Courts across constitutional democracies now decide questions that legislatures once decided: where a slum may stand, how a river must be cleaned, whether a marriage is valid, how election funding must work. The increasing power of the judiciary is not an Indian peculiarity. It is a global structural shift, and India has one of its most developed versions.
The question worth asking is not whether this is good or bad. It is what produced it, and what constrains it.
Six Structural Causes
Judicial review and constitutional interpretation. Pioneered by Marbury v. Madison in 1803, which gave courts power to invalidate legislation violating the constitution. India built a three-tier architecture on Articles 13, 32 and 226. Interpretation is itself power: whoever decides what a provision means decides the policy.
Expansive rights interpretation. Article 21 in India moved from mere physical existence to privacy in Puttaswamy 2017, livelihood in Olga Tellis 1985, and health, shelter and climate in MK Ranjitsinh 2024. The United States’ Fourteenth Amendment expanded to cover LGBTQ+ rights in Obergefell 2015.
Globalisation and international law. International norms and treaties increasingly shape domestic judicial reasoning, and judges exchange doctrine across borders. India’s Supreme Court cited the European Convention in Navtej Singh Johar 2018, and the proportionality doctrine was imported from German constitutional law.
Enforcement of socio-economic rights. South Africa’s Grootboom 2000 made housing enforceable. Colombia’s T-025 of 2004 declared a humanitarian crisis and ordered a systemic government response. India’s PUCL v. Union of India in 2001 made the right to food enforceable through Article 21.
Public trust deficit in other branches. Where legislatures are gridlocked and executives face corruption allegations, courts become the default resolver. India’s PIL boom filled a governance vacuum: Vishaka guidelines in 1997, bonded labour cases, electoral reform, and the ADR judgment of 2024 filling a legislative void on campaign finance.
Post-authoritarian constitutional design. Post-war Germany, post-apartheid South Africa and post-Emergency India deliberately strengthened judicial independence as a check on majoritarian abuse. Germany’s Federal Constitutional Court was designed to prevent parliamentary tyranny; India’s Basic Structure doctrine in Kesavananda 1973 was a direct response to Emergency-era excess.
What Makes India Distinctive
Three features have no close equivalent elsewhere.
Public interest litigation democratised access, allowing the poor, prisoners, environmental causes and marginalised groups to reach the Supreme Court directly.
The Basic Structure doctrine permits judicial review of constitutional amendments themselves. Almost no other system allows a court to strike down a validly passed amendment.
Article 142, the complete justice power, is the broadest judicial power in any constitutional system, used to order investigations, resolve deadlocks and, on occasion, seat governments.
Add the collegium, under which the judiciary controls its own appointments, and which struck down Parliament’s attempt at reform through the NJAC in 2015.
The Case For
- Judiciary as constitutional guardian, preventing legislative tyranny and executive overreach
- Checks and balances made operational through S.R. Bommai on federalism, NJAC on judicial independence and ADR on electoral democracy
- Rights protected against majoritarian excess, as in Navtej Singh Johar decriminalising homosexuality where the legislature would not act
- Governance vacuums filled, with Vishaka guidelines serving as law until the POSH Act of 2013 and DK Basu setting arrest safeguards in 1997
The Case Against
- Judicial overreach into policy decisions on resource allocation and environmental regulation that elected branches are better placed to make
- Article 142’s absence of limits, bounded by nothing beyond judicial conscience
- Collegium self-entrenchment, with the judiciary protecting its own appointment power in a circular institutional interest
- Judicial majoritarianism, since Kesavananda itself was decided 7 to 6, meaning a single judge’s view of the basic structure prevailed over Parliament
The Counter-Majoritarian Difficulty
This is the core tension, and it deserves to be stated without softening. The judiciary expands in order to check the other organs. But who checks the judiciary?
Unelected judges overriding elected legislatures raises a democratic legitimacy question that no amount of good outcomes settles. Ran Hirschl’s term for the resulting condition is juristocracy.
Dobbs v. Jackson in 2022 is the instructive case here, because it shows a court retracting rights it had previously created. A judiciary powerful enough to expand rights against a legislature is powerful enough to contract them against one too. Those who welcome judicial power when it delivers preferred outcomes rarely think through the symmetry.
The Honest Position
Judicial expansion in India has been mostly beneficial and structurally unaccountable, and both halves of that sentence matter. The court filled vacuums that elected institutions left, and it did so without a mechanism to correct itself when it errs.
The answer is not to weaken judicial review. It is to reduce the vacuum that draws courts in, and to define the outer limits of powers such as Article 142 that currently have none.
The Way Forward
- Legislate in the spaces courts have filled, since a functioning legislature is the best constraint on judicial policy-making.
- Define the contours of Article 142 through a full-bench self-limiting judgment, if not by amendment.
