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Demarcation of Judicial activism from Judicial anarchy

By: Muskan Paruthi* |


In the present times when every major institution of democracy is under scrutiny, the judiciary is no such exception to this. In status quo, the judiciary has been facing issues ranging from not being able to be an independent watchdog for organs of the democracy to other times being too far-fetched with the idea of judicial activism, which is referred as a form of judicial overreach encroaching into the boundaries of the legislature and executive.

This article throws light on the role of the judiciary as a premium institution in democratic premises that ensures constitutional guardianship, institutional guardianship, governance optimization while gradually transforming into an uncalled supremo. In addition, taking into regard the recent judgement of the Supreme Court in Prashant Bhushan case and a few other instances as well.

Judiciary as an Institution

Judiciary is regarded as the soul of every democratic government. An independent judiciary is essential for ensuring good governance and safeguarding rights of citizens due to which Indian judiciary is held with high regards among people and perceived as a guardian of the constitution. This pedestal strives heavy responsibility upon the Supreme Court to do justice to its role resulting in judiciary adopting a progressive approach towards the problems and challenges of society by means of Judicial activism. Judicial activism refers to an extended function of the judiciary where it primarily serves as a mean to adapt to the changing needs of the society. Judiciary is often seen reprimanding, rectifying and reviewing the roles of executive and legislature to keep them within the constitutional boundaries. This function makes judiciary come face to face with the functions of legislature and executive. The Supreme Court basically acts as a saviour and an activist upon different organs of the government by means of Public Interest Litigation (PIL), conscious and evolving interpretations of the constitution, and different statues formulated as per the demands of the society. India has witnessed an extensive growth of its environment and civil rights under the paradigm of Public Interest Litigations- this also proved to be one of the major tools of social transformation and revolution in the late nineties.

The judicial review-the inherent provision within the Constitution by virtue of Article 226 and Article 227 in regard to High Courts and Articles 32 and 136 for the Supreme Court, grants power to the judiciary to review the roles of government functionaries. It mainly refers to the power vested in the Supreme Court by the Constitution of India to preview all the legislations and executive orders- for them to be in line with the constitutional spirits. Indian judiciary is empowered to strike down any law that is not in compliance with the constitutional norms and also extends to executive actions that are arbitrary or prima facie ultra vires. Article 142 along with Articles 13, 21, 32, 226 and 227 extends a unique and extraordinary power to the Supreme Court to do 'complete justice' in any matter before it whereas Article 13 draws a boundary for every ordinance policy and legislation as they are to be within the ambit of Indian Constitution only.

Thus, a manifestation of judicial activism has introduced a new dimension regarding judiciary's involvement in public administration. It is also important to note that the power of judicial review was constructed by keeping in mind the principle of separation of powers, which is a pre-requisite of the rule of law. This applies to restrain on the power of review of the Supreme Court.

The doctrine of Separation of Power

Montesquieu’s doctrine of separation of power allows an absolute separation of functions and powers between - the executive, the legislature and the judiciary. The opposite of separation of powers is the fusion of powers, often a feature of parliamentary democracies where there is an amalgamation of all three organs of government. India has adapted to a mixture of both the doctrines. The idea of separation of powers is perceived with the notion that the power can never be accumulated at one place and hence there could be no supremacy. The doctrine has been taken in the central context rather than a literal context. Concluding that Judicial activism has worked in the grey area of these organs, it is nowhere qualified to perform the functions of Legislature or Executive. Constitutionalism in the context of India means a definite government and includes the ideas of the rule of law and the separation of powers as a means of restricting and controlling government. In simple words, the Rule of Law is providing a formal structure to the doctrine of Separation of Powers in order to decide its remoteness.

Hence, the Supreme Court is not by any means empowered to encroach upon the other organs of the government, which leads us to the conclusion that the judiciary is no despotic branch of state and there is a limit to the reach of this judicial activism. Also, taking into regard the views held in State of Kerala v. A Lakshmi Kutty[1]:

each organ of the state is well-defined within the Constitution and it must function within the space specified. Keeping in view the purpose of such demarcation of negating the possibility of encroachment into the field specified for other organs. Suggesting judges not to overstep their pre-determined boundary and encroach into other two branches of state’.

The Distorted line

The review of administrative actions means that the judiciary is not concerned with the decisions but with the decision-making process. The inception of the idea of separation of power emanates the principle of ‘check and balance’. The judiciary is no such exception to the above-said principal. Divergence takes place when one institution overshadows another existent institution and completely abandons the rule of law and steps over the basic structure of the Constitution of India. Quoting the words of former CJI J. S. Verma:

The judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial ‘adhocism’ nor judicial tyranny”.

In the present context, erroneous orders of Supreme Court like- directions of Supreme Court on limiting the time to burst firecrackers on Diwali, which is supposed to come under the realm of the legislature. The Supreme Court is only justified in such interferences when there is a question of fundamental rights or gross injustice involved, which is not present in the given case as such directions clearly fall within the domain of the administration- pointing towards judicial anarchy. Judiciary being an independent institution is not for creating an unelected source of power who would tell us what to believe, it is to stop the elected executive from unchecked misuse of power.

