On 16 September 2025, the Islamabad High Court suspended the appointment of the Chairman of the Pakistan Telecommunication Authority (PTA), declaring it “illegal, irrational and unsustainable in the eyes of law.” The High Court reasoned that the appointment had not been carried out in accordance with the prescribed law and that it “fell afoul of the obligation of the federal government under Section 24A of the General Clauses Act, 1897, to act in a just, fair and reasonable manner.” Two days later, however, the decision was overturned by the Division Bench of the High Court, and the Chairman of the PTA was reinstated. This is just one example of how seriously government business can be disrupted when the actions of the executive branch are scrutinised by the judiciary. Some, therefore, argue that judicial activism is unnecessary, reactionary, and meddlesome.
In all fairness, this criticism is not entirely unreasonable. For service delivery to be effective, the executive branch must be given the widest possible freedom in policy administration. The margin of appreciation in its decisions must be broad. This is the essential corollary of the tripartite configuration of government, as envisioned in the Constitution. The executive alone possesses the repertoire of data and expertise required to make informed policy judgements.
However, there is a caveat. If the margin of appreciation becomes too wide, it becomes prone to abuse. This is why judicial activism is necessary. It is a price that must be paid to safeguard civil liberties; without it, the executive risks becoming despotic. In other words, judicial activism balances governmental power with individual liberty, with the judiciary serving as its custodian. James Madison described this apparent paradox with unmatched eloquence when he said: “The greatest difficulty lies in this: you must first enable the government to control the governed, and in the next place to oblige it to control itself.”
But why does an unchecked executive run the risk of totalitarianism, and why is judicial activism the only remedy? Firstly, this arises from the inherent conflict between collective and individual interests. The executive, by the very nature of its functions, is tasked with advancing collective interests, whereas the judiciary is responsible for assessing whether these measures violate individual rights and liberties, or are enacted with manifest disregard of the law. History shows that measures aimed at promoting collective interests are often restrictive of individual freedoms. It is therefore essential that the judiciary maintain this balance.
Judicial activism serves as a constitutional counterbalance, ensuring that executive actions do not infringe upon individual liberties, and where infringement is unavoidable, it is minimised
Secondly, it is important to recognise the democratic nature of the executive (and legislature) and the technocratic nature of the judiciary. Ministers designing policies consider a broad spectrum of interests. In doing so, they naturally prioritise collective interests, balancing the often conflicting demands of political expediency, efficiency, and Pareto outcomes. After all, they are ultimately accountable to the electorate.
Judges, in contrast, are relatively impervious to the political and partisan pressures to which their executive and legislative counterparts are necessarily subject. They are therefore better positioned to evaluate whether a policy or measure intended to advance collective interests unduly infringes upon individual liberties. Only judges possess the legal expertise to understand these matters in depth and to determine objectively whether, and to what extent, such measures affect fundamental rights. As Lord Hoffman noted in R (Profile Alliance v British Broadcasting Corporation) [2003] UKHL 23:
“The courts are the independent branch of government, and the legislature and executive are, directly and indirectly, respectively, the elected branches of government. Independence makes the courts more suited to deciding some kinds of questions, and being elected makes the legislature or executive more suited to deciding others.”
Thirdly, the Constitution entrusts judges with the protection of individual liberties and fundamental rights. The public expects judges not merely to rubber-stamp executive decisions but to assess whether these measures comply with the letter and spirit of the enabling legislative and constitutional instruments. When compelling collective interests necessitate an infringement of individual liberty, interference must be kept to a minimum.
In contrast, a lack of judicial oversight could lead to de facto executive despotism. Executive actions prone to arbitrariness could go unchecked, resulting in conditions where the executive purports to act by the rule of law, yet is driven by partisan political interests. Individual rights could be repeatedly violated under the pretext of advancing collective interests.
This principle was illustrated in the infamous Steel Mill Privatisation case, in which the Supreme Court of Pakistan invalidated the privatisation process. The government argued that privatisation would promote collective interests. However, the process was marred by corruption and misfeasance. The Court found that the identity of the highest-ranked bidder had been deliberately withheld to manipulate the outcome. Consequently, the Court invalidated the bidding process on the grounds that it violated the rights of the highest-ranked bidder.
With that said, judicial activism should not be conflated with judicial overreach. Judges must avoid the judicialisation of policy administration. They should not decide whether privatising a steel mill is in the public interest or whether a particular hospital is being managed to the highest standards. They must recognise their limitations, respect the institutional prerogatives of the executive, and uphold the will of Parliament. While judges may be inclined to legal scholasticism, they are largely removed from practical realities on the ground. Their role is to address gaps where human rights are not respected or where prescribed legal processes have not been followed. When they make policy judgments, however, it becomes problematic, undermining the constitutional fabric they are entrusted to protect.
Therefore, while the executive may not welcome frequent judicial scrutiny, it must acknowledge that without this restraining role, it risks degenerating into executive despotism. Judicial activism serves as a constitutional counterbalance, ensuring that executive actions do not infringe upon individual liberties, and where infringement is unavoidable, it is minimised. Courts, however, must refrain from overreach and confine themselves to reviewing actions that violate fundamental rights and individual liberties.