Separation of Powers and Judicial Activism in India

By Aishwarya Talwar, Amity University 

Editor’s Note: The Indian judiciary had gone through several phased changes since its inception. From the positivist era to the golden era of judicial activism the disposition of the jusiciary towards the government can be carefully graphed by means of caselaw and its analysis. This paper attempts to undertake the task of explaining the main cruxes of judicial activism, creativity and the doctrine of separation of powers by analysing caselaws.


The edifice of any democratic government rests on three pillars – the executive, the legislature and the judiciary. These three pillars constitute the three organs of the government machinery. The powers and functions of these organs are defined in the constitution of India (Constitution) that constitutes the supreme law of a democratic government. Under the Constitution, the primary function of the legislature is to make law, that of the executive is to execute law and that of the judiciary is to enforce the law. In the enforcement of law, the constitution assigns three roles to the highest judiciary –

(1) Firstly, as an interpreter of the constitution to solve any ambiguity in the language of any provision of the constitution;

(2) Secondly, as the protector of fundamental rights which are guaranteed by the constitution to its people; and

(3) Thirdly, to resolve the disputes which have come by way of appeals from the lower judiciary.

Under a federal constitution the judiciary also decides the disputes arising between the federal authorities and the state authorities.   In playing its assigned roles, the judiciary reviews the actions of the other two organs – the legislature and the executive as to whether they have exceeded the limits set by the constitution or whether they have encroached the rights of the people through arbitrary laws and arbitrary actions. This is where judicial activism comes into play. Through judicial activism the judiciary plays an activist role in performing the tasks assigned to it by the constitution.[i]

The main aim of this project is to understand:

1) The doctrine of separation of power and the extent to which power is given to the judiciary under the doctrine.

2) The concept of judicial review, its evolution and Importance

3) Judicial activism in India.



Judicial Review concept, which evolved in Marbury v. Madison, is armor to check-to-check lawlessness – legislative as well as executive with a review to serve “legitimacy of power “and administrative efficiency.[ii] Judicial review is the power by which judiciary aims at activising herself in retaining her domain of judicial activity over the state inactivity. This judicial activism is a multifortiori as it makes action popularize not only popular through strategies of PIL vide pro bono public, but a rule of life for the lowly and lost, little man, deprived, underprivileged, destitute[iii]

Judicial Review In India

As in India so far as the fundamental rights are concern Judicial review is provided explicitly under Article 13 of Indian constitution and for the rest of the constitutional provisions judicial review is implicit under the writ jurisdiction of the Supreme Court and the high courts given under article 32 and 226 respectively. Further judicial review is also traceable in the “Doctrine of limited government”.

And the classic examples of above are given in the case Keshvananda Bharti v. state of Kerala [iv] in which the Supreme Court passed orders under article 13 of Constitution and the Bhagalpur Blinding case of 1979-80, in which the supreme court ordered under Article 32 of      Constitution of India.


In post-independence India, the inclusion of explicit provisions for ‘judicial review’ were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the ‘heart of the Constitution’. Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has evolved on the lines of common law doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions. In most cases, the power of judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th Schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.

Hence the scope of judicial review before Indian courts has evolved in three dimensions –

1) Firstly, to ensure fairness in administrative action

2) Secondly, to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights.

This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law:-

1) habeas corpus (to direct the release of a person detained unlawfully),

2) mandamus (to direct a public authority to do its duty),

3) quo warranto (to direct a person to vacate an office assumed wrongfully),

4) prohibition (to prohibit a lower court from proceeding on a case) and

5) certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).

Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts.

Judicial review has held in legitimizing of the government’s action protecting the fundamental rights and helping the judiciary against any undue encroachment of the executive and the legislature over its powers. It has also helped in maintaining the supremacy of the constitution, the division of powers, the separation of powers and the rule of law etc. Because of its importance the Supreme Court ruled in Keshvananda Bharti case 1973 that judicial review is the part of the basic structure of the constitution.

