Supreme Court of India (‘SC’) has evolved from its traditional role as an interpreter and guardian and has accepted its passive role in legislative architecture, filling legislative voids with its directions to fuel functioning of statutes. Bangalore Water-Supply & Sewerage Board v. R. Rajappa, AIR 1978 SC 548 pointed out, Judiciary can “step into shoes of Legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state”. Destruction of Public and Private Properties, In Re v. State of Andhra Pradesh, (2009) 5 SCC 212 reminded, it often became necessary for Court to issue guidelines “in absence of statutory framework”. Whether it was for a statute’s uncertain state or silence, SC has not shied away from the belief, if Lawmakers don’t act, Court will. Some instances follow.

Medha Kotwal Lele v. Union of India, 2012 SCC OnLine SC 893 identified, “Vishaka v. State of Rajasthan, (1997) 6 SCC 241 came on 13.8.1997. Yet, 15 years after guidelines were laid down by this Court… statutory law is not in place.” SC thought, “lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough”, and issued further directions. In same breath, Swaraj Abhiyan (II) v. Union of India, 2016 SCC OnLine SC 549 found it “inexplicable” that a mechanism for enforcing several provisions of National Food Security Act, 2013 had not been constituted. The implementation of statues - The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 – were similarly brought in question in National Campaign Committee for Central Legislation on Construction Labour (NCC-CL) v. Union of India, 2018 SCC OnLine SC 236; National Campaign on Dalit Human Rights v. Union of India, 2016 SCC OnLine SC 1488 and Balram Singh v. Union of India, 2023 SCC OnLine SC 1386 respectively.

This judicial assertiveness has manifested itself in diverse landscapes. Society for Enlightenment and Voluntary Action v. Union of India, 2024 INSC 790 observed “certain gaps” in The Prohibition of Child Marriage Act, 2006 and made suggestions for a scrutiny by Union. A.P Pollution Control Board v. Prof. M.V Nayudu (Retd.), (1999) 2 SCC 718 advised, Government of India should bring about appropriate amendments to ensure all Environmental Courts, Tribunals and Appellate Authorities have a High Court (‘HC’) Judge or a SC Judge - Sitting or Retired - and a Scientist or Group of Scientists so as to help fair adjudication of disputes relating to environment and pollution. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558  recommended Union of India to bring an amendment in The Hindu Marriage Act, 1955 to incorporate “irretrievable breakdown of marriage” as a ground for grant of divorce. Justice P.S. Narasimha has called for “performance audit of a statute” more than once. Justice Narasimha in Yash Developers v. Harihar Krupa Co-operative Housing Society Limited, 2024 SCC OnLine SC 1840, directed Chief Justice of Bombay HC to initiate suo motu proceedings for reviewing working of The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, and again in Rutu Mihir Panchal v. Union of India, 2025 SCC OnLine SC 974 directed Central Consumer Protection Council and Central Consumer Protection Authority to advise Government about measures as may be necessary for an effective working of The Consumer Protection Act, 2019.

SC Judges who acknowledge their legislative incompetence continue to indirectly enter legislative territory. For India, “separation of powers” though revered is often indistinguishable. The boundaries between judicial and legislative functions have blurred. SC has not been limited to pleas for effective implementation of statutes or amendments. Subrata Roy Sahara v. Union of India, 2014 SCC OnLine SC 425 asked Legislature to introduce a “Code of Compulsory Costs” to make those who “initiate and continue litigation senselessly” to pay for same. Satender Kumar Antil v. Central Bureau of Investigation, 2022 SCC OnLine SC 825 also asked Government of India to consider introduction of a “separate enactment” meant for granting bail as done in United Kingdom.

But, do these requests bring about a change? Though Justice Dalveer Bhandari’s effort in aforecited Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 did not lead to “irretrievable breakdown of marriage” being incorporated in statute as a ground for grant of divorce, SC does now, without a doubt, invoke its power under Article 142(1), grant a divorce on such ground. We may remember, contributions of Center for Enquiry into Health & Allied Themes (CEHAT) v. Union of India (2001) 5 SCC 577 and Center for Enquiry into Health & Allied Themes (CEHAT) v. Union of India (2003) 8 SCC 398 which caused reincarnation of The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 as The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Public Interest Foundation v. Union of India, (2019) 3 SCC 224 also serves as a benchmark. Justice Dipak Misra, as a Chief Justice of India, speaking through a Five Judge Bench, urged, “Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.” Court sought to increase transparency and called for declaration of criminal antecedents by candidates. Court in Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178 and Brajesh Singh v. Sunil Arora, 2021 SCC OnLine SC 571 issued further directions. Election Commission of India in compliance with SC issued detailed instructions to Chief Electoral Offices of all States and Union Territories. In field of Arbitration, Arif Azim Co. Ltd. v. Aptech Ltd., (2024) 5 SCC 313, which commented, a three-year limitation period u. S.11 of The Arbitration Act, 1996 is unduly prolonged, has met a positive response through Draft Arbitration and Conciliation (Amendment) Bill, 2024 as has Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., 2010 SCC OnLine SC 777 which led to The Mediation Act, 2023.

