar

• In May 2025 the President referred fourteen questions to the Supreme Court under Article 143, asking in substance how a court could prescribe timelines the Constitution does not, and how Article 142 could be used to substitute the Court’s power for that of the President and Governors.
• The Court’s advisory opinion, delivered on 20 November 2025, is a substantial retreat, and it was unanimous.
  • A five-judge bench led by Chief Justice B.R. Gavai, with Justices Surya Kant, Vikram Nath, P.S. Narasimha and A.S. Chandurkar, held that courts cannot impose timelines on the Governor or the President; the words “as soon as possible” in Article 200 convey urgency but do not permit a one-size-fits-all deadline.
  • It held that there can be no “deemed assent”, and that Article 142 cannot supplant express constitutional provisions — using it to deem assent was described as antithetical to the spirit of the Constitution.
  • It characterised the Tamil Nadu bench’s findings on Article 200 as erroneous and as having created a state of doubt and confusion.
  • It preserved a narrow channel of review for prolonged, unexplained and indefinite inaction that frustrates the legislative process — so the constitutional wrong survives even though the judicial remedy was withdrawn.
  • Two of the fourteen questions were left unanswered.
• What the episode establishes matters more than who won. It shows that the constitutional system retains a corrective mechanism for judicial overreach short of amendment — Article 143 — and that the Court is capable of using it to discipline itself.
  • It also shows the cost: a state legislature’s bills, some pending for years, remain governed by a rule that names the wrong as unconstitutional while leaving the remedy undefined.

The counter-critique: is the real problem under-reach?

The overreach charge is the one politicians make. A large body of recent constitutional scholarship makes the opposite charge, and the two are not mutually exclusive — a court can legislate on cricket and abdicate on liberty at the same time.

• Gautam Bhatia’s “executive court” thesis is the most developed version.
  • His claim is that the Court has become indistinguishable from the executive — speaking its language, adopting its priorities, and treating governmental assertion as fact.
  • Sealed covers replaced open justice: material is handed to the bench, withheld from the other party, and relied on in the judgment, which destroys the adversarial premise entirely.
  • Habeas corpus in Jammu and Kashmir after August 2019 was met with adjournment rather than production — a court that had once treated a postcard as a writ petition became unable to process detention petitions with dispatch.
  • The National Register of Citizens exercise was run by the Court — deadlines, admissible documents, procedures — leaving those adversely affected with no forum to appeal to, since the supervising authority was the appellate authority.
  • Judicial evasion is the characteristic technique: not deciding against the citizen, but not deciding at all, so that the executive’s position prevails by the passage of time.
• The electoral bonds sequence is the cleanest evidence for both halves of the critique.
  • The scheme was challenged from 2017; the Court declined to stay it, allowed successive election cycles to be financed under it, and heard the matter finally only years later.
  • When it did decide, on 15 February 2024, a five-judge bench led by Chief Justice D.Y. Chandrachud struck the scheme down unanimously as violating the voter’s right to information under Article 19(1)(a), along with the enabling amendments to the Companies Act, the Income Tax Act and the Representation of the People Act, and ordered disclosure of the bond data.
  • The judgment is a vindication of judicial review and an indictment of judicial delay in the same document. The reasoning was strong; the timing meant the scheme had already done its work.
• The pattern of individual disposals is what gives the thesis its evidentiary base, and the cases are cited together because the contrast between them is the argument.
  • Romila Thapar v. Union of India — the Court declined an independent investigation into the Bhima Koregaon arrests, treating the choice of investigating agency as the executive’s to make.
  • The petition for an independent inquiry into the death of Justice B.H. Loya was rejected, and the petitioners were criticised for filing it.
  • Puttaswamy (Aadhaar) upheld the passage of the Aadhaar Act as a money bill, with Justice Chandrachud dissenting on precisely that point; Rojer Mathew later referred the correctness of that reasoning to a larger bench, where it remains.
  • Siddique Kappan — a journalist detained en route to report a caste atrocity — was told by the Court to approach the High Court under Article 226, weeks after the same Court had granted interim bail with dispatch to a television anchor in Arnab Goswami. The asymmetry, more than either decision alone, is the criticism.
  • The farm laws were stayed without a substantive hearing on their content and referred to a four-member committee whose members had publicly supported the laws — an intervention criticised as the Court acting as negotiator rather than adjudicator.
  • Shaheen Bagh produced the holding that dissent must occupy designated places, on a factual premise about obstruction that was never established on evidence.
  • The Central Vista challenge was transferred to the Supreme Court from the Delhi High Court without the petitioners asking for it.
• The verdict of practitioners is blunt. Senior counsel have argued that the relationship between the executive and the judiciary should be cordial but formal, and that cosiness is fatal to credibility; legal commentators have described a Court that appears tentative, fragmented and fearful of displeasing the executive.
• The reasoning-and-integrity test. The authority of the Supreme Court rests on only two things — the cogency of its reasoning and the integrity of its judges — and neither can be restored by asserting authority.
• Article 370 is the other standing exhibit. The Court upheld the abrogation in December 2023 after a four-year delay during which the constitutional status of a state was altered, its statehood removed, and its politicians detained — and it declined to pronounce on the validity of the reorganisation into Union Territories while accepting the Union’s assurance that statehood would be restored.
• The internal evidence is unusual. In 2018 four of the five senior-most judges of the Supreme Court held a public press conference alleging that the allocation of sensitive cases by the Chief Justice as master of the roster was being manipulated, and warned that democracy itself was at risk.
  • Bench assignment as a political variable is now a permanent feature of Indian legal commentary, and it corrodes the claim that outcomes follow from law rather than from personnel.
• The post-retirement problem compounds it. Appointments to governorships, commissions, tribunals and the Rajya Sabha shortly after retirement — the nomination of a former Chief Justice to the Rajya Sabha being the most discussed instance — make judicial independence look purchasable even where no bargain exists.