However while applying judicial review the judiciary shall follow the following condition

  1. If two interpretations are possible for a given law where the first interpretation leads to validation of the law and the second leads to its invalidation then the court hall give preference to the first interpretation in preference to the second.
  2. Ordinarily the courts shall not pronounce one the validity before the law is brought under legal enforceability.
  3. Ordinarily the courts shall not pronounce under validity of the law suo –muto, but only on the petition or a reference made to the judiciary.

Now these are the ideal conditions of judicial review and when these conditions are surpassed that amounts to judicial overreach which is a very dangerous phenomenon. And this had happened many times in Indian political history.[v]


The Doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judiciary. The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the

Government into three categories viz., deliberative, magisterial and judicial Locks categorized the powers of the Government into three parts namely: continuous executive power, discontinuous legislative power and federative power. “Continuous executive power” implies the executive and the judicial power, and “discontinuous legislative power” implies the rule making power, while “federative power‟ signifies the power regulating the foreign affairs.

The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of separation of powers. That is why he is known as modern exponent of this theory. Montesquieu’s doctrine, in essence, signifies the fact that one person or body of persons should not exercise all the three powers of the Government viz. legislative, executive and judiciary. In other words each organ should restrict itself to its own sphere and restrain from transgressing the province of the other.

Montesquieu explained the doctrine in its own word they are:

“When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers…”

Importance of The Doctrine Of Separation Of Powers

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of law rather than having whims of the official. Also another most important feature of the above said doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale through which one can measure the actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary.

Doctrine of Separation of Power in India

The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the function of another.

In Indian Constitution there is express provision that “Executive power of the Union shall be vested in the President and the executive power of the State shall be vested in Governor..” (Article 154(1) of Indian Constitution). But there is no express provision that legislative and judicial powers shall be vested in any person or organ.

President being the executive head is also empowered to exercise legislative powers. In his legislative capacity he may promulgate Ordinances in order to meet the situation as Article 123(1) says “If at any time, except when both Houses of Parliament are in Session, President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require”.

When Proclamation of emergency has been declared by the President due to failure of Constitutional machinery the President has been given legislative power under Article 357 of our Constitution to make any Law in order to meet the situations. A power has also been conferred on the President of India under Article 372 and 372-A to adapt any Law in country by making such adaptations and modifications, whether by way of repeal or amendment as may be necessary or expedient for the purpose or bringing the provisions of such Law into accord with the provisions of the Constitution.

The President of India also exercises judicial function. Article 103(1) of the Constitution is notable in this connection. According to this Article “If any question arises as to whether a member or either of House of Parliament has become subject to disqualification mentioned in clause (1) of Article 102, the questions hall be referred for the decision of the President and his decision shall be final”. Article 50 lays emphasis to separate judiciary from executive. But in practice we find that the executive also exercises the powers of judiciary as in appointment of judges. (Articles 124, 126 & Article 127). The legislative (either House of Parliament) also exercises Judicial function in removal of President (Article 56) in the prescribed manner. Judiciary also exercises legislative power, High Court and Supreme Court are empowered to make certain rules legislative in character. Whenever High Court or the Supreme Court finds a certain provision of law against the Constitution or public policy it declares the same null and void, and then amendments may be incorporated in the Legal System. Some time High Court and Supreme Court formulate the principles on the point where law is silent. This power is also legislative in character.

The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v. State of Punjab.[vi] The court in the above case was of the opinion that the Doctrine of separation of power was not fully accepted in India.

Later in I.C. Golak Nath v. State of Punjab,[vii] Subha Rao, C.J opined that

“The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function with the spheres allotted to them.”[viii]

In Keshvananda Bharti v Union of India[ix] the court was of the view that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional.[x]


As clearly mentioned about the separation of power there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades.

