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JUDICIAL ACTIVISM AND OVERREACH
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JUDICIAL
ACTIVISM AND OVERREACH
AUTHORED BY - YOGYA SHARMA
Advocate Supreme Court of India
ABSTRACT
The courts
play an important role in preserving the equilibrium of power among all
branches of government. Governments look to the judges to interpret the laws,
and citizens look to them to safeguard their rights.
The
conventional role of the court is undeniably getting altered into a more active
participation role in order to cope with the changing community and culture. In
order for justice to be equitable and impartial, and for the Judiciary to be
capable of keeping a check on the other two institutions in situations of constitutional
infractions, it must be independent and above all executive involvement.
Since about
the 1990s, the Courts in India have intervened more frequently in a variety of
cases spanning from government misconduct to parliamentary issues to policy and
political issues, causing continual conflict in between the 3 institutions.
Today's courts are not passive, with the mentality of simply overturning a
statute or preventing anything from happening. Instead, the new approach
entails delivering orders, affirmative action cases, and decrees ordering
corrective measures. Judicial activism is when the court intervenes in the
legislative and executive branches of government. In India, judicial activism
has grown in recent years, gaining acceptability among the Indian people.
The failure
of the executive and legislative branches to act has sparked judicial activism.
As a result, when the courts become activists and push the necessary
authorities to act, judicial activism is triggered. As a result, India's legislative
process has taken on new dimensions.
The
judiciary's frequent interventions, which occasionally verge on judicial
adventurism, tend to undermine the other two parts of the constitution's
functioning.
Understanding
the distinction between judicial activism and judicial overreach is important
for the smooth operation of a democracy that emphasises division of powers and
the superiority of the constitution as our nation's foundation.
The paper
shall include differences between the concepts of Judicial Activism and
Judicial Over-reach along with case laws to provide clarification. The paper
shall also discuss how both the concepts have affected the nation and its
policies for better or for worse.
INTRODUCTION
India is a
democratic country with three branches of government: the legislative, the
executive, and the judiciary. From time to time, each part of the democratic
system performs a range of duties, all while keeping the public and societal
interests in mind. The legislative authority enacts the broad norms of society
in the form of legislation, representing and proposing the State's will. The
executive then has the job of enforcing such laws and directives, ensuring that
they are adhered to by all parties and that no breaches occur. Among the three
branches of government, the judiciary is the most important, with powers
derived from the Indian constitution to act as a watchdog for the proper
functioning of our democracy. In the absence of responsible functioning of
other organs, such a significant Organ must be active or demonstrate activism
anytime it is required. Researchers realize that such a division isn't exact,
and that the different organs aren't separated by a waterproof barrier.
It is
unavoidable for one organ to rely on the other. To avoid any invasion, each
unit has the ability to maintain safeguards over the other. The judiciary has
the authority to evaluate the Executive and Legislative branches of government
to verify that they are acting within the bounds of the Constitution. According
to Articles 13, 21, 32, 226 and 227 of the Indian Constitution, it has the
power to overturn any legislation passed by the legislature if it breaches any
constitutional requirement, and it may also overturn any executive action if it
is determined to be unlawful and discriminatory. Article 142 expands the
Supreme Court’s power by granting it exceptional authority to issue any order
or decree necessary to deliver "proper justice" in any case before
it.