India may now face both pathologies at once: a court that legislates where it should defer, and defers where it should decide.

The scholarly assessment

Indian scholarship on the Court divides less over the facts than over the counterfactual. Everyone concedes that the Court legislates; the disagreement is about what would have happened had it not, and about whether the celebrated judgments changed anything on the ground.

Pratap Bhanu Mehta

• Mehta is the most influential sceptic, and his critique has four distinct legs that are often collapsed into one.
  • Politicisation. The judiciary is a highly politicised, self-perpetuating institution that reads the political mood and expands its own authority in the name of activism.
  • Judicial sovereignty. Where the orthodox account of a written constitution says the Constitution is supreme, Mehta’s account of India says the judiciary is — the Constitution is what the judges say it is, and the basic structure doctrine and the collegium are the two proofs.
  • The promise of uncertainty. Judgments change within short periods and rest on no overarching set of values, so they read as artefacts of individual judges rather than as law; India has less the rule of law than the rule of judges, and litigants accordingly fight over the bench rather than the merits.
  • The paradox. Very powerful judgments produce very limited change on the ground; the Court polices the accountability of every other institution while resisting accountability itself; and it intervenes in other organs’ work while an enormous backlog accumulates in its own.
• His methodological objection is the sharpest. The Court’s defenders point to a handful of celebrated cases and never produce concrete empirical data on the effects of intervention — and the proclamation of a right does not by itself produce a result.

Judges must “resist the intoxication which comes from the view that judges are the last, best hope of the republic.” — Pratap Bhanu Mehta

Upendra Baxi

• Baxi’s response is that Mehta is unfair to the judges, and his defence is historical rather than doctrinal.
  • The Court took up the causes of the rightless when no other institution would, and the alternative in the 1980s was not a functioning administration but no remedy at all.
  • His SAL/PIL distinction is simultaneously the strongest defence of PIL’s origins and the strongest critique of what it became.
  • He is candid that the movement had a populist motive — the search for a new basis of legitimation after the Emergency — while insisting that a self-interested motive can still produce a public good.