- Reform judicial appointments with a mechanism that is neither executive-controlled nor purely self-selecting.
- Publish and enforce timelines for constitutional bench cases, since delay is itself a form of judicial policy.
- Strengthen tribunals and lower courts, because much of the Supreme Court’s expansion reflects failures below it.
Frequently Asked Questions
Why is judicial power expanding globally?
Six structural factors: the spread of judicial review and constitutional interpretation, expansive interpretation of rights, globalisation and the influence of international law, enforcement of socio-economic rights, public trust deficits in legislatures and executives, and post-authoritarian constitutional designs that deliberately strengthened courts.
What is the significance of Marbury v. Madison?
The 1803 United States decision established judicial review, giving courts the power to invalidate legislation that violates the constitution. It is the origin point of the modern judicial power that most constitutional democracies now take for granted.
How has Article 21 expanded in India?
From mere physical existence to include privacy in Puttaswamy 2017, livelihood in Olga Tellis 1985, and health, shelter and climate considerations in MK Ranjitsinh 2024. India’s three-tier judicial review architecture rests on Articles 13, 32 and 226.
How do courts enforce socio-economic rights?
By treating them as justiciable rather than aspirational. South Africa’s Grootboom judgment of 2000 made the right to housing enforceable. Colombia’s T-025 of 2004 declared a humanitarian crisis and ordered a systematic government response. In India, PUCL v. Union of India in 2001 made the right to food enforceable through Article 21.
What makes India’s judiciary distinctive?
Three features. Public interest litigation, which democratised access to the courts. The Basic Structure doctrine from Kesavananda Bharati in 1973, which allows judicial review of constitutional amendments and is close to unique globally. And Article 142’s complete justice power, which is the broadest such power in any constitutional system.
What is the counter-majoritarian difficulty?
The democratic legitimacy problem created when unelected judges override elected legislatures. Ran Hirschl described the resulting condition as juristocracy: government by judiciary rather than by representative institutions.
What are the main criticisms of expanding judicial power?
Judicial overreach into policy decisions such as resource allocation and environmental regulation that are better made by elected branches; Article 142’s absence of defined limits; collegium self-entrenchment, illustrated by the striking down of the NJAC; and judicial majoritarianism, since Kesavananda itself was decided 7 to 6.
Where has judicial power protected democracy?
Free and fair elections have been held part of the Basic Structure, electoral bonds were struck down in the ADR judgment of 2024, and the Speaker’s anti-defection decisions were made reviewable in Kihoto Hollohan. Vishaka guidelines functioned as law until the POSH Act of 2013, and DK Basu laid down arrest safeguards in 1997.
Practice Questions
Prelims MCQs
- Judicial review was established in the United States by
(a) Brown v. Board of Education
(b) Marbury v. Madison
(c) Obergefell v. Hodges
(d) Dobbs v. Jackson
Answer: (b) Marbury v. Madison in 1803 established the power of courts to invalidate unconstitutional legislation. - The right to privacy was held a fundamental right in India in
(a) Olga Tellis 1985
(b) Vishaka 1997
(c) Puttaswamy 2017
(d) Navtej Singh Johar 2018
Answer: (c) Puttaswamy in 2017 recognised privacy as intrinsic to Article 21. - The Grootboom judgment, making the right to housing enforceable, was delivered in
(a) India
(b) South Africa
(c) Colombia
(d) Brazil
Answer: (b) Grootboom in 2000 is South Africa's landmark socio-economic rights enforcement decision. - The Basic Structure doctrine was laid down in
(a) Golaknath 1967
(b) Kesavananda Bharati 1973
(c) Minerva Mills 1980
(d) Indira Nehru Gandhi 1975
Answer: (b) Kesavananda Bharati in 1973 established that constitutional amendments cannot alter the basic structure, and was itself decided 7 to 6. - Ran Hirschl's term juristocracy refers to
(a) Rule by legal professionals in the bureaucracy
(b) Expansion of judicial power over decisions previously made by elected branches
(c) A system where judges are elected
(d) The dominance of international courts
Answer: (b) It names the transfer of policy-making authority from representative institutions to courts.
Mains Questions
- The expansion of judicial power is a global phenomenon with distinctively Indian features. Examine. (250 words)
- Judicial review protects rights against majoritarian excess but raises the counter-majoritarian difficulty. Critically evaluate. (250 words)
- Article 142 confers a power without defined limits. Discuss its use and the case for constraining it. (150 words)
- Public interest litigation democratised access to justice and expanded judicial policy-making. Assess both consequences. (250 words)
- Who checks the judiciary? Examine the adequacy of existing accountability mechanisms for the higher judiciary in India. (150 words)
Tell Google you want more of this.
Add Anantam IAS as a preferred sourceOne tap, and this site shows up more often in your own Top Stories, AI Overviews and AI Mode. Remove it any time.
