In a democratic country like India, the paramount objectiveof the judiciaryis to protect therights of every Citizen.Under the Indian Constitution, the State is under the prime responsibility to ensure justice, liberty, equality and fraternity in the country. The citizens of a state have always a great expectation that if nowheretheir right will being protected, the court is the only place where justice can be delivered. But a big question may still exists that, after the enforcement of said justice,whether the very object of such justice i.e. the said right will actually delivered to that person or not? A well-known principle of Natural justice is that;“Justice should not only be done but manifestly and undoubtedly seen to be done”. According to the above principle an inference can be drawn that, it is the duty of every Jurist not only to perform their duty but also to go beyond that to verify whether the actual justice will deliver or not; provided that to some extent. So again there is a thin boundary lies between to what extent the jurists can go beyond to perform their duties vested with them that we called “Judicial Activism”and till which point they should not exceed that we called “Judicial Restraint”. The above is the very principle on which such article is based on.The objective of this article is to make understand the trends in judicial activism and the boundaries between judicial activism and judicial restraint. 


The Judiciary has been considered as the guardian and protector of the Constitution. Considering this power, the Judiciary has played an active role whenever it most required, in protecting the individual rights against the State’s unfair, unjust and unreasonable action. WhenArticle-13 isread with Article-32 and 226 of Indian Constitution, it empowers the Judiciary to interpret laws formulate by the parliament which is ultimately known as Judicial review. The power of judicial review is a basic structure of the Indian Constitution,so it is the power of the judiciary to check the constitutionality status of every law; i.e. the formulation of law should be in accordance with the constitutional provision. But what to do if in case Pima facie there is no law exist regarding any matter to which justice need to deliver (Legislative Vacuum), which to review and to which judiciary interpret for enforcing justice.It is not always possible to uphold the “Rule of Law”.  In those cases Jurist are make one step beyond their actual power &by using Natural Justice Principledirect the Legislatureto formulate those requirement laws or to follow any guidelines provided by the Judiciary. Although it is not the function of the judiciary but it is needful for speedy enforcement of justice; for which judiciary interfere into the domain of Legislative and Executive.Such functions of jurist in recent days raised some enthusiasm and criticism amongst the members of different functionaries. 

In Black’s law dictionary“Judicial Activism” is a “judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies”. It is a philosophy of judicial decision making where by Judges allow their personal views about public policies, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violation and are willing to ignore precedent. According to Merriam Webster’s dictionary “judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent, or are independent of, or in opposition to supposed constitutional or legislation intent”. In very well manner we can say judges are start to express their personal views in the social reforms rather than strict Interpretation of ‘Rule of Law’, which encourages the ‘Public Interest Litigation’ (PIL) and liberalise the principle of ‘Locus Standi’.

        The principle of Judicial Activism originated and developed in the USA. The term “Judicial Activist” was first time used by Arthur Schlesinger Jr. in a Magazine in 1947. Then latter Judge Joseph C. Hutcheson who used this concept in 1959, while adjudicate a case named as Theriot V. Mercer. In India, concept of judicial activism was introduced in mid-1970s. Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and Justice D.A. Desai the four prominent jurists of our Supreme Court laid the foundation of judicial activism in our country.

        According to Dr. B.L. Wadehra; where the responsibility of the Government collapsed and when the Legislature and the Executive fails to discharge their respective functions, resulting in erosion of the confidence in the constitution and democracy among the citizens at that time it leads to tremendous pressure on judiciary to step in aid for suffering masses. In such cases judiciary may have to overstep its normal jurisdiction and intervene within the functions of legislative and executive. And by the way of such step out Conflict of Interest take place between the Legislative, Executive and Judiciary. The Judicial activism can also be explained as a creative and innovative interpretation of law as well as active process of implementation of “Rule of law”.


Generally most of the Democratic countries operate on the basis of “Separation of Power”. The term evolved and popularised by Montensquieu in his book “The Spirit of Law”. Separation of Power is a basic structure of Indian Constitution. It provides & maintained the three organ i.e. the Legislature, the Executive & the Judiciary to function their respective obligation individually i.e. not to interfere into the functions of another, while Art-142 of the Indian Constitution provides power to the Supreme court by exercise its jurisdiction may passed such decree or order as is necessary for doing complete justice in any matter before it. By the way of delivering complete justice, Judiciary compel himself to cross the boundary & step into other organs domain resulting which the boundaries lies between the three organs are somehow diluted.