The other principal assessments

Scholar	Central claim	What it adds
Granville Austin	The Constitution is a seamless web of social revolution, national unity and democracy; the Court is custodian of that web	Justifies reading Parts III and IV together, but also warns against the Court alone carrying the revolution
Rajeev Dhavan	The Court’s juristic techniques — not its politics — explain its output; it is an institution under socio-legal strain	Shifts attention from ideology to docket, procedure and capacity
S.P. Sathe	Activism after the Emergency was liberal interpretation plus a reconceived judicial process — access and participation, not only doctrine	Explains why procedure, not doctrine, is the real innovation
Marc Galanter	Access to justice is structurally skewed; repeat players beat one-shotters	Explains why liberalised standing did not equalise outcomes
Nick Robinson	The Court is an appellate court in constitutional clothing — its docket is overwhelmingly special leave petitions, admission rates favour litigants near Delhi, and PIL is a tiny fraction of its work	Deflates the “people’s court” self-image with numbers
Madhav Khosla	Indian constitutionalism worked by codification, centralisation and a pedagogical conception of democracy; institutions were meant to teach self-government	Frames judicial power as one of several tutelary institutions, not the only one
Shylashri Shankar and P.B. Mehta	On health and education the Court used weak remedies and had indirect, minimal policy impact	Supplies the empirical rebuttal to the activism story
Gerald Rosenberg	Courts are a hollow hope — they rarely produce significant social change on their own, because they lack the power of the purse and the sword and depend on other actors to implement	The sharpest empirical answer to the claim that activism drives social change
Ran Hirschl	The global transfer of power to courts is juristocracy, and it happens because threatened political elites use hegemonic preservation to insulate their preferences from majorities	Explains judicial empowerment as a political choice, not a judicial conquest
C. Neal Tate and Torbjörn Vallinder	The judicialisation of politics is a worldwide phenomenon with identifiable preconditions — rights catalogues, judicial review, weak or fragmented governing coalitions and interest-group use of courts	Places Indian activism inside a comparative pattern rather than treating it as a national peculiarity

The hollow-hope objection and the limits of court-led change

• Rosenberg’s argument is the strongest available challenge to the proposition that courts change society, and it is directly relevant wherever a judgment is celebrated without asking what followed it.
  • Courts depend on legislative appropriation, executive implementation and social acceptance, none of which they command; a judgment that has none of the three is a paper victory.
  • The Indian evidence is mixed rather than decisive. The right to food case delivered real institutional change — court-ordered midday meals, commissioners with a monitoring mandate, and eventually the National Food Security Act — precisely because a mobilised campaign, in which Jean Drèze was central, supplied the political energy the Court could not.
  • Against that, Sabarimala, the manual scavenging prohibition and much environmental jurisprudence show what Rosenberg predicts: strong declarations, weak compliance, and a court unable to convert its own ratio into administration.
  • The lesson is not that litigation is futile but that it is an amplifier, not a substitute — effective where an organised constituency and a willing administration exist, and largely symbolic where they do not.
• Hirschl’s hegemonic-preservation thesis supplies the uncomfortable political-economy reading. Judicial empowerment often suits elites who expect to lose elections, since a court insulates their preferences from a majority they can no longer command.
  • Applied to India, it explains why executives that complain loudest about overreach have also referred politically costly questions to the Court rather than legislating on them.
• Nick Robinson’s docket work deserves separate emphasis because it corrects the most common misconception about the Court.
  • The Supreme Court’s enormous caseload consists overwhelmingly of ordinary appeals under Article 136, not constitutional adjudication.
  • Pendency has now reached roughly 93,000 cases — the highest in three decades — with monthly institutions consistently exceeding disposals; across all courts the figure exceeded 5.39 crore at the end of 2025, with the Supreme Court’s own backlog up about eleven per cent in a single year.
  • The Court that supervises the nation’s administration cannot dispose of its own appeals — which is Mehta’s paradox stated arithmetically.