Henceforth, it can be said that the rule of separation of power in today’s scenario cannot be worked out in a proper way. There is a need for a new and better doctrine which serves the purpose of the present democratic need, whether it is a parliamentary or presidential type of government. If we take the background of the major countries like U.S.A, U.K, India, Russia, France, Germany, Spain and U.A.E, it can be seen it there is no complete separation of power that Montesquieu had advocated. All the organs of the Government are subject to each other’s scrutiny by way of checks and balance. Thus, it can be better said that all the organs of the government should behave in a way that they do not violate the principal law or the rule of law of the country and it should be upheld in all circumstances for the better  protection of the rights, liberties and freedoms of the people of that state. So, each organ are impliedly required to restraint their powers to the sphere which has been provided or set forth in the Constitution and to undertake steps that serves the purpose for which it is there. Any act, inaction or abuse of such powers by one organ calls for interference of the other organ. Reference can here be made of Nuremberg trial, where in the Court has held that the judges are not to act upon the laws which are against the humanity or based on unreasonable classification or are arbitrary in nature or are against the moral principles; even if such laws are passed by the parliament. They are to restraint themselves from participating in it and serve the purpose of the nation by bringing in modification or interpretations to the laws. Similarly, Parliament is to observe that the laws made by it are not against the rule of law, or against the Constitution or against the public morale and humanity. It should also from time to time keep an eye on the social changes and scientific advancement so that the laws meet the demands of the time and must not involve in colorable legislation. The Executive should also refrain from executing the laws which are against natural justice or which is in violation of the rights, liberties and freedoms of common man or is against the state or constitution in particular. This is the doctrine of Self Restraint, whereby, all the organs try to fulfill the aspirations of the nation and uphold the rule of law, without interfering into the domain of the other. The Constitution must in all circumstances be considered supreme, and the laws made by the legislature should pass the test of reasonableness and the objectives of the Constitution.[xi]

Separation of power is the essential feature of the Democratic Republic established under our Constitution by division of powers between the three important wings of the State: The Parliament and State Legislatures, the Executive and the Judiciary. However there is absence of specific provisions in the Constitution exclusively vesting legislative powers in the legislature and judicial powers in the judiciary was noticed in Delhi Laws in 1951, but the essence of doctrine of separation of powers and of constitutional limitation was accepted as a feature of basic structure of the Constitution in Indira Gandhi vs. Raj Narain.[xii] Judicial review and activism functions of the judiciary is an important element of our system of justice to keep a check on the legislature who are the law makers of the land, so that they do not exceed their powers and work within the allowances that the constitution has made for them. the separation of the judiciary from the other organs though is taken very seriously so that the common man’s liberty can in no circumstances be compromised and a fair remedy is available to any individual citizen of the state. Thus the Indian Constitution, which is an extremely carefully planned document designed to uphold the integrity and liberty of every citizen, has not in its entirety embraced the doctrine of separation of powers but has indeed drawn a lot from the concept and kept it as a guiding principle. But the doctrine of Separation of Powers has been included in our basic structure doctrine as has been ruled and upheld by the Supreme Court in a number of cases. Thus it holds a position of utmost importance, albeit has been modified to suit the needs of a modern all pervasive state.[xiii]



According to Black’s Law Dictionary judicial activism is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” Judicial activism is articulated and enforced by judicial rulings suspected of being based on personal or political considerations rather than on existing law. Judicial activism implies going beyond the normal constraints applied to jurists and the Constitution, which gives jurists the right to strike down any legislation or rule against the precedent if it goes against the Constitution. Judicial activism is premised upon the fact that judges assume a role as independent policy makers or independent “trustees” on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws[xiv]


The origin of judicial activism through judicial review can be traced back under the unwritten Constitution of Britain during the Stuart period of (1603-1688). Sometime, in the year 1610, the power of judicial review was asserted for the first time in Britain through the activism of Justice Coke. Evolving the principles of judicial review, Chief Justice Coke declared that if a law made by the Parliament violated the principles of ‘common law’ and `reason’ then the courts might review and adjudge it as void. Coke’s theory of judicial review was repeated by Sir Henry Hobart in 1615 and again in 1702 by Sir John Holt. The British chief justices asserted the power of the judiciary to review acts of the British Parliament under ‘reason’ and ‘common law’. “Though Coke’s words were repeated”, John Agresto finds that “except for Dr. Bonham’s case instances of actual nullification of parliamentary laws by British courts cannot be cited.” Since then, however, judicial review did not get a upper hand as it was over-shadowed by the evolution of parliamentary sovereignty in Britain.[xv]