Judicial Activism & Judicial Restraint are the polar opposite of one other or are the two sides of a coin. The coexistence of both cannot be possible at the same time. Some broad meaning provided by different jurist; According to Justice Verma, “Judicial activism is the active implementation of Rule of Law”, where act of Judiciary is only restrict to interpretation of law. According to Justice Rehnquist, Judicial activism is tends amount to Judicial Legislation i.e. Judiciary exceeds its limit and act as a Legislature by Formulating laws.  According to the Constitution Judiciary empowers to act as an arbitrator in a dispute comes before it. Generally itconsider that the judiciary is an organ having least power in comparison to other two, but the power of interpreting a law nowadays makes Judiciary more powerful as because Judiciary is the only organ who can decide the right understanding and right approach over the function of other. By doing so, Judiciary not only interpret the law but also interfered into the function of others. With the power of ultimate interpreter the Judiciary plays a proactive role by putting extra ordinary control over other two organ in the State. While exercising his power Judiciary must also followed the “Doctrine of Separation of Power” in very absolute manner, but inferences can be made by recent legal history that the Principle of Doctrine of Separation of Power followed by the Judiciary is in diluted form. There is a question arise while adjudicating the disputes whether judiciary transcending the limits prescribed for itself? The answer of this lies with the judiciary itself, but while the question arises subjecting to the power of other two organ it is decided by the Judiciary. So in that scenario Judiciary place in very interesting situation.


In recent years new dimensions were evolved through judicial activism by some popular Jurists. The Judiciary has adopted a healthy trend of interpreting law in social context. Some of the example of those contexts which shows the proactive role of Jurist are:

In 1967, the Apex Court in Golaknathcase, it was held that the Fundamental right in part-III of the Constitution cannot be amended. Even though there is no such provision mentioned in Article 368 of the Constitution. So this decision at that time restrict the power of the Legislature. Subsequently in Keshavananda Bharti case, a Thirteen Judge bench in the Apex Court overruled the Golaknath case decision and held thatthe basic Structure of the Constitution couldn’t be amended.

In later days the activist role of Judges change a judicial interpretation in Article-21 by increasing its ambit and made its application wider than former.  In Maneka Gandhi Vs Union of India , the Court extendedthe scope of life and liberty, which includesfreedom of travel and by over ruling the A. K Gopalan case judgment holding that the principle of Natural Justice must be applied in all cases. Thus the “Due Process of Law”, which was consciously & deliberately avoid by the Constitution maker was introduced by the judicial activist support Jurist in the Apex Court. One of the landmark cases relating to PIL (public Interest Litigation) was introduced by Apex Court in Hussainara Khatoon case; many of the under trail prisoners has already served the maximum sentence without  being charged for offence, so the Apex Court held that right to speedy trail is a fundamental right comes under the Article-21 of Indian Constitution.The Court directed the State to provide free legal aid to the under trail prisoners so that they could get bail or final. 

In Vishakha Vs State of Rajasthan, the Apex Court in the absence of any enacted laws provided a guideline for Sexual harassment & abuse of women, more particularly against Sexual harassment in work places for due observance at all work institutions, until an Act is enacted for very same purpose.


The term judicial restraint means, a judge should not goes that much beyond of his power to decide a matter by which he interfere into the functions of legislative and executive. It also called as “Judicial Overreach”. The term legal limitation alludes to a conviction that judges should restrain the utilization of their energy to strike down laws, or to pronounce them unjustifiable or illegal, unless there is an unmistakable clash with the Constitution.

The Constitution of India did not provide the Judiciary to be a super legislature or a substitute for the failure of other two organs. In some cases judiciary remains silent in other two organs functions and in some other cases judiciary step into the other two organs domain. One of the example of judicial restraint is State of Rajasthan Vs Union of India, in which the SC rejected the petition on the ground that it involved a political question and therefore the court would not interfere in that matter. In S R Bommai case, the SC said that there are certain situation where political element dominates and no judicial review is possible. In 2nd Judge Case and in 3rd Judge Case, which created the Collegium System for appointment of Judges, which was not based on any provision in the Constitution. Article 124 which prescribe how SC judges are to be appointed but does not talk about any Collegium System. In SC Advocate on Record Association Vs Union of India, the SC declares NJAC Act to be unconstitutional on the ground that it affects Judiciary’s independence. 

By concluding this article, I want to left a question for the readers to decide; which you like most: A judge who only performs his part of obligation and not goes beyond that or a judge who by the way of following the Rule of law and goes beyond that for delivering complete justice. By raising this question I also remember the ‘doctrine of separation of power’.

About the authors

(LEFT IMG)Aman Senapati is a student of SOA National Institute of Law, pursuing LL.B(H) and he is currently in his 2nd semester. Legal writing is his passion, and he always makes effort for being better in this skill. Property law and Law of crime are some subjects towards which he gives more values. As a law student he believes, “Law is not learning of facts but training of minds to think.”

(RIGHT IMG)Pravat Kumar Panda is a student of 2nd semester of LL.B(H) in SOA National Institute of Law, S’O’A (Deemed to be a University). His major interest always lies on the Constitutional Law. He prefers to focus on the extra co-curricular activities like Moot Court, Research work, debate & article writing to enhance the mind to think differently, which makes his ambit of legal career much wider.

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