Judicial activism and judicial restraint - Judicial and Legislative Process

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1. Meaning
2. The case for restraint
3. The case for activism
4. The phases of the Indian Supreme Court
5. Article 142 and its limits
6. A current illustration: Governors and assent to Bills
7. Comparative note
8. Variants of judicial activism, and juristic activism
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Activism and restraint are not two kinds of judge but two ends of a range on which every court moves case by case. The question is not whether courts should be active, but on which questions, by what methods, and with what justification. An answer that only lists activist cases misses the point.

1. Meaning

Judicial activism describes a court that uses its powers of review and interpretation expansively: it reads rights broadly, scrutinises legislative and executive choices closely, relaxes procedural barriers to access, and fashions new remedies. Judicial restraint describes a court that defers to the elected branches, presumes legislation valid, decides only what is necessary, and leaves policy to those accountable for it.

The term “judicial activism” is usually traced to an article by Arthur Schlesinger Jr. in Fortune in 1947 classifying the US Supreme Court justices of the day. It is used both descriptively and as an accusation, which is one reason careful writers prefer to speak of the intensity of review.

2. The case for restraint

Democratic legitimacy. Bickel’s counter-majoritarian difficulty: an unelected court that strikes down legislation thwarts the will of the present majority.
Thayer’s rule. James Bradley Thayer (“The Origin and Scope of the American Doctrine of Constitutional Law”, 1893) argued that a court should strike down a statute only when the legislature has made a very clear mistake, not merely one the court disagrees with.
Institutional capacity. Courts lack the information, expertise and ability to supervise that complex policy requires (Fuller’s polycentric problems).
Separation of powers. In India the point was put in Divisional Manager, Aravali Golf Club v. Chander Hass, 2007 INSC 1240, (2008) 1 SCC 683: judges must know their limits, must not try to run the government, and should show humility; the Court criticised the creation of posts by judicial order.

3. The case for activism

Representation-reinforcement. John Hart Ely (Democracy and Distrust, 1980) argued that courts are justified in intervening where the political process is blocked or where “discrete and insular minorities” (the phrase of footnote four in United States v. Carolene Products, 1938) cannot protect themselves.
Rights as trumps. Dworkin: rights exist precisely to constrain majorities, so a court that defers on rights abandons its function.
The Indian argument from failure. Where the executive does not enforce the law, and the poor cannot reach court, judicial intervention fills a vacuum. This is the justification offered for public interest litigation.
The constitutional mandate. Article 13 declares laws inconsistent with Part III void; Article 32 is itself a fundamental right; Article 142 empowers the Court to do complete justice. Review is not usurped but conferred.

4. The phases of the Indian Supreme Court

Textual restraint (1950s). A.K. Gopalan v. State of Madras, 1950 INSC 13, AIR 1950 SC 27, read “procedure established by law” as any procedure enacted by a competent legislature and treated each fundamental right in isolation.
Confrontation over property and amendment (1967–1975). Golak Nath and Kesavananda; the basic structure doctrine.
Post-Emergency expansion (from 1978). Maneka Gandhi v. Union of India, 1978 INSC 16, required procedure under Article 21 to be fair, just and reasonable and read Articles 14, 19 and 21 together. Upendra Baxi explained the Court’s turn to the poor in part as a search for legitimacy after its record during the Emergency.
PIL and governance (1980s–2000s). Bonded labour, prisons, environment, and supervision of investigations by continuing mandamus in Vineet Narain v. Union of India, 1997 INSC 826, (1998) 1 SCC 226.
Rights jurisprudence (2017 onwards). Privacy, decriminalisation of consensual same-sex relations in Navtej Singh Johar v. Union of India, 2018 INSC 790, (2018) 10 SCC 1, and the electoral bonds decision in Association for Democratic Reforms v. Union of India, 2024 INSC 113, alongside marked deference on economic and security questions.

5. Article 142 and its limits

Article 142 allows the Court to pass any decree or order necessary for doing complete justice. It is the main source of activist remedies. Its limits were stated in Supreme Court Bar Association v. Union of India, 1998 INSC 183, (1998) 4 SCC 409: the power supplements the law but cannot be used to supplant substantive statutory provisions or to achieve indirectly what cannot be achieved directly.