Judicial Activism in India

Judicial activism in India means the power of the Supreme Court and the high courts but not the sub-ordinate courts to declare the laws as unconstitutional and void if it infringes or if the law is inconsistent with one or more provisions of the constitution. To the extent of such inconsistency while declaring a law as constitutional and void the courts do not suggest any alternative measures. According to SP Sathe “a court giving a new meaning to the provision so as to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.”[xvi]

Evolution of Judicial Activism in India

Supreme Court of India started off as a technocratic court in the I950s but slowly started acquiring more power through constitutional interpretation. Its transformation into an activist court has been gradual and imperceptible. In fact the roots of judicial activism are to be seen in the court’s early assertion regarding the nature of judicial review.

In India Judicial activism can be positive as well as negative.

1) A court engaged in altering the power relations to make them more equitable is said to be positively activist and

2) a court using its ingenuity to maintain the status quo in power relations is said to be negatively activist’ .I believe this is an elaboration of Cardozo’s oft quoted dictum regarding ‘felt necessities of the times’. It is clear that the authors in favor of the positively activist court.[xvii]

Landmark Judgments

a) AK Gopalan v. State of Madras[xviii]:

Significant decision was observed because it represented the first case where the court meaningfully examined and interpreted key fundamental rights enlisted in the constitution including article 19 and 21.[vii] A writ of habeas corpus was filed. The contention was whether under this writ and the provisions of THE PREVENTIVE DETENTION ACT, 1950, there was a violation of his fundamental rights which were article 13, 19, 21 and 22. The counsel on behalf of the petitioner argued that the right to movement was a fundamental right under article 19 and hence the defense counsel must prove that the law of preventive detention was a reasonable restriction as per the five clauses of article 19(2).

Judge restricted the scope of fundamental rights and by reading them in isolation of article 21 and 22 which provided guidelines for preventive detention. Foreign precedent like cases of UK and US were used in limiting the scope of article 21. Justice Kania said that the term due process prevented the courts from engaging in substantive due process analysis in determining the reasonableness of the level of process provided by the legislature. He remarked:-

The word “due” in the expression “due process of law” in the American Constitution is interpreted to mean “just,” according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is “due” from otherwise, according to law. The deliberate omission of the word “due” from article 21 lends strength to the contention that the justifiable aspect of “law”, i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word “due”, the limitation imposed by the word “procedure” and the insertion of the word “established” thus brings out more clearly the idea of legislative prescription in the expression used in article 21. By adopting the phrase “procedure established by law” the Constitution gave the legislature the final word to determine the law.[xix]

Fazl Ali’s dissent broadly construed the provision “procedure established by law” in Article 21 to encompass higher principles of natural law and justice, and not just statutory law. he said that the Indian Constitution intended to incorporate the same language as the Japanese Constitution and encompass “procedural due process” conception, he still cited to American , British and foreign precedent to support a much more expanded view of due process. They were based on the principles of Natural Justice. Fazal Ali highlighted a series of US decisions; the US Supreme Court recognized that the word law does not exclude certain fundamental provisions. Drawing on British and US legal sources he argued for incorporating procedural due process into article 21, guided by principles of Natural Justice in accordance with universal, transactional and legal norms.

In the above case two major points were held: Art 19, 21 and 22 are mutually exclusive. Art 19 was to not apply to a law affecting personal liberty to which art 21 applies. In the above case, the restrictions under article 19 applied only on free people. Unless the state arrested a person for making a speech, holding an assembly, forming an association or for entering a territory, the arrest had to be EXAMINED under article 21. A “LAW” affecting life and liberty could not be declared unconstitutional merely because it lacked natural justice or due procedure. Hence article 21 provided no immunity against competent legislative action.

b) Kharak Singh v. State of Uttar Pradesh[xx]:

 the petition under Article 32 of the Constitution of India challenged the constitutional validity of Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon police officials by its provisions on the ground that they violate the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution of India. On the basis of the accusations made against him, he had police constables entering his house and shout at his door, waking him up in the process. On a number of occasions they had compelled him to accompany them to the station and had also put restrictions on him leaving the town.

