Judicial Activism: Shaping Public Policy and Protecting Rights

When elected governments falter, parliaments stall, or bureaucracies look the other way, where do ordinary citizens turn? For decades now, the answer in India has often been the courtroom. Judicial activism – the willingness of judges to step beyond a narrow, textual reading of the law to protect rights and push public policy in a just direction – has become one of the most distinctive features of our constitutional democracy. It has freed prisoners, cleaned rivers, protected women at the workplace, and expanded what the right to life really means. But it has also sparked one of the longest-running debates in Indian public life: how much is too much?

What exactly is judicial activism? 🔗

Judicial activism is the idea that judges should not be silent umpires merely applying the letter of the law. Instead, they should actively interpret the Constitution and statutes to protect citizens’ rights, enforce constitutional values, and correct injustices – especially when the legislature or executive fails to do so. The term itself was first coined by the American historian Arthur Schlesinger Jr. in 1947, but the idea has taken on a distinctly Indian flavour since the late 1970s.

In the Indian context, judicial activism is tightly linked with the power of judicial review granted under Articles 13, 32, 142, and 226 of the Constitution. Article 32, which Dr. B.R. Ambedkar famously called the “heart and soul” of the Constitution, allows any citizen to directly approach the Supreme Court to enforce fundamental rights. Article 226 extends similar powers to the High Courts. Article 142 empowers the Supreme Court to pass any order necessary for doing “complete justice” – a provision that has become a powerful engine of activist judgments.

Activism versus restraint 🔗

Judicial activism is best understood in contrast to judicial restraint, where judges stick closely to the text of the law and leave policy-making to elected representatives. An activist judge reads the Constitution as a living, breathing document that must respond to changing social realities. A restrained judge believes the courts should not substitute their own views for those of the legislature. Both approaches have legitimate places in a democracy – the tension between them is what keeps the system honest.

The rise of judicial activism in India 🔗

The activist phase of the Indian judiciary began in the late 1970s, shortly after the Emergency (1975-77). Public trust in the executive and legislature was shaken, and the courts stepped in to restore faith in constitutional governance. Two judges – Justice P.N. Bhagwati and Justice V.R. Krishna Iyer – are widely credited with pioneering this shift. They introduced procedural innovations that allowed ordinary citizens, and even letters sent by prisoners, to reach the highest court.

The shift was not accidental. Corruption in other arms of government, a legislature often paralysed by political considerations, and an executive that failed to deliver basic services created a vacuum. As one legal scholar puts it, the Supreme Court and High Courts took on the task of protecting democratic values when other institutions appeared to abandon them.

Public Interest Litigation: the engine of activism 🔗

If judicial activism is the ideology, Public Interest Litigation (PIL) is the vehicle that made it work. Traditional legal procedure required the person bringing a case to show a direct personal injury – the rule of locus standi. This rule kept the courts out of reach for India’s poor and marginalised. PIL broke down that wall.

In S.P. Gupta v. Union of India (1981), the Supreme Court ruled that anyone with sufficient interest and a sincere intention could approach the court on behalf of someone whose rights had been violated. The court even agreed to treat letters and postcards as writ petitions – a practice known as epistolary jurisdiction. Suddenly, a prisoner’s handwritten complaint or a journalist’s letter about bonded labourers could set the machinery of constitutional justice in motion.

Landmark cases that shaped public policy 🔗

A handful of cases illustrate how judicial activism, working through PIL, reshaped Indian public life.

Expanding the right to life 🔗

Article 21 of the Constitution simply says no person shall be deprived of life or personal liberty except by procedure established by law. Through activist interpretation, the judiciary has turned this one sentence into a sweeping charter of rights. In Maneka Gandhi v. Union of India (1978), the Supreme Court held that Articles 14, 19, and 21 of the Constitution are interrelated, requiring any law affecting personal liberty to be fair, just, and reasonable.

In Olga Tellis v. Bombay Municipal Corporation (1985), the court read the right to livelihood into the right to life. In Hussainara Khatoon v. State of Bihar (1979) – often called the birth of PIL in India – the court addressed the plight of thousands of undertrial prisoners languishing in Bihar’s jails, many for periods longer than the maximum sentence for their alleged crimes. The intervention led to the release of thousands of undertrials.

Protecting women and workers 🔗

In Vishaka v. State of Rajasthan (1997), the Supreme Court responded to the brutal gang rape of social worker Bhanwari Devi by laying down binding guidelines on sexual harassment at the workplace. The guidelines stood in for legislation for over 15 years until Parliament finally passed the Sexual Harassment of Women at Workplace Act in 2013. This case is a textbook example of the judiciary filling a legislative gap.

