An Analysis of Judicial Activism vs. Judicial Overreach

“The judiciary must be a check, not a choke, on democracy.”
– Arun Shourie 

Introduction

The prime role of the judiciary is to interpret laws, uphold constitutional values, and ensure justice. In many democracies, particularly in India and the United States, courts sometimes adopt a proactive approach to address issues related to fundamental rights, governance, and policy—this is known as judicial activism.

However, when judicial intervention exceeds its constitutional mandate and encroaches upon legislative or executive functions, it results in judicial overreach, disrupting the balance of power. While judicial activism serves as a safeguard for democracy and rights, judicial overreach risks undermining the separation of powers. This article explores the distinctions between the two, their implications, and relevant cases.

Judicial Activism

Judicial activism refers to the proactive role played by the judiciary in interpreting the law and the Constitution to protect fundamental rights, uphold justice, and address social injustices. It empowers the courts to step in when legislative or executive actions fail to uphold constitutional principles. Through public interest litigation (PIL) and landmark judgments, judicial activism has helped address issues such as environmental protection, human rights, and gender equality.

Also check: Judiciary Exams in India

Cases on Judicial Activism

In Vishaka v. State of Rajasthan and others, the Supreme Court of India laid down guidelines for preventing sexual harassment at workplaces. The case was filed after the brutal gang rape of Bhanwari Devi, a social worker who was assaulted for trying to stop child marriage. In the absence of specific legislation, the Court relied on international conventions, particularly the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), to formulate the Vishaka Guidelines. These guidelines mandated employers to prevent harassment, establish complaint mechanisms, and promote a safe work environment, influencing future legislation like the POSH Act. 

In the Kesavananda Bharati [vi] case, the Supreme Court of India established the Basic Structure Doctrine. The case challenged constitutional amendments that affected property rights. The Court ruled that while Parliament has the power to amend the Constitution under Article 368, it cannot alter its “basic structure,” ensuring the core principles—such as democracy, secularism, and judicial independence—remain intact. This decision limited Parliament’s amending power, preventing any fundamental changes that could undermine the Constitution’s essence. The ruling struck a balance between constitutional flexibility and protecting its foundational principles, shaping Indian constitutional law significantly.

The Maneka Gandhi Case was a landmark case in Indian constitutional law that expanded the interpretation of Article 21 (Right to Life and Personal Liberty). Maneka Gandhi’s passport was arbitrarily impounded by the government without providing reasons, prompting her to challenge the decision. The Supreme Court ruled that “personal liberty” must be interpreted broadly and cannot be curtailed arbitrarily. It established that any law restricting life or liberty must be just, fair, and reasonable, strengthening the doctrine of natural justice and the interrelationship between Articles 14, 19, and 21, significantly enhancing the scope of fundamental rights in India. 

Judicial overreach occurs when courts exceed their constitutional limits and interfere with policy decisions or administrative functions, which are traditionally the domain of the executive and legislature. Unlike judicial activism [viii], where courts interpret laws expansively to uphold justice, judicial overreach involves making laws or directing executive functions, thereby violating the principle of separation of powers.

Causes of Judicial Overreach

Several factors contribute to judicial overreach:

Legislative and Executive Lapses—When the legislature fails to enact laws or the executive neglects its duties, courts may step in, sometimes overstepping their authority.

Public Interest Litigation (PIL) Misuse— While PILs serve as a tool for justice, some cases push courts into policy-making, leading to judicial overreach.

Weak Institutional Mechanisms—Lack of proper checks on judicial authority enables courts to overstep their jurisdiction.

Increasing Judicial Activism—Courts taking an assertive stance sometimes blur the line between activism and overreach.

Media and Public Expectations—The judiciary is often pressured to deliver quick justice in sensitive matters, sometimes leading to excessive intervention.

Cases of Judicial Overreach

Several cases illustrate judicial overreach, where courts have ventured beyond their constitutional role:

National Anthem Case —The Supreme Court directed movie theaters to play the national anthem before films, raising concerns about unnecessary judicial interference in individual freedoms. The order was later modified.

Liquor Ban on Highways —The Supreme Court imposed a ban on liquor sales near highways to reduce accidents. While well-intentioned, this decision impacted businesses and state revenues, a matter typically left to the executive.

Judicial Control Over Policy Decisions—In some instances, courts have dictated governance matters, such as banning certain industrial activities or intervening in infrastructure projects, which ideally fall within the executive’s domain.

Pakistan’s Judiciary Dismissing a Prime Minister (2017) – Pakistan’s Supreme Court disqualified Prime Minister Nawaz Sharif from office, a move some critics saw as judicial overreach, affecting political stability.

Consequences of Judicial Overreach

Violation of the Separation of Powers—It disrupts the balance between the three branches of government, weakening the democratic framework.

Undermining of the Legislature and Executive—Excessive judicial intervention weakens the authority and functioning of elected representatives and government agencies.

Lack of Judicial Accountability—Judges, being unelected officials, lack direct accountability to the public, raising concerns about unchecked power.

Policy and Governance Disruptions—Courts interfering in economic and administrative matters can lead to impractical policies and governance challenges.

Judicial Overburdening—Excessive intervention in governance diverts judicial resources, delaying core legal proceedings.

Conclusion

Judicial activism strengthens democracy by safeguarding rights, but judicial overreach undermines it by disrupting institutional balance. Courts should safeguard the Constitution while refraining from encroaching upon the legislature’s role. A balanced approach ensures justice while preserving democratic governance.

While judicial activism is essential for upholding rights and correcting injustices, judicial overreach threatens democratic stability by disrupting the separation of powers. Courts must balance delivering proactive justice with respecting constitutional boundaries, avoiding the roles of lawmakers or administrators. Judicial restraint, along with accountable governance, is essential for a healthy and functional democracy. The judiciary must remain an impartial guardian of justice without encroaching on legislative and executive domains.

–Ms. Anusha M. Virupanavar

Assistant Professor, School of Law, Governance and Public Policy

Chanakya University, Devanahalli, Bengaluru

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