The judges made a breakthrough while interpreting and finding the connection between article 19 and 21 by remarking that:

  • If a person’s fundamental right under Article 21 is infringed the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this petition no such defence is available, as admittedly there is no such law.
  • So the petitioner Kharak Singh could legitimately plead that his fundamental rights, both under Articles 19(1)(d) and 21, were infringed by the State. Hence, on these grounds the petitioner Kharak Singh was entitled to issue of a writ of mandamus directing the respondent- State of Uttar Pradesh- not to continue visit to his house.

Here, the majority adopted a restrictive conception of liberty that only extended to direct infringement of the freedom of movement, and refused to recognize the existence of a right to privacy. However this theory which was the minority judgement of J Subba Rao went on to become the majority judgement in

c) Satwant Singh Sawhney v. Union of India:[xxi]

Satwant Singh the petitioner was a manufacturer; importer and exporter who were asked to surrender the passport on the ground that he was likely to leave India to avoid a trial. For the first time, the Court was able to author a majority decision and binding precedent in the area of personal liberty that built and relied on foreign precedents dealing with substantive due process. Moreover, Chief Justice Subba Rao used combination of American precedents, along with the opinions in Kharak Singh, to rule that the term “personal liberty” is as broad in India as the term “liberty” is in the 5th Amendment of the U.S. Constitution. The court recognized that right to life and liberty could be taken away by a “procedure established by law”. However it cancelled the government’s order to the petitioner to surrender his passports. Its judgement was found on the limited ground of the failure to provide for any procedure regulating the denial/surrender of passports under the Indian Passports Act, 1920. The court’s objection was based on the absence of a procedure rather than the merits of the existing system. [x] Soon after the Satwant Singh Judgement, the parliament enacted the Passport Act, 1967 to regulate how passports would be issued, revoked, impounded or revoked- matters on which legislation did not exist earlier.

India’s democratic structure following the Emergency was shaken to the core as it had severely impinged on a person’s fundamental rights. The citizens were resentful and there was severe dishonesty on the part of the government along with the crippled nature of the highest court in land.

d) Maneka Gandhi v Union of India[xxii]:

In this case the Supreme Court restored the citizen’s faith in judiciary. The 3 landmark judgements were depicting a great change in the thought process of the judiciary and had set the stage for Judicial Activism to be introduced.

The Supreme Court not only broadened the meaning of “personal liberty” but also adopted the theory of “due process” in “procedure established by law”. The court recognized that when a law restricts personal liberty, a court should examine whether the restriction on personal liberty also imposed restrictions on any of the rights given by article 19. The Court held that personal liberty includes “a variety of rights which go to constitute the personal liberty of man,” in addition to those mentioned in Article 19, and that one such right included in “personal liberty” is the right to go abroad. The court also held that according to the “audi alteram partem” theory, impounding Mrs. Gandhi’s passport without giving her a hearing violated procedure established by law. These were principles of natural justice and fair procedure. The court had to decide whether Mrs. Gandhi was entitled to a hearing before her passport was impounded. It was resolved that as there was no post decisional hearing, the impounding was UNCONSTITUTIONAL AND VOID.

Amongst the fundamental rights, article 14, 19 and 21 of the constitution- composing the “golden triangle” have been invoked most often to declare legislation or arbitrary state action invalid. In this particular case, there was conflict whether the right to travel abroad formed a right to personal liberty under article 21. The Supreme Court departed from the stereotyped notion and held that fundamental rights form an integrated scheme under the constitution. Emphasizing the need to read Part III of the Constitution in a holistic manner, the SC said that the mere fact that a law satisfied the requirements of one fundamental right did not exempt it from the operation of other fundamental rights. The majority of the seven judge bench stated that any procedure established by law under article 21 would have to be “fair, just and reasonable” and it differed from the Satwant Singh case by establishing that even in presence of a law, an arbitrary law will not be considered. The Supreme Court after this judgement became the watchdog of the constitution instead of supervisors.

