While the judiciary should not remain a silent spectator in case of constitutional rights of citizens being infringed by executive policies, it must avoid assuming the role of the executive. Critically analyze.

Separation of powers is a cardinal feature of the Indian constitution, based on the doctrine of checks and balances. Recently there have been instances of judicial activism, which have raised concerns on the role of judiciary.

Why intervention of Judiciary is needed?

  • In line with doctrine of checks & balances. As seen in Anuradha Bhasin case, the courts intervened on the question, whether internet is a fundamental right or not, which was a result of executive excess.
  • Courts have a constitutional role of delivering complete justice (Article 142) and they are the defender of rights (Article 32). E.g. Courts gave directions to eliminate manual scavenging.
  • Upholding ideals of social justice & secularism as constitutional core ideals. E.g. Sabrimala verdict (Gender justice).
  • Preventing executive/legislative excesses, via power of judicial review. E.g. Evolution of Basic structure doctrine.
  • Voice to the voiceless through innovative mechanisms like PIL.

However, above judicial activism should not turn into judicial overreach by assuming role of executive, as:

  • It violates doctrine of separation of powers.
  • Against principles of representative democracy, where people’s representatives makes decisions.
  • Power without accountability.
  • Lack of expertise in various domains lead to ill-informed decisions. E.g. Retraction of national highway liquor shop ban due to implementation issues.
  • Venturing into Executive’s domain leads to dereliction of duty especially when there is high pendency of cases in courts.

Way Forward:

  • Fine balance between judicial restraint & activism.
  • Act only in cases of gross violation of rights.
  • Establish objective criticism as in case of PIL guidelines.

Constitution stands on bedrock of balance between the 3 organs of government. Judiciary as upholder of constitutional ideals must act in line with above balance.


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