Is Self-restraint sufficient?

Power tends to corrupt, and absolute power corrupts absolutely. Therefore, it becomes necessary to delineate this limitation of the judiciary. For the judiciary, it is regarded that self-restraint is the best restraint. An extremely powerful judiciary would defy the very purpose of democracy as the ultimate power rests with the citizens, who are represented by the Members of Parliament. The Supreme Court was never envisaged with the powers to perform the role of an unelected, third legislative chamber. The Supreme Court is empowered to such exception only in extraordinary circumstances. In case of the judiciary, it is self-restraint, while for executive and legislature there is a provision of ‘judicial review’, which is missing in the case of the judiciary. This situation when leading to an extreme can create havoc in a state. Mentioning the view held in 2005 Minor Priyadarshini’s case:

‘that the Constitution of India has differentiated the roles of Executive, Legislature and judiciary so that there is no encroachment and the inherent idea of Constitution and democracy can be safeguarded. Heavy reliance is given to judiciary which has the right to affirm the boundaries of all three organs of the state’. Justice Katju in the same judgement also mentions about ‘the self- reliant approach of the judiciary while setting the boundaries. Which implies that it should encompass itself within the boundary and should not surpass another organ and become a supreme legislature’.

Whenever the judiciary seems to overstep its constitutional periphery, self-restraint often comes to the rescue. There have been cases where Judiciary seems to overdo its power as there being no check on its power. The only way, therefore, is to exercise self-restraint and eschew the temptation to act as a super-legislature. By exercising restraint, the judiciary will only enhance the faith of people in it. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state, which can be achieved when there is equality between the three organs and judiciary fosters that equality by minimizing inter-branch interference. It also tends to protect the independence of the judiciary; the notion being when court tends to start performing the function of legislature or administrator simultaneously the judges have to be treated and selected in a similar manner as a legislator or administrator and should also be subjected to public scrutiny. The portfolio of an independent judiciary depends upon its removal from a political and administrative process holding the view of Justice Pathak in the Justice Bhagwati PIL judgement where he warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”.

Even after the above-stated approach, there has been a situation where such a powerful notion of judiciary does not gel up with the ideals of democracy. On a side note,crossing of the boundary cannot be seen only in the case of the judiciary. There are numerous accounts where the legislature overrides the judgement of the courts. But what is important now is the underlining fact that the judiciary as an institution has still not perceived the notion of holding them (judges) accountable to the people- as in the case of executive and legislature.

Contempt power of the Court

The idea of contempt of court has been elaboratively described in Article 129 of Constitution of India and The Contempt of Court Act’1971, the intent was to provide sufficient freedom to ensure the independence of judiciary meanwhile protecting the integrity of judiciary while administering the due process of justice. But in the status-quo, it has been used by the judiciary to cover its vulnerabilities. Taking into regard the Prashant Bhushan’s contempt case which brings a lot of suspicion about the power of the judiciary. In the given case, the Supreme Court assumed the power of contempt as an inherent and absolute power even capable of surpassing the fundamental liberties provided to the citizen. In all possible interpretation of the law of contempt, it is only acceptable when it is used to restore the faith of the people, or unnecessary obstruction or obstruction in the due course of justice and not to cover its weakness. Although in the fine that has been imposed (Re-1) in this case can be seen as minuscule, one should not forget the symbolic aspect of this fine which is being used to satisfy the grudge against a particular individual and is in sharp contrast to the definition of ‘justified criticism’. Power of contempt was used as a sledgehammer. This can be very blatantly seen but often is uncalled for in the absence of a proper mechanism to address it. It is a simple case where judiciary in the name of prestige completely shunned the democratic ideals. Judiciary can also deviate from Justice; keeping this view in mind one should look upon judiciary as only then a better normative can be formed.


The fine line that works between judicial activism and judicial anarchy depends upon the principle of balance and constructive application of judicial activism. Presently, the complete reliance of judicial responsibility depends on innate ethics and principal of judges where they themselves acknowledge their wrongs and set limits.

One cannot completely let go the idea of the independent judiciary but the area of discretion should be minimised and the norms, standards or guidelines should regulate it so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises. Power whether legislative or judicial, are all vulnerable to abuse. In order to reach an accurate balance of power within these organs, it is very essential for the existence of an impartial judiciary. It requires a premise where an independent institution should be set up to look into these matters as these responsibilities cannot be granted to the Legislature or Executive as stated in the 121st Law Commission Report. Steps like covering the Court within the ambit of the Right to Information Act, 2005 should be encouraged. Further, judges should not be allowed to contest elections; also, there is a need for better co-operation within the executive, legislature and judiciary to achieve all these ends.


* The author is a student at Law centre-l, Faculty of Law, Delhi University.

[1] 1987 AIR 331, 1987 SCR (1) 136


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