By Sanjay Raman Sinha
Was it a strange coincidence that around the same time, two senior-most judges of the Supreme Court voiced concern over judicial overreach by Indian courts? Chief Justice of India BR Gavai held that while judicial activism is here to stay, it must not cross the line into what he termed “judicial terrorism”. Speaking from a different platform, the senior-most judge of the Supreme Court, Justice Surya Kant, flagged courts stepping into the domain of the executive and legislature. “Courts must not supplant the role of legislature or override the will of the people. Instead, they must act as facilitators of democratic dialogue,” he said.
The concerns voiced by both the judges point to a simmering discomfort within the higher judiciary, as judicial activism increasingly faces accusations of morphing into judicial overreach—or even “judicial terrorism”—and attracts backlash from the government and elected representatives.
It was not long ago that Vice President Jagdeep Dhankhar strongly objected to a judicial order prescribing a three-month timeline for the president of India to decide on bills reserved by governors. Dhankhar warned that the judiciary must not act like a “super parliament” or encroach upon the executive’s domain.
Over the years, the Modi government has expressed repeated concern about breaches of the lakshman rekha, objecting to what it sees as judicial intransigence. This is where the battlelines between the two wings of the State—judiciary and executive—have been etched, with salvos fired from both sides.
While adjudicating cases of governance and policy, courts often find themselves compelled to pass orders correcting policy wrongs or addressing governmental inaction. As sentinels of the Constitution and protectors of fundamental rights, courts are constitutionally empowered to remedy wrongs that infringe upon social welfare or individual liberty.
Articles 226, 32 and 142 of the Constitution authorize courts to issue writs, enforce fundamental rights and ensure complete justice. Since these rights are designed to protect individuals from the overreach of the State, it is incumbent upon the judiciary to step in—even if that means treading into executive or legislative terrain.
If the sedition law under Section 124A of the IPC was effectively frozen, it was because the court found that executive enforcement infringed on personal liberties. In 2012, when the Supreme Court cancelled 122 telecom licenses in the 2G spectrum case, the government responded with a presidential reference under Article 143—a reflection of executive unease at judicial interference in policy.
Public Interest Litigations (PILs), too, have brought policy failures to the courts’ doorstep, and several landmark decisions affecting government policy have emanated from PILs. However, the roots of the current government’s distaste for judicial assertiveness can be traced to the Supreme Court’s striking down of the National Judicial Appointments Commission (NJAC). Although passed unanimously by both houses of parliament, the NJAC was declared unconstitutional by a Constitution bench—an act that remains a sore point for the executive.
But executive backlash against the judiciary is not new. It dates back to the Kesavananda Bharati verdict, which established the Basic Structure Doctrine and triggered legislative pushback from the then-Congress government. The defining moment came during the Emergency, when Justice HR Khanna dissented in the ADM Jabalpur case, famously asserting that no law could authorize the suspension of fundamental liberties.
Today, as government pressure on the judiciary increases, the courts appear to be regrouping to define the outer limits of judicial intervention in executive affairs. The phrase “judicial terrorism,” though provocative, seems to refer to what may otherwise be well-calibrated judicial action. It also signals a collective introspection on the part of the judiciary—a desire to balance democratic accountability with judicial responsibility.
A democratically elected government is presumed to represent the will of the people, and its policies are presumed to further public good. A measured approach and a respect for the principle of separation of powers could strengthen judicial wisdom and prevent unnecessary incursions.
It was in this context that the late Finance Minister Arun Jaitley once warned that unchecked judicial activism risked creating a “tyranny of the unelected”. Legal scholars like Professor Upendra Baxi have also drawn a crucial distinction between judicial remedies for constitutional wrongs—which are essential—and judicial policymaking, which risks judicial supremacy.
The recent voices from the top echelons of the judiciary are, then, not a retreat from activism, but a call to tread the golden mean—to introspect, remain constitutionally rooted, and honour the sanctity of the separation of powers.
CASES THAT SPARKED THE OVERREACH DEBATE
- Shyam Narayan Chouksey vs Union of India (2016)
The Supreme Court directed national anthem to be played in cinema halls. The order later diluted after concerns over intrusion into private life and cultural space.
- Liquor ban on national highways (2017)
The Court banned liquor sales within 500 metres of highways, affecting state revenue and businesses. The order was later relaxed.
- BCCI reforms (2016)
Based on Lodha Committee recommendations, the Court restructured BCCI, leading to accusations of judicial governance over a private entity.
- Film censorship—Jolly LLB 2 case
The Bombay High Court ordered cuts to the film after CBFC clearance, prompting claims of judicial censorship.
- Sabarimala verdict (2018)
The Supreme Court allowed women of all ages entry to Sabarimala Temple. Decision sparked cultural backlash, revealing tensions between equality and religious freedoms.