A
developing and maturing democracy allows for new and innovative ways to achieve
the status of just society. Public Interest Litigation, novel constitutional
interpretations, and progressive verdicts, to name a few, are some of the
routes encouraged by the court to improve our country’s democratic ideals. It
was suggested that the judiciary should establish its own ‘Lakshman Rekha
(inviolable border)’ and refrain from making judgments that are within the
executive’s jurisdiction, emphasising the growing rift between the judiciary
and the executive over the courts’ perceived overreach.[1]
From the
Gopalan Case in the 1950s to the current Environment-friendly judicial activism
judgments, the judiciary has taken a proactive role in reminding the
legislature and government of their obligations. True, there have been
occasions where judicial activism has devolved into judicial overreach,
infringing into other Organs’ jurisdictions.[2]
The origins
of the notion of judicial activism in India may be traced back to the early
mid-1970s or early 1970s, when Mrs Indira Gandhi, an outstanding lawyer and
legal icon, was Prime Minister of India and Mohan Kumaramangalam was Union
Minister. Only when late Mrs Gandhi tried to implement her slogan “garibi
hatao” (remove poverty) by abolishing Privy Purses and privileges given to the
erstwhile rajas and princes of the princely states of from before independence
of India, and nationalising the 14 major banks to better serve the poorer
sections of society, a traditionalist judiciary didn’t take too kindly and
quashed the relevant legislation. Gandhi saw the Supreme Court of India’s
decision in the Privy Purse abolition and bank nationalisation proceedings as
judicial overreach, and her response was forceful and clear. The most senior
Supreme Court justices who participated in the majority verdict in the
aforementioned instances are thought to have been passed up for nomination to
the office of Chief Justice of India on Mr Kumaramangalam’s suggestion. The
dissenting judge, Mr A N Ray, who was fourth in order of seniority, was
appointed, and the three senior justices resigned as a result (Justices Hegde,
Shelat and Grover). This was the beginning of the notion of judicial activism,
which was born out of the conflict between the legislature and the judiciary.
It is past
time for the judiciary to examine its own course of activity to ensure that it
is progressive and does not cross the line into authoritarianism.
The Hon'ble
Courts of India have used their power and authority and engaged in judicial
activism on several occasions in order to improve society's situation. The
judiciary has recently issued numerous landmark judgements addressing unjust
imprisonment, environmental issues, children's and women's rights, minority
affairs, health-related challenges, and human rights breaches, all of which
have assisted in the birth and expansion of judicial activism.
When the
court exceeds its authority, it risks interfering with the legislative and
executive branches of government's functions. Although it has resulted in
advantageous results in most of the cases, the disadvantages of Judicial
Over-reach on the society as well as on the other branches of the Government
shall be discussed in this paper along with solutions to the issue.
JUDICIAL
ACTIVISM AND THE SOCIO LEGAL STRUCTURE
Judicial
activism is the process through which the judiciary fills the shoes of the
legislature and proposes new rules and regulations that the legislature should
have enacted earlier. Judicial Activism is defined as a strict, objective, and
unbiased examination of the laws enacted by the legislature and the suggestion
of modifications to make them more legally compliant and equitable.
The failure
of the executive and legislative branches to act has sparked judicial activism.
It has also arisen as a result of concerns that the legislature and government
have failed to deliver on their promises. Third, it happens as a result of the
system's overall ineffectiveness and inactivity. Judicial activism has resulted
from violations of core human rights. Judicial activism has grown in importance
as a result of the misuse and abuse of various constitutional provisions. New
challenges emerge, such as cyberspace privacy, the right to life, environmental
concerns, increasing pollution, and when the government fails to fulfil its obligations.
Judges such
as V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and DA Desai were
proponents of judicial activism. The emergence of public interest litigation
and the resulting relaxation of the locus standi rule is frequently claimed to
be the source of judicial activism. PIL was created with the noble goal of
uplifting the oppressed, underprivileged, and destitute by providing justice
for them by easing the strictures of locus standi.[3]
The Supreme Court first took up a PIL case in 1979 in Hussainara Khatoon v
State of Bihar[4]
on behalf of convicts awaiting trial who had been held in jails for durations
beyond than the maximum penalty permitted for the charges in question. In this
case, the court made orders guaranteeing that the convicts receive proper
assistance. In Sunil Batra v Delhi Administration (1980)[5]
and Sheela Barse v Union of India (1983), the court issued important
directives for the protection of accused and convicts (male and female),
including improved jail accommodations, segregated lock-ups for female inmates,
and so on.