The comparative evidence

• Colombia’s Constitutional Court is the closest analogue and in some ways the more ambitious. Its tutela action is a rapid individual rights remedy, and its unconstitutional state of affairs doctrine allowed it to declare the treatment of millions of internally displaced persons systemically unconstitutional and to supervise a structural remedy for years.
• South Africa took the opposite methodological route with better theoretical hygiene. In Grootboom and Treatment Action Campaign the Constitutional Court enforced socio-economic rights through a reasonableness review of government programmes — asking whether the state’s plan was reasonable, not designing the plan itself.
  • The contrast with India is exact: South Africa has justiciable socio-economic rights and a modest remedy; India has non-justiciable directives and an unlimited remedy.
• Brazil’s Supreme Federal Tribunal shows the pathology of individual socio-economic litigation at scale — hundreds of thousands of “right to health” suits ordering the state to supply particular medicines to particular claimants, distorting health budgets in favour of those who can reach a lawyer.
• Israel’s Supreme Court under Aharon Barak pushed justiciability furthest of all — “everything is justiciable” — and generated the strongest political backlash, culminating in an attempt to curtail the Court’s reasonableness review.
  • The comparative lesson is consistent: courts that acquire policy power without an account of its limits eventually face a political counter-attack on their independence.

Effects on parliamentary democracy

The constitutional architecture

• Separation of powers is basic structure, so neither organ can be abolished or subordinated by amendment — but India’s is a functional rather than a rigid separation, and the boundaries are contested at the margins by design.
• Judicial review is itself basic structure, which means Parliament cannot immunise a law from scrutiny — the holding that killed the relevant clauses of the 42nd Amendment in Minerva Mills and that made the Ninth Schedule reviewable in I.R. Coelho for post-Kesavananda insertions.

The legislature’s responses

• By amendment. The First, Fourth, Seventeenth, Twenty-fourth, Twenty-fifth, Twenty-ninth, Thirty-ninth and Forty-second Amendments were, in whole or in part, answers to judicial decisions — an ongoing constitutional dialogue conducted with a hammer.
• By ratifying legislation. Where the Court has legislated in a vacuum, Parliament has occasionally caught up: the Sexual Harassment of Women at Workplace Act, 2013 replaced the Vishaka guidelines, and the 86th Amendment enacted Article 21A.
  • This is the healthiest pattern in the whole relationship — the Court fills a vacuum, the legislature fills it properly, the Court withdraws.
• By inaction, which is the more common response. Parliament has not legislated on judicial appointments after the NJAC judgment, has not created the All India Judicial Service under Article 312, and has not enacted a judicial standards and accountability law.
  • Inaction is the legislature’s most consequential contribution to judicial supremacy — every vacuum it leaves is an invitation.
• By rhetorical attack. The 2025 exchanges — the Vice-President’s “nuclear missile” remark, a ruling-party member of Parliament suggesting Parliament might as well close down if the Supreme Court is to make law, and the Court’s own retort that it is not as fragile as flowers — mark a coarsening of the institutional conversation.

The executive’s responses

• Delay in appointments. Collegium recommendations sit unactioned for months, sometimes years, and names are returned selectively — a veto exercised by the clock rather than by law.
  • Individual instances have become emblematic: a stalled elevation, a punitive-looking transfer of a High Court judge, a reiteration ignored.
• Non-compliance with directions. Weak remedies and slow enforcement mean many orders on nutrition, prison conditions, police reform and pollution remain substantially unimplemented; the police-reform directions in Prakash Singh are the standing example.
• Post-retirement inducement. The structural criticism, made as early as the First Law Commission, is unanswerable in its own terms: if age renders a judge unfit to continue judging, it cannot simultaneously render him fit to be appointed to something else.
• Executive-mindedness at the top. The “executive court” thesis, whatever one makes of it, describes a strategy that costs the government nothing and delivers more than confrontation ever did.

Has activism strengthened or undermined parliamentary democracy?

