Judicial transformation: from Gopalan to Maneka Gandhi
The Indian judiciary’s transformation into a truly rights-protective institution can be traced to the landmark judgment in Maneka Gandhi v. Union of India (AIR 1978 SC 597). Prior to this, in A.K. Gopalan v. State of Madras (1950), the Supreme Court had rejected the American style “due process” protection. Instead, it adopted the narrower “procedure established by law” standard under Article 21, meaning that personal liberty could be curtailed if there was a law in place, regardless of how unreasonable or unjust that law might be.
Judicial review at this stage was largely confined to examining whether a law was enacted following the correct procedure, not whether the law itself was substantively fair. This approach began to change with Kesavananda Bharati v. State of Kerala (1973), which introduced the Basic Structure Doctrine, limiting Parliament’s power to alter the Constitution’s core principles. But it was Maneka Gandhi (1978) that fundamentally widened the scope of Article 21 by reading it alongside Articles 14 and 19, and holding that any procedure established by law must be just, fair, and reasonable.
This interpretation effectively incorporated the due process requirement into Indian constitutional law. It empowered the Court to examine not only the procedural validity of laws but also their substantive reasonableness, thereby strengthening its role in maintaining the balance of power among the three organs of the state: Parliament, the Executive, and the Judiciary.
Judicial activism: purpose and examples
From this expansion of judicial review emerged the phenomenon of judicial activism. Judicial activism is not a separate constitutional power, it is a judicial approach that interprets the Constitution and laws in a purposive and expansive manner to protect rights, fill legal gaps, and ensure justice, even where the legislature or executive has not acted (art.142). This is distinct from overreach because activism is anchored in constitutional principles and is often a response to legislative or executive inaction.
Several landmark interventions illustrate this approach. In Vishaka v. State of Rajasthan (1997), the Supreme Court laid down guidelines against workplace sexual harassment in the absence of legislation, guidelines that later formed the basis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
In the Supreme Court Advocates on Record Association v. Union of India (2015), popularly known as the NJAC case, the Court struck down the constitutional amendment establishing the National Judicial Appointments Commission, citing the need to protect judicial independence, a core element of the basic structure. Similarly, in Shayara Bano v. Union of India (2017), the Court invalidated instant triple talaq to uphold gender justice and constitutional morality.
When activism becomes overreach
In its ideal form, judicial activism bridges the gap between constitutional ideals and legislative realities. It allows the Court to protect vulnerable sections of society, preserve democratic principles, and give life to rights that might otherwise remain merely theoretical. Yet, when the judiciary begins to extend its reach into areas squarely within the political domain, it risks stepping beyond interpretation into intervention.
This is where judicial activism morphs into judicial overreach; when the Court takes positions that neither enforce fundamental rights nor resolve legal disputes, but instead weigh in on the merits or morality of political speech, legislative debate, or executive policy. Such moments do not strengthen democracy, they unsettle the separation of powers the Court itself has long upheld.
A recent example makes this danger abundantly clear. The Supreme Court’s recent remarks on Rahul Gandhi’s comments about Chinese encroachment on Indian territory are yet another troubling instance of judicial overreach. Such interventions risk eroding the democratic foundation of free speech, a right our Constitution explicitly safeguards under Article 19.
Free speech, evidence, and public accountability
In any functioning democracy, the opposition and a free press act as the steel framework that sustains public accountability. The framers of the Constitution knew that without robust political criticism, democracy degenerates into a hollow ritual. This makes one ask, Do Indians still have the right to question their government without fear of being branded “anti-national”? If voicing dissent is treachery, then farmers who challenged the farm laws, students who questioned education policies, and even the Supreme Court when it struck down the NJAC Act in 2015, would all be guilty of betraying the nation.
Rahul Gandhi’s statements on Chinese occupation are far from unfounded. Multiple independent and official sources support his claims. Open-source satellite imagery has revealed fresh Chinese infrastructure and patrols along disputed stretches of the Line of Actual Control (LAC). Parliamentary records themselves note the loss of access to certain patrolling points in eastern Ladakh. Reports by respected journalists and testimonies from local residents confirm that areas in the Galwan and Depsang plains, once routinely patrolled by Indian forces, are now effectively inaccessible.