The Supreme
Court has issued rulings directing the most sophisticated interlinking river
engineering in India.[6]
The court has issued an injunction prohibiting the use of black film on vehicle
screens.[7]
The Court has taken cognizance and censured the Delhi Administration for
forcefully evicting Baba Ramdev from the Ram Lila grounds.[8]
Tourists are not allowed in the main region of tiger reserves, as per the
orders of the court. All of the Court's management manoeuvrings are based on
the questionable jurisdictional premise of upholding basic rights under Article
32 of the Constitution. In truth, no individual's fundamental rights or legal
concerns are implicated in such instances. The Court is merely being moved for
the purpose of better administration and management, not to perform any
judicial functions.
REASONS FOR JUDICIAL ACTIVISM
·
Inability of the legislative and executive to carry out their duties
Legislative
authority is exclusively placed in the legislature. Yet, due to widespread
corruption, personal interests taking precedence over the oppression of the public,
such a division of authority between the three institutions no longer holds
weight in today's situation. The parliamentary branch has devolved into a
majority rule rather than a rational procedure, failing to meet the goals of
justice. A democracy loses voters' faith and confidence when the legislature
fails to pass appropriate legislation in light of the changing character of
society and government agencies do not carry out their responsibilities
honestly. It is only appropriate for the judiciary to play a constructive role
in such unusual circumstances.
·
In the event of a breach of a citizen's fundamental
rights, there will be pressure to assist them.
When
the administration, its institutions, or any other related parties infringes
citizens' basic rights, courts may intervene to help them. Whenever people'
rights and interests are in jeopardy, they turn to the courts for assistance.[9]
The judge is constantly under pressure to offer such assistance. On several
occasions, the judges have promoted and launched PILs by loosening the need of
locus standi, adopting an adversarial style of litigation, and assuming the
capacity of an investigator, counsellor, and supervised administration.[10]
·
The legislature's inability to meet all of society 's demands
Regardless
of the fact that there are several laws on diverse themes, there are certain
legal issues that have yet to be addressed. This is attributable to a shortage
of awareness of such concerns, as well as the legislation's disinterest and
apathy. The court engages in judicial legislation when the parliament refuses
to pass a law that is necessary to fulfil the needs and desires of community.
·
The community 's trust in the judicial system is at an all-time high.
The
majority's trust and belief in the judicial system inspires the judges to act
above and beyond their mandate and then go to great lengths to protect their
freedoms. Citizens naturally trust the courts to protect their welfare as the
protector of basic rights.
·
Multiple Members' Roles
Individuals
and non-governmental organisations (NGOs) including such human rights
activists, consumer rights organisations, ecological advocacy organisations,
women's rights organisations, civil rights activists, and litigation
organisations are all accountable for fostering judicial activism.[11]
Several judges have paved the way for judicial activism on their own.
INSTANCES OF JUDICIAL ACTIVISM
In an 1893
Allahabad High Court ruling, a judge gave a dissenting decision, which was the
first instance of judicial activism. The case concerned a defendant who lacked
the financial means to hire a lawyer. The court had to determine whether to
decide the case solely on the basis of the materials he had presented. A case
could only be reviewed when someone speaks, according to the court. As a
result, he lay the groundwork for judicial activism in India. Under Indira
Gandhi's government in the late 1960s and early 1970s, the notion of judicial
activism grew yet further. The administration's complete abolition of Privy
Purses and rights granted to monarchs and rulers of princely states, as well as
the nationalisation of 14 banks, did not sit well with the judges, who deemed
the act illegal. The court's endorsement of the integrity of judicial review
captures the heart of judicial activism. The court stated in A.K Gopalan v.
State of Madras[12]
that judicial review is embedded in the Constitution. Even if it is not
present, a judiciary has the jurisdiction to proclaim a legislation unlawful if
it infringes a constitutional right. While dealing with the constitutional
legitimacy of the 17th amendment, the court in Golaknath v. State of Punjab[13]
concluded that Parliament cannot modify Part III of the constitution or take
away any basic right. In the case of Keshavananda Bharti v. State of Kerala,[14]
the Supreme Court ruled that Legislature cannot fundamentally alter the basic
structure of the Constitution. The Bhagalpur Blinding case[15]
found that under the purview of Article 21, the disadvantaged have the right to
free legal assistance and representation by a counsel, and that the offender
must be brought before the judge within 24 hours. The court in Balaji v.
