In Indian democracy, we would always hear the fact that the laws are made by the Parliament, enforced by the Executive, and interpreted by the Judiciary. But nowadays, a new phenomenon has stepped in where the courts somehow enforce the laws through their orders. Judicial activism is what the process is known as. And while some call it an indispensable instrument of justice, others call it an intrusion. Can courts, then, enact the laws? Let us see it in the light of the Constitution.
What does the Constitution provide?
India has the doctrine of separation of powers:
Parliament/State Legislatures: Enact laws.
Government: Implements the laws.
Courts: Enforce and interpret laws and award justice.
There is nothing in the Constitution that suggests that the courts can enact laws. However, Article 141 must state:
“The law declared by the Supreme Court shall be binding on all courts within the territory of India.”
This equates the Supreme Court’s interpretation into law. Is this law-making or law-interpreting? However, open the doors to judicial activism.
What Is Judicial Activism?
Judicial activism is when the courts exceed their mere role of general interpretation of the law and effectively frame policy or fill legal loopholes, especially when the Legislature itself is unavailable.
Examples of Judicial Activism in India:
Vishaka v. State of Rajasthan (1997)
→ There was no Indian legislation to prohibit sexual harassment at work. The Supreme Court itself laid down guidelines, which were followed to the letter until Parliament enacted legislation in 2013.
Right to Privacy (2017)
→ The Supreme Court declared that the right to privacy was a constitutional right under Article 21, even though the right is not specifically enshrined in the Constitution.
→ Judges, through Public Interest Litigations (PILs), have banned plastics, controlled automobile exhausts, and established forest reserves in their stead—without Parliament legislation directly.
Judicial Activism v. Judicial Overreach
While activism saves rights and fills gaps, judicial overreach occurs when the judiciary oversteps its limits and enters the domain of legislatures.
Example of Controversy:
National Judicial Appointments Commission (NJAC) Case (2015)
→ Parliament enacted a bill to reorganize the judiciary. It was invalidated by the Supreme Court on the grounds that it was an attempt to compromise judicial independence. It was rejected as an attempt to take over power by the opposition.
Why is judicial activism done?
Judicial activism will be done when:
- The Legislature is confused or careless.
- Fundamental rights are abused, no relief.
- Pressure from the masses for justice.
- Then enter the courts as defenders of the Constitution.
What do People Say?
The courts are said by their advocates to restrict the power and safeguard the rights of the people, where the government will not.
The critics state that this will have to be left in the hands of non-elected judges—it is not democratic.
Conclusion: So, Can Courts Make Laws?
Technically, courts do not “make” law in the way Parliament does. But in the interpretation, direction, and closure of legal loopholes, they can formulate binding legal rules. Judicial law-making is an area calling for exercise with responsibility and restraint.
India’s Constitution permits courts to be activist if the situation demands so, but the fine balance between the three wings of the government has to be ensured. Judicial activism should be for the greater good of democracy and not lead to a replacement for it.