6. A current illustration: Governors and assent to Bills

In State of Tamil Nadu v. Governor of Tamil Nadu, 2025 INSC 481 (8 April 2025), a two-judge bench held that a Governor cannot sit indefinitely on Bills presented under Article 200, laid down time-limits for the Governor and the President, and used Article 142 to treat ten long-pending Bills as having received assent. The President then made a reference under Article 143. In In re Assent, Withholding or Reservation of Bills by the Governor and the President of India, 2025 INSC 1333 (20 November 2025), a five-judge bench advised that courts cannot impose time-limits that the Constitution does not, and that Article 142 cannot be used to deem assent; but prolonged and unexplained inaction remains open to limited judicial scrutiny.

The pair shows both ends of the range within a single year: the first decision answered executive obstruction with a court-made remedy; the second drew the line at the Court substituting itself for a constitutional functionary.

Activism is not the same as overreach. A useful distinction for an LL.M. answer: activism in interpretation (reading a right broadly) is part of the judicial function; activism in remedy (running an institution, framing policy, creating posts) raises the separation-of-powers objection. Most criticism of the Indian Court is aimed at the second.

7. Comparative note

United States: the Lochner era (striking down economic regulation), then the 1937 retreat, then the Warren Court’s rights activism (Brown v. Board of Education, 1954), and now a court whose overruling of precedent in Dobbs (2022) has been called activist from the other direction.
United Kingdom: no strike-down power over Acts of Parliament; under the Human Rights Act 1998 courts read legislation compatibly where possible (section 3) and otherwise issue a declaration of incompatibility (section 4).
Canada: the “dialogue” model; the legislature may override certain Charter rulings under section 33.

8. Variants of judicial activism, and juristic activism

“Activism” is used for very different things, and an LL.M. answer gains by sorting them. The term itself was popularised by Arthur Schlesinger Jr. in a 1947 magazine article on the United States Supreme Court. Keenan Kmiec (“The Origin and Current Meanings of ‘Judicial Activism’”, 2004) identified five common meanings: striking down arguably constitutional acts of the other branches; ignoring precedent; legislating from the bench; departing from accepted methods of interpretation; and result-oriented judging.

For India, a working classification by technique:

Interpretive activism — reading a provision far beyond its words, as with the expansion of “life and personal liberty” in Article 21 after Maneka Gandhi v. Union of India, 1978 INSC 16.
Procedural activism — relaxing standing, accepting letters as petitions, appointing commissioners: the machinery of PIL.
Remedial activism — guidelines that operate as law until the legislature acts (Vishaka v. State of Rajasthan, 1997 INSC 604), and continuing mandamus, under which the Court supervises an executive programme for years.
Structural activism — limits on the amending power (the basic structure) and the Court’s control of judicial appointments.
By direction — activism can be progressive or conservative. The Lochner-era United States court and the Indian property cases of the 1950s and 1960s were activist in defence of established interests.

Juristic activism is the activism of jurists rather than judges: law teachers, scholars and lawyers who use research, writing and public argument to change the law or the Court’s direction. The standard Indian example is the 1979 open letter by four law teachers (Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar) against the Mathura judgment, Tuka Ram v. State of Maharashtra, 1978 INSC 178, which started the campaign that produced the Criminal Law (Amendment) Act, 1983. Baxi and Sarkar also petitioned the Court on conditions in the Agra Protective Home for women (Upendra Baxi v. State of Uttar Pradesh, 1980s). Juristic activism feeds judicial activism: the Court’s PIL period drew heavily on academic and activist petitioners. It also checks it, because sustained scholarly critique (Baxi on the Court and politics, Bhuwania on PIL) is one of the few forms of accountability the judiciary accepts.

How this is examined

“Explain judicial activism” appeared as a short note in July 2024. For an essay (“Judicial activism versus judicial restraint”), define both, give the theoretical case for each (Bickel, Thayer; Ely, Dworkin), trace the Indian phases with one case each, and end with the Governor-assent cases of 2025 as evidence that the Court itself moves between the two. Your conclusion should say where the line ought to fall, with a reason.