State of Mysore[16]
held that, while disadvantaged classes are entitled to protective
discrimination, they must not be denied the right to equality and equal
protection under the law. The court ruled in the Asian Games case[17]
that employees engaged on a temporary basis for building projects were entitled
to protection under the applicable labour and industrial legislation and may
claim enforcement under article 32.
JUDICIAL
OVER-REACH
The term
"judicial overreach" is used when the court appears to have
overstepped its bounds, resulting in a significant breach of the idea of
separation of powers. Judicial adventurism is another term for it. Judicial Overreach
is a type of judicial activism in which the courts make arbitrary, unjustified,
and frequent incursions into the legislative realm, typically with the goal of
upsetting the balance of powers between the executive, legislature, and
judiciary. This is a situation in which the legislature's function is
encroached upon by the judiciary by passing legislation.
The
distinction between judicial activism and overreach is razor-thin. Simply put,
judicial overreach occurs when judicial activism exceeds its bounds and becomes
judicial adventurism. When the court exceeds its authority, it risks
interfering with the legislative and executive branches of government's
functions.[18]
At
one-point, judicial activism was seen to be required to remedy the
legislature's failures and the executive's crimes. However, now it has
progressed to the point where the concept of division of powers, which should
be regarded a component of the Constitution's basic construction, is being
questioned. Judicial activism has periodically resulted in judicial and
adventurism. Judicial overreach has a detrimental influence on the
constitutional foundation, which is separation of powers.[19]
Mostly
because of judicial overreach, the executive and judiciary's coordination is
occasionally harmed, which has a detrimental influence on the constitutional
system. The primacy of the legislative in policymaking is part of basic
structure, just as the judiciary's independence is, and interference by the
courts in their realm is not justified.
“The line
between judicial activism and judicial overreach is a thin one…A takeover of
the functions of another organ may become a case of over-reach”
-Dr.Manmohan
Singh[20]
The Supreme
Court, which had taken over legislative and executive responsibilities, was accused
of judicial overreach by the then Prime Minister. There have been several
occasions in which the courts have clearly overstepped their bounds and ordered
the administration to carry out its responsibilities. While that might be
beneficial, it's indeed contrary to the Constitution's structure. Judicial
conduct can indeed be proactive in situations like labour policy, environmental
and ecological issues,[21]
and so on, but when it intervenes in subjects like the government's economic
plans, international diplomacy, or even legislative procedures, it exhibits
judicial overreach.
INSTANCES OF JUDICIAL OVER-REACH
·
Shyam Narayan Chouksey v. Union of India: The National
Anthem Case[22]
The
Supreme Court mandated that the National Anthem be played just before movie begins,
and that everyone in the audience stand up to demonstrate due respect. Whilst
the National Anthem is being broadcast, the entrances and exits should be shut,
and the National Flag must be shown on the screen. The judges ignored the
precedent-setting Bijoe Emanuel and Uphaar Tragedy cases, in which the court
ruled that a movie hall's doors should never be shut. It was in violation of
the 1971 Prevention of Insults to National Honour Act, which states that no
movie, drama, or television programme may include the National Anthem as part
of the programme.
·
Lodha Committee Report on the Board of Control for
Cricket in India
The
Lodha Panel was established by the Supreme Court after the BCCI was accused of
bribery, match-fixing, and gambling. The panel agreed that BCCI should be
included in the RTI, that cricket betting must be legalised, and that ministers
and government employees must not hold multiple office positions (one post per
person, etc.). It was an instance of judicial overreach because the Lodha community
lacked power since BCCI was registered under the Tamil Nadu Societies Act, had
no state financing, and was not under the supervision of the federal or state
governments. The autonomy of sporting organisations must be maintained.
Interference from the outside is detrimental to their growth. The court
overlooked the fact that India had teams competing in the Ranji Trophy from
Railways and Services because of the one-state-one-rule. This severe
geographical region restriction eliminates Mumbai, Baroda, and Saurashtra,
among others.