Environmental protection 🔗

Some of the boldest activist judgments have come in environmental cases. Through a series of petitions filed by advocate M.C. Mehta, the Supreme Court tackled industrial pollution, vehicular emissions, and contamination of the Ganga. In the Oleum Gas Leak case (1986), the court established the doctrine of absolute liability for hazardous industries. In other rulings, the judiciary ordered CNG conversion for public transport in Delhi and oversaw the clean-up of the Taj Mahal’s surroundings. The Supreme Court also incorporated principles from global environmental frameworks such as the Stockholm Declaration, the Rio Declaration, and the Kyoto Protocol into Indian jurisprudence.

Governance and accountability 🔗

Activist judgments have also reshaped institutions of governance. In Vineet Narain v. Union of India (1997), the court laid down guidelines to insulate the CBI from political interference. The cancellation of 2G spectrum licences in 2012 and coal block allocations in 2014 were aimed at curbing large-scale corruption, though they also raised questions about the court’s role in economic policy.

The other side: when activism becomes overreach 🔗

Judicial activism has been celebrated, but it has also been criticised – sometimes by judges themselves. The concern is simple: if the judiciary starts making policy, appointing officials, or running administrative bodies, it disturbs the constitutional balance between the three branches of government. When activism crosses into policy-making or administrative decision-making, it is commonly called judicial overreach.

Examples that sparked debate 🔗

Several recent orders have been flagged as possible overreach. In Shyam Narayan Chouksey v. Union of India (2016), the Supreme Court mandated that all cinema halls play the national anthem before every film – an order later modified after criticism that it went beyond the scope of the Prevention of Insults to National Honour Act, 1971. The 2017 order banning liquor sales within 500 metres of national and state highways was also criticised as overstepping into an administrative matter better handled by state governments, with serious consequences for revenue and employment.

Similarly, the 2015 striking down of the National Judicial Appointments Commission (NJAC) – a constitutional amendment passed by Parliament to reform judicial appointments – was seen by many as the court protecting its own turf rather than allowing democratic reform of the collegium system. The Bombay High Court’s intervention in certifying the film Jolly LLB 2 despite clearance by the Central Board of Film Certification is another example cited in the debate.

Why overreach worries thoughtful critics 🔗

The doctrine of separation of powers is considered part of the basic structure of the Constitution. Each branch – legislature, executive, judiciary – is meant to act as a check on the others. When judges make policy, they are not electorally accountable in the way MPs and MLAs are. The late Justice J.S. Verma observed that the judiciary’s role should be to ensure that designated authorities fulfil their duties rather than take those duties over.

Other concerns are practical. Judges often lack technical expertise in fields like economics, environmental science, or infrastructure planning. Court-driven policy can also create implementation problems – the judiciary can issue orders, but it depends on the executive to carry them out. When courts issue sweeping directives without clear enforcement mechanisms, compliance often suffers.

Finding the balance 🔗

The Supreme Court itself has, at times, cautioned against unchecked activism. In Divisional Manager, Aravali Golf Club v. Chander Hass (2007), the court reminded subordinate courts to exercise judicial restraint, observing that judges must know their limits and must not try to run the government. The court stressed that each organ must respect the others.

Guidelines laid down in State of Uttaranchal v. Balwant Singh Chaufal also sought to prevent misuse of PIL for personal, political, or frivolous purposes. Genuine PIL remains vital – but the court has been alert to the risk of frivolous litigation clogging the system.

The line between activism and overreach is genuinely thin, and reasonable people disagree about where it falls in specific cases. What is undeniable is that judicial activism has transformed Indian constitutional law. It has given voice to those who had none, turned abstract rights into enforceable entitlements, and held public authorities to standards of accountability that politics alone could not achieve. At the same time, unchecked activism risks weakening the very democratic institutions that make the judiciary’s role meaningful in the first place.

A healthy democracy needs an independent, vigilant judiciary – but also a Parliament that legislates, an executive that governs, and citizens who hold all three accountable. The court, in the end, is one player in a larger constitutional ecosystem, not the ecosystem itself.

What do you think? Where would you draw the line between judicial activism that protects democracy and judicial overreach that undermines it? And if courts had not stepped in on issues like sexual harassment at the workplace or environmental pollution, do you believe elected governments would have acted on their own?

References

1. https://www.drishtijudiciary.com/blog/judicial-activism-vs-judicial-overreach-a-constitutional-perspective
2. https://www.ijcrt.org/papers/IJCRT2410347.pdf
3. https://en.wikipedia.org/wiki/P._N._Bhagwati
4. https://www.lloydlawcollege.edu.in/blog/judicial-activism-india.html
5. https://blog.ipleaders.in/judicial-activism/
6. https://www.granthaalayahpublication.org/Arts-Journal/ShodhKosh/article/view/4815
7. https://www.lawctopus.com/clatalogue/clat-pg/landmark-cases-on-judicial-activism-in-india/
8. https://lawbhoomi.com/judicial-activism-and-public-interest-litigation/
9. https://www.drishtiias.com/to-the-points/Paper2/judicial-activism-restraint-overreach