Judicial creativity

Expansion Of Right To Life By Means Of Judicial Activism

The above topic was an exhaustive evaluation of judges and their path breaking performance with regard to changing the dynamics of article 21. American Constitution’s concept of Due process was finally embodied in the words “procedure established by law”. The current topic will deal with the expansion of the provision due to the revolution created by the MANEKA GANDHI JUDGEMENT. The concept of PIL[xiv] started taking shape, which was pioneered by the great Justice P.N Bhagwati who took cognizance of the fact that in certain circumstances,  A PIL may be introduced in a court of law by the court itself (suo moto), rather than the aggrieved party or another third party. Post Maneka Gandhi’s case, the Supreme Court ascertained that,

“In order to treat a right as a fundamental right, it is not necessary that it should be expressly stated in the constitution as fundamental right. Political, social and economical changes in the country entail the recognition of new rights. The law grows to meet the demands of the ever evolving society”

Hence the Supreme Court has found Article 21 to incorporate the substantive freedom that serves as means to remove major areas such as poverty, poor economic opportunities as well as systematic social deprivation. A most significant feature of expansion of article 21 has been that many of the Non-justifiable Directive Principles have been converted into ENFORCEABLE FUNDAMENTAL RIGHTS by the hands of judges. Guarantees of economic opportunities and protection against social deprivations were established in various decisions:

  1. Quality of life
  2. Right to Livelihood
  3. Right to medical care
  4. Right to Die
  5. Sexual Harassment
  6. Ecology and Environment
  7. Right to Privacy

Right to Privacy

The constitution does not grant in specific and express terms any right to privacy as such Right to Privacy is not encumbered as a Fundamental Right in the Constitution. However, such a right has been culled by the Supreme Court from Art 21 and several other provisions of the Constitution read with the Directive Principles of State Policy.

As mentioned above, the Kharak Singh was the first of its own kind, to inaugurate the idea of “privacy” where issues were raised regarding implying the right to privacy from existing fundamental rights such as Article 19(1)(d) and 19(1)(e) and 21. During that time, J Subba Rao had commented

“The right to personal liberty takes in not only a right to be free from restrictions but also free from encroachments on his private life” 

In 1965, the Supreme Court of India heard and decided State of Uttar Pradesh v. Kaushaliyaa case which involved the question of whether women who are engaged in prostitution can be forcibly removed from their residences and places of occupation, or whether they were entitled, along with other citizens of India, to the fundamental right to move freely throughout the territory of India, and to reside and settle in any part of the territory of India.

In its decision, the Supreme Court denied them this right holding that “the activities of a prostitute in a particular area are so subversive of public morals and so destructive of public health that it is necessary in public interest to deport her from that place. The statutory restrictions imposed by the Suppression of Immoral Traffic Act on prostitutes, were upheld by the Court as constitutionally-permissible “reasonable restrictions” on their movements.

In 1972, the Supreme Court decided a case – one of the first of its kind – on wiretapping.[xxiii]

In R. M. Malkani v. State Of Maharashtra[xxiv] the petitioner’s voice had been recorded in the course of a telephonic conversation where he was attempting blackmail. He asserted in his defence that his right to privacy under Article 21 had been violated. The Supreme Court declined his plea holding that “The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. The case had fallen in the PRE MANEKA era.

In Govind vs. State of Madhya Pradesh[xxv], decided by a three-Judge Bench of the Supreme Court is regarded as being a setback to the right to privacy Jurisprudence where the judges established that surveillance is not an unreasonable restriction upon right to privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.