Strengthened	Undermined
Kept the rule of law operative when the elected organs failed	Substituted unaccountable preference for accountable choice
Made rights real for people with no political voice at all	Selected causes by which petitions arrive, not by need
Enforced constitutional limits on emergency power and Article 356	Appointed itself through the collegium and the NJAC judgment
Supplied remedies where no law existed — Vishaka, Vineet Narain	Legislated without data, budget or trade-off analysis
Restored transparency in political finance and candidate disclosure	Left orders unimplemented, devaluing judicial authority
Gave the political system a residual source of public trust	Reduced the incentive for Parliament to legislate at all

• The honest reading is that both columns are true, and the second grows as the first is repeated. Every successful intervention lowers the political cost of legislative inaction, which produces the next vacuum, which produces the next intervention.
• The gravest long-run risk is not usurpation but dependence — a political class that learns it can outsource the difficult questions, and an electorate that learns to petition rather than to vote.

The contemporary picture

The period since 2023 has produced evidence for every position in this argument at once, which is why the debate has not resolved. The same Court struck down the country’s political-finance architecture, deemed a state’s bills assented to, and was then told by its own Constitution Bench that it had no power to do the latter.

• The Court remains capable of major constitutional adjudication. The privacy judgment, the decriminalisation of consensual same-sex relations and adultery, the electoral bonds judgment, the seven-judge holding permitting sub-classification within the Scheduled Castes in State of Punjab v. Davinder Singh, and the demolition guidelines all issued from the same institution within a decade.
• The demolition guidelines are a good current test of the entitlement/policy test. Directing that no residential structure be demolished without prior notice, a fifteen-day window and a reasoned order, with personal liability for officials who violate it, enforces due process under Article 21 against a punitive administrative practice — it is not a choice among planning policies.
• The 2026 highway-safety directions test the boundary in the other direction. Holding safe passage on roads to be part of Article 21 is orthodox creativity; directing task forces in every district, ambulances at seventy-five-kilometre intervals and compliance reports within seventy-five days is administration by decree, and its fate will be decided by whether the compliance affidavits ever arrive.
• The advisory opinion on Governors is the most significant self-limitation in years — a five-judge bench holding that Article 142 cannot supplant the Constitution is a doctrinal check the Court has rarely placed on itself.
• The institutional numbers are the quiet crisis. Record pendency at the Supreme Court, more than five crore cases across the system, persistent High Court vacancies and an unreformed appointment process together suggest that the Court’s core function is being crowded out by everything else it has taken on.
• What has not changed is the diagnosis Mehta offered two decades ago: the Court’s power keeps growing, its grounds of legitimacy do not, and no institution has produced the empirical account of what judicial intervention actually achieves.

Conclusion

That the Supreme Court of India has become a forum for policy evolution is not a contestable proposition; it is a description. Vishaka legislated in substance, environmental jurisprudence set standards and created authorities, and the rights to food, education, livelihood, health and privacy were all judicially constructed. The question worth arguing is not whether but when this is legitimate, and the answer cannot be a mood — it has to be a test.

• The defensible position is that judicial policy-making is a second-best response to executive and legislative failure: legitimate where a constitutional entitlement is being denied and no other remedy exists, illegitimate where it substitutes judicial preference for a contestable policy choice.
• The test to apply — is the Court enforcing an entitlement or choosing among permissible policies? Hussainara Khatoon and Vishaka pass it. Cricket administration, cinema-hall anthems, distances between liquor vends and highways, and deadlines for the President do not.
• A second condition should attach to every intervention that passes the test: the order must be enforceable by the Court itself, time-limited, and expressly interim pending legislation, on the Vishaka model. Permanent judicial legislation is a contradiction.
• And a third, addressed to the Court’s own house: an institution asking to be trusted with policy must first discharge its adjudicative function — a Court with record pendency and an opaque appointment process is arguing for authority it is not currently earning.
• The final judgement on Indian judicial activism is that it saved the constitutional order twice — from an amending power that would have hollowed out rights, and from an emergency that suspended them — and that it has since become the standing excuse for the political system not to do its own work. Both halves of that sentence are true, and a serious answer has to carry both.