Judicial Activism and Judicial Overreach: A Need to Define the Wafer-Thin Difference

Authored By Paras Gupta, Student Editor, Lexstructor


Time and again, there have been regressive and languishing debates on the pressing need to define the distinction between judicial activism and judicial overreach, but with no conclusions. Often the judicial overreach is misunderstood with the judicial activism and the results are, no doubt, catastrophic. Judicial activism refers to the overactive role played by the judiciary in upholding the constitutional and legal rights of the citizens. [1] However, the judicial activism becomes judicial overreach when, while doing so, the judiciary starts sticking its oar in the domain of executive.

The stability of India rests on its three pillars: Legislative, Executive and Judiciary. If any of these pillars leaves its place and tries to poke its nose in the work of other pillars, then the foundation of India will be in grave danger and the results will surely be disastrous. The balance between the legislature, executive and judiciary is the backbone of our constitution. Over the past few decades, there has been an increased enrichment of judiciary in the domain of executive. The judiciary plays a significant role of deciphering and applying the law and arbitrating upon contentions between one citizen and another and between a citizen and a state. The function of courts is also important in maintaining the rule of law and to assure that the government runs in accordance with law. However, instead of acting as the guardian of the Constitution, the courts are increasingly dictating policy action to the government. Despite being their work clearly specified as to execute the laws and to adjudicate, often there have been instances that the judiciary can be found prying into the work of the judiciary.

Unabated instances of judiciary stepping into the domain of executive

There have been unabated instances of the judiciary stepping into the executive’s domain. In many recent judgments, the Supreme Court has become hyper-activist in making laws. But can judges legislate? This question has already been answered in the past by the court. In Ram Sahuib Ram Jawaya Kapur v. The State of Punjab [2], the court observed: “Our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.” This implies that there should be a broad separation of powers in the Constitution among the three organs of the state, and that one organ should not encroach into the domain of another. If this happens, the delicate balance in the Constitution will be upset and there will be chaos.

Making laws is the function of the legislature. But is this being observed? Firstly, in Arjun Gopal v. Union of India[3], the Supreme Court fixed timings for bursting Diwali fireworks and prohibited the use of non-green fireworks, although there are no laws to that effect. Secondly, in M.C. Mehta v. Union of India[4], the court annulled the statutory Rule 115(21) of the Central Motor Vehicle Rules, 1989, when it directed that no BS-4 vehicle should be sold after March 30, 2020, and that only BS-6 vehicles can be sold after that date. Thirdly, in Subhash Kashinath Mahajan v. State of Maharashtra[5], the court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail will be granted to persons accused under the Act; by requiring a preliminary enquiry; and by prohibiting arrest under the Act except with permission in writing by the appropriate authority. Fourthly, in Rajesh Sharma v. The State of Uttar Pradesh[6], the court felt that Section 498A of the Indian Penal Code was being misused. So it amended that Section by requiring complaints under that provision to be sent to a Family Welfare Committee constituted by the District Legal Services Authority, although there is no such requirement in Section 498A At last, the National Green Tribunal (NGT) requested that no 15-year-old petroleum driven or 10-year-old diesel-driven vehicle will employ in Delhi, and the Apex Court has directed impounding such vehicles, though neither the NGT nor the Supreme Court are legislative bodies.

Results of Judicial Overreach

The judicial overreach in India is, slowly and steadily, spreading its roots, vitiating the efficacy and restricting the law making powers of the executive and legislature. The results of judicial overreach are also menacing and treacherous. The overriding powers of the judiciary many a time, interfere in the domain of the executive and legislature which goes against the spirit of separation of powers. Moreover, one judgement becomes the standard ruling for other cases which results in the chain of judicial overreach. Moreover, the decisions taken by the court ,while exercising judicial reach, erodes the faith of the people in the law made by the elected representatives in the parliament and thus put an end to the importance of the executive and legislative.[7]


Judicial overreach has grown particularly in terms of policy making and judicial legislation which is worrisome. The judiciary has the constitutional right to check the overreach of the executive and the legislature, but there is no such check on the judiciary or its accountability. An independent judiciary is of critical importance in a political democracy for it provides checks and balances vis-à-vis the executive and the legislature. There is a pressing need to make an institutional mechanism to check the judicial overreach. The answer might lie partly in self regulation. Almost four centuries ago, Francis Bacon put it perfectly in his Essays Of Judicature (1625): “Judges ought to remember that their office is jus dicere and not jus dare—to interpret law, and not make law or give law.” [8]

If judges are free to make laws of their choices, not only would that go against the principle of separation of powers, it could also lead to uncertainty in the law and chaos as every judge will start drafting his own laws according to his whims and fancies. [9] There is a pressing need to define or redefine, whatever it takes, the limits of the three organs of India in order to hamper them from crossing their limits and create impediment in the administration of other organs. Otherwise, the step by step, brick by brick destruction of the edifice of India’s legislature will be unavoidable.


[1] Arun Bhargava, Judicial Activism and Judicial Restraint in India, Gradeup

[2] AIR 1955 SC 549

[3]  AIR 1973 SC 173

[4]  2019 (1) SCT 128 (SC)

[5] AIR 2018 SC 1498

[6] AIR 2017 SC 3869

[7] Supra Note 1

[8] Deepak Nayar, Executive decisions are not for judiciary, Livemint, https://www.livemint.com/Opinion/f3uLlKYx14kpUKqa09AGYL/Executive-decisions-are-not-for-judges.html

[9] Markandey Katju, When Judges Legislate, The Hindu, https://www.thehindu.com/opinion/op-ed/when-judges-legislate/article25508359.ece

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