SC’s warning signs have also met failure, do note. At least two of Justice Bhandari’s other attempts haven’t brought a change. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16) SCC 517 Justice Bhandari challenged the very logic behind Doctrine of Adverse Possession. “Why the law should place premium on dishonesty by legitimizing possession of a rank trespasser” because of an owner’s “inaction in taking back the possession within limitation.” Justice Bhandari noticed “Doctrine of Adverse Possession has troubled a great many legal minds” and reiterated “time has come for change” in State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404. Law Commission, although met dissents from two Ex-Officio Members, in a disagreement with Court in its Report  No. 280, dated 24.05.2023, concluded, “there is no justification for introducing any change in the law relating to Adverse Possession”. Justice Bhandari in Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 is even more interesting. It was spelt out, a “serious relook” of Section 498A of The Indian Penal Code, 1860 was “warranted”. That “serious relook” did lead to a direction in Rajesh Sharma v. State of Uttar Pradesh, (2018) 10 SCC 472 that “every complaint under Section 498A received by Police or Magistrate be looked into by a Family Welfare Committees constituted by District Legal Services Authorities” that was struck down by Justice Dipak Misra, as a Chief Justice of India, in Social Action Forum for Manav Adhikar v. Union of India, 2018 SCC OnLine SC 1501. Last year, Justice J.B. Pardiwala wished to ascertain if Legislature has seriously looked into suggestions made in Preeti Gupta and read there is a “verbatim reproduction” of Section 498A in The Bharatiya Nyaya Sanhita, 2023 (‘BSS’) and only difference is that Explanation to Section 498A is now by way of a separate provision, i.e., Section 86 of BSS!

Irrespective of results that judicial intervention has brought, it must be asked, where should limits of judicial intervention be drawn? Indeed, “judicial activism” may be “useful”, as was said in Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683. It is correct, as was put by Justice R. Gogoi, not yet a Chief Justice of India, in Ritesh Sinha v. State of Uttar Pradesh, 2012 SCC OnLine SC 1015, “in a situation where call of justice demands expression of an opinion on a silent aspect of a statute, such void can be filled up with a call to Legislature to act promptly.” Justice U. Bhuyan, commented recently, at a Farewell Function organised by Bar Council of Maharashtra and Goa for Justice A.S. Oka, “according to me, criticism that Unelected Judges of Constitutional Courts should not interfere in law making by Elected Representatives of people has no legal or constitutional basis.” Justice A.S. Oka himself had correctly reflected in Union of India v. K. Pushpavanam, 2023 INSC 701, “Court may, at the highest, record its opinion or recommendation on necessity of either amending existing law or coming out with a new law.” Justice S. Karol in Kattavellai v. State of Tamil Nadu, 2025 INSC 845 recorded, in United States of America, Courts have directed States to award compensation to persons who suffered behind bars only to be eventually held innocent. Legislature was asked to consider this aspect. While an “opinion” or “recommendation” is suitable, Court cannot direct Legislature to enact a particular law. P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 borrowing from Professor S.P. Sathe’s ‘Judicial Activism in India - Transgressing Borders and Enforcing Limits’ cautioned against Court legislating exactly in a way Legislature legislates. Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96 held, it is not a Court’s duty to rewrite/recast/reframe a legislation. Justice S. Kant in Ajay Malik v. State of Uttarakhand, 2025 INSC 118 foretold, “Judiciary should not stray too far out of bounds, and expressly interfere in legislative domain.” It is as much true, as was said by Justice S. Khanna, not yet a Chief Justice of India, in Dr. Ashwani Kumar v. Union of India, [2019] 12 SCR 30, “there have been occasions when this Court has legislated beyond what can be strictly construed as pure interpretation.” Justice Oliver Wendell Homles Jr. in Southern Pacific Co. v. Jensen, 244 US 205, remarked, “I recognize without hesitation that Judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” SC Judges have ceased to confine themselves from “molar to molecular motions”.

Justice B.R. Gavai, as our present Chief Justice of India, commented recently, at a Grand Felicitation organized at premises of District and Sessions Court in Nagpur, “I always felt judicial activism was necessary because whenever Executive or Legislature fails, Judiciary has to step in as a custodian of rights of citizens. Though judicial activism is there to stay, it should never convert into judicial adventurism or judicial terrorism.” Thus, in Padi Kaushik Reddy v. State of Telengana, 2025 INSC 912 Chief Justice of India, Justice Gavai simply observed, it was for Parliament to “take a call” on present mechanism considering Kihoto Hollohan v. Zachillhu, 1992 Supp (2) 651 was not expected to anticipate, in future, situations would arise where the Speaker/Chairman would keep proceedings pending for years together and permit them to die a natural death. But, there isn’t a SC decision laying down guidelines for judicial intervention, after a study of its success and failure, to help one distinguish between “judicial activism” and “judicial adventurism” or “judicial terrorism”. This is a problem.

The paradox of Courts acknowledging their legislative incompetence when simultaneously performing legislative/quasi-legislative functions has created unrealistic expectations or knowledge about judicial capacity. It should be hard to count, the number of times the number of litigants have actually thought our Judiciary, in our “separation of powers” with no neat compartments, to be their best bet to push and prod to make law. Also, while Courts' efforts to act as a catalyst, in areas where laws are vague or obsolete or inadequate, cannot be faulted, as concluded by M. Katju in Common Cause v. Union of India, (2008) 5 SCC 511, “the worst result of judicial activism is unpredictability.”  All Judges of SC, at any point of time, should hold only one opinion on some thoughts. And exact rules behind SC’s passive role in legislative architecture is clearly one such thought on which all Judges of SC, at any point of time, should hold only one opinion. SC should ask itself, every time, “does this Order fix a rights-violation that no other Branch can realistically resolve?” The answer isn’t always a yes and Court must be honest when it’s really a no.

Disclaimer: Views expressed in this article are those of the authors.