Defence analysts estimate that nearly 2,000 square kilometres of territory is no longer under India’s practical control. This mismatch between official claims and reality is not new. During the 1962 Sino-Indian War, the Nehru government initially downplayed Chinese advances before the scale of territorial loss became undeniable. In 1999, during the Kargil conflict, official briefings initially understated the extent of infiltration until independent reporting exposed the full scope. Even in domestic crises, such as the COVID-19 second wave, official figures were later found to be vastly lower than excess mortality estimates compiled by independent researchers.
Mr. Gandhi’s core assertion that China has altered the status quo to India’s disadvantage and that the government’s narrative does not fully reflect the situation on the ground aligns with verifiable evidence. For the judiciary to frame such criticism as potentially unpatriotic is to misunderstand its role entirely.
Role of the judiciary in protecting dissent
The Supreme Court’s constitutional duty is not to weigh in on the “morality” or “patriotism” of political speech, but to ensure that the rights of citizens to question, challenge, and even condemn their government remain protected. In a democracy, dissent is not sedition, it is the oxygen that keeps the system alive.
The journey from A.K. Gopalan to Maneka Gandhi showcased the judiciary’s capacity to breathe life into constitutional rights and stand as a bulwark against legislative or executive excess. Judicial activism, at its best, has been a force for social justice, gender equality, and the protection of fundamental freedoms.
Yet, this very strength becomes a liability when the Court crosses from interpreting the Constitution to inserting itself into the political arena. Judicial overreach does not merely upset the separation of powers; it corrodes the credibility of the institution itself. When the Court appears to arbitrate political speech or policy debate, it risks being seen not as an impartial guardian of rights, but as another player in the political contest. This perception undermines public trust, the most precious currency any judiciary can possess.
The health of our democracy depends on a vigilant but restrained judiciary, one that fearlessly defends rights yet resists the temptation to become an alternative political forum. The Constitution envisions a balance where Parliament legislates, the Executive governs, and the Judiciary interprets, not where each seeks to do the other’s job. To preserve this balance, the line between activism and overreach must remain bright, clear, and firmly respected.
Rahul Gandhi’s statements on Chinese occupation are far from unfounded. Multiple independent and official sources support his claims. Open-source satellite imagery has revealed fresh Chinese infrastructure and patrols along disputed stretches of the Line of Actual Control (LAC). Parliamentary records themselves note the loss of access to certain patrolling points in eastern Ladakh. Reports by respected journalists and testimonies from local residents confirm that areas in the Galwan and Depsang plains, once routinely patrolled by Indian forces, are now effectively inaccessible.
Defence analysts estimate that nearly 2,000 square kilometres of territory is no longer under India’s practical control. This mismatch between official claims and reality is not new. During the 1962 Sino-Indian War, the Nehru government initially downplayed Chinese advances before the scale of territorial loss became undeniable. In 1999, during the Kargil conflict, official briefings initially understated the extent of infiltration until independent reporting exposed the full scope. Even in domestic crises, such as the COVID-19 second wave, official figures were later found to be vastly lower than excess mortality estimates compiled by independent researchers.
Mr. Gandhi’s core assertion that China has altered the status quo to India’s disadvantage and that the government’s narrative does not fully reflect the situation on the ground aligns with verifiable evidence. For the judiciary to frame such criticism as potentially unpatriotic is to misunderstand its role entirely.
The Supreme Court’s constitutional duty is not to weigh in on the “morality” or “patriotism” of political speech, but to ensure that the rights of citizens to question, challenge, and even condemn their government remain protected. In a democracy, dissent is not sedition, it is the oxygen that keeps the system alive.
The journey from A.K. Gopalan to Maneka Gandhi showcased the judiciary’s capacity to breathe life into constitutional rights and stand as a bulwark against legislative or executive excess. Judicial activism, at its best, has been a force for social justice, gender equality, and the protection of fundamental freedoms. Yet, this very strength becomes a liability when the Court crosses from interpreting the Constitution to inserting itself into the political arena. Judicial overreach does not merely upset the separation of powers; it corrodes the credibility of the institution itself.
When the Court appears to arbitrate political speech or policy debate, it risks being seen not as an impartial guardian of rights, but as another player in the political contest. This perception undermines public trust, the most precious currency any judiciary can possess. The health of our democracy depends on a vigilant but restrained judiciary, one that fearlessly defends rights yet resists the temptation to become an alternative political forum. The Constitution envisions a balance where Parliament legislates, the Executive governs, and the Judiciary interprets, not where each seeks to do the other’s job. To preserve this balance, the line between activism and overreach must remain bright, clear, and firmly respected.