An interesting angle was brought about in the famous NAZ FOUNDATION CASE[xxvi]. The petitioners argued ‘to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21 [which] can be abridged only for a compelling state interest which, in its submission, is amiss here’

The Court then disposed of claims that this invasion of privacy was justified within the exception to Article 21.

“While it could be “a compelling state interest” to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.

However this case suffered a huge setback when Supreme Court overturned the ruling of the Delhi High Court condemning homosexuality by holding Section 377 of the Indian Penal Code valid and demanding the legislature to take appropriate action pertaining to the abolishment of this particular provision. Right to privacy has been hence denied to anyone who commits the offence under Section 377.

A similar concept of ‘public interest’ would seem to apply when private companies disclose personal information without a person’s consent. Without delving into the issue in too much detail, it would suffice here to mention one of the most important cases to have come up on the issue. In Mr. X v. Hospital Z, a person sued a hospital for having disclosed his HIV status to his fiancé without his knowledge resulting in their wedding being called off. The Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to protect the public interest.

The Times of India reported that the law ministry is working on a proposal to make right to privacy a fundamental right in the Indian Constitution. The right to privacy would include the right to confidentiality of communication, confidentiality of private or family life, protection of his honour and good name, protection from search, detention or exposure of lawful communication between individuals, privacy from surveillance, confidentiality of banking, financial, medical and legal information, protection from identity theft of various kinds protection of use of a person’s photographs, fingerprints, DNA samples and other samples taken at police stations and other places and protection of data relating to individual.[xxvii]


Judicial activism connotes the assertive role played by the judiciary to forced the other organs of government to discharged their assigned constitutional functions towards the people. It has held reinforcing the strength of democracy and reaffirms the faith of people in rule of law. Judicial activism may have been force upon the judiciary by an insensitive and unresponsive administration that disregards   the interest of the people and that the nation does not suffer because of the negligence on the part of the executive and legislature.[xxviii]

Former Justice S. H. Kapadia said Parliament and executive had well-defined powers under the Constitution and these needed to be respected by the judiciary. “Legality and legitimacy are important concepts and go hand in hand. If there is excess of judicial overreach, then the legitimacy of judgments will be obliterated,” he warned.[xxix]

However judicial activism may be a welcome measure on in a short run where it helps in maintaining the rule of law and allows one organ to sustain the administration of the country when other organs are not performing. If it is practiced for a long time it may dilute the theory of separation of power and the doctrine of checks and balances.

However at the end I would conclude by stating that judicial activism may be good for protecting the fundamental rights of the citizens and protecting their interest from the vicious bureaucrats and politicians but extreme activism will lead to overreach of judicial powers that may lead to a misuse of power by the judges leading to arbitrary decision making as well tyranny which may be against the rule of a democratic country and so to ensure that no arbitrariness takes place judicial review should be practices by the respected Judiciary within the purview of doctrine of separation of powers and checks and balances.

 Edited by Drishti Das


[ii] Judges and the Rule of Law: Creating the Links : Environment, Human Rights …

 edited by Thomas Greiber


[iv] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: (1973) 4 SCC 225)


[vi] AIR 1955 SC 549.

[vii] 1967 AIR 1643.

[viii] Ibid.

[ix] Supra Note 4.



[xii] 1975 AIR 865.

[xiii] Justice, Judocracy and Democracy in India: Boundaries and Breaches Hardcover – Import, by Sudhanshu Ranjan (Author), 25 Sep 2012



[xvi] Judicial Activism in India ,Satyaranjan Purushottam Sathe, Oxford University Press, 2002

[xvii] Satyaranjan Purushottam Sathe,Oxford University Press, 2002

[xviii] A.K.Gopalan VS. State Of Madras (air 1950 sc 27)

[xix] Indian Bureau of Parliamentary Studies,1971

[xx] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

[xxi] Satwant Singh Sawhney v Union of India

[xxii]Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621


[xxiv] R. M. Malkani vs State Of Maharashtra

[xxv] Govind vs. State of Madhya Pradesh. 1975) 2 SCC

[xxvi] Naaz foundation vs govt of NTC




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