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Insights into Editorial: The judiciary is shifting the balance of power

Insights into Editorial: The judiciary is shifting the balance of power

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18 May 2016


Judiciary, in recent years, is increasingly being criticized for actively encroaching on the powers of legislative and executive authorities. “The judiciary has appropriated for itself a role far beyond its primary duties of dispensing justice and interpreting laws”, claim few parliamentarians. Few experts also claim, “step by step, brick by brick, the edifice of India’s legislature is being destroyed” by the judiciary. With the court recently ordering the creation of a National Disaster Mitigation Fund while national and state disaster response funds already exist, the issue has come to the fore once again.

What is Judicial Activism?

Judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.

Causes of Judicial Activism:

The following trends were the cause for the emergence of judicial activism — expansion of rights of hearing in the administrative process, excessive delegation without limitation, expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives; and passing of orders which are unworkable.


The judiciary in India is often called the most powerful among its tribe globally. While the creative interpretations of the text of law had started earlier, the post-Emergency phase marked a distinct turnaround in the Indian judiciary’s activism.

  • After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be insufficient. So, the pursuance of constitutional legitimacy was replaced—in the words of Lavanya Rajamani and Arghya Sengupta—“by a quest for popular legitimacy”.
  • A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation. This instrument allowed “public-spirited individuals seeking judicial redress” on a variety of matters beyond what would be permitted by the traditional rule of locus standi, which specifically addressed the concerns of aggrieved citizens.
  • Through several judgements thereafter, the judiciary has unhesitatingly shuffled into the roles of both the legislature and the executive. It assumed wide powers in matters of protection of the environment.

Why Judicial Activism is good?

  • There are many issues that are sensitive, which need to be handled with a certain amount of care that many laws don’t allow. Judicial activism allows a judge to use his personal judgement in situations where the law fails.
  • Judges have sworn to bring justice to the country. This does not change with judicial activism. It allows them to do what they see fit, within reasonable limits of course. It gives judges a personal voice to fight unjust issues.
  • It also provides a system of checks and balances to the other government branches.
  • It has its own system of checks and balances too. Even if a judge decided and ruled that certain law is unjust, it can still be actually overruled with an appeal to another court, even to the Supreme Court.

Why Judicial Activism is not so good?

  • While delivering any judgement in this regard, courts are often ill-equipped to weigh the economic, environmental and political costs involved.
  • When judicial activism is used, it is like the laws do not apply. The judges can override any law that there is, which technically means there are no laws in the judges’ eyes.
  • Sometimes when judicial activism is exercised it is done for solely selfish or personal reasons. They may be political, or the judge may have received compensation for his decision.
  • Judicial activism becomes a more profound subject for those who serve on the Supreme Court, as their rulings generally stand. With the power to have the final say on matters, their judicial opinions would also become standards for ruling on other cases.
  • It sees the letter of the law and politics as separate issues.


In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But in an environment where justice is constantly being subverted, it is arguable that the courts are left with no choice but to step beyond their traditional domain and prod the executive into discharging its constitutional responsibilities. However, this encroachment is clearly a matter of huge concern. Also, camouflaged phrases like “judicial overreach”, used often, have been incapable of instigating any self-correction by the honourable judges. Hence, it’s time for the courts to proceed ahead cautiously in this regard.