·
NJAC Bill 99th Constitutional Amendment
The
most contentious instance of overreach is the Supreme Court's decision to
proclaim the 99th Amendment and the National Judicial Appointment Commission
Act 2014 illegal and invalid in order to replace the collegiate system. The
administration's request to challenge the matter to a higher court was denied,
but the Apex court encouraged proposals to enhance the existing collegiate
structure. The NJAC guarantees that court appointments are made in a
transparent manner. The panel that selects judges is made up of an equal number
of judges and non-judges, ensuring that authority does not rest only with the
judiciary or the political elite.
IMPACT OF JUDICIAL OVER-REACH
·
The idea of separation of powers has been violated.
An
administration's powers and responsibilities must be shared among three organs:
the legislative, the administrative, and the judicial system, with adequate
checks and balances in place. However, judicial activism has allowed for the
creation of judge-made legislation, which is a violation of constitutional
power.
·
Detrimental to the Rule of Law
Judicial
activism does help to ensure that the rule of law is followed. When a court
goes too far, it is referred to as "judicial populism".[23]
Judiciary is not meant to make laws; instead, they must determine their actual
meaning, or else chaos will ensue.
·
Accountability is lacking.
The court's
expanded authority is a source of worry since it allows for abuse of authority.
For a democracy to function, transparency and accountability are essential; the
judiciary must likewise be fair and responsible. Nevertheless, that's not the
reality, since it undermines the balance of power.
CONCLUSION
In
India, the judicial branch seems to have a tendency to stray from its legal
bounds, leading to judicial experimentation which is not necessarily lawful.
There seem to be signs that the courts are overstepping its boundaries and
entering further and further into the exclusive domains of the legislative and
the executive, causing an undesirable imbalance in the nation's sensitive
institutional balance.
The
judicial system, like other democratic institutions, ought to be responsible
and aware of its own limitations. The government should establish new measures
to make the judiciary answerable in order to maintain openness, and the
judiciary must attempt to exercise judicial restraint. It only allows judges to
overturn a legislation if it is absolutely unlawful. It asserts that the court
does not have the authority to make laws. It recognises the other two
institutions' equivalence and limits the court's influence over the other
branches. This also protects the judiciary's integrity and reinforces the idea
of division of powers.
A
proper judicial involvement is one that falls within the judicial review's
authorised parameters. The court has no jurisdiction over matters of federal
policy or administration that do not involve basic legal concerns.
When
the state fails to fulfil its obligations, like degradation of the environment,
sexual violence, educational reforms, and corruption, the courts might
intervene to protect the citizen's rights by issuing a writ of mandamus to the
responsible public body. Nonetheless, there is a fine line between judicial
activism and overreach, which judges should observe. It's indeed critical that
the court remain fair, impartial, and above all, constrained. A thorough and
integrated strategy focused on strengthening legal facilities and eliminating
lack of discipline could enhance the quality and efficiency of the conventional
legal system.
BIBLIOGRAPHY
Articles
·
Ahmed, H. (2016). ‘The concept of Public Interest
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suitable examples.
·
B Nagarathnam Reddy, Judicial Activism vs Judicial
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·
Bhasin, K. (2018). Environmental Governance in India:
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·
Gauri, V. (2009). Public interest litigation in India:
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(5109).
·
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·
Jain, N. (2010). Judicial Power: From Judicial Review
to Judicial Overreach. Indian Journal of Public Administration, 56(2), 331-342.
·
Jain, N. (2010). Judicial Power: From Judicial Review
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·
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·
R Shunmugasundaram, Judicial activism and overreach in
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·
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Analysis on Judicial Activism and Overreach.
·
Satapathy, A., & Satapathy, S. JUDICIAL OVERREACH UNDER
THE GARB OF JUDICIAL ACTIVISM: WHERE DID WE GO WRONG?.
·
Sateh, S. P. (2002). Judicial activism in India:
Transgressing borders and enforcing limits.
·
Shukla, S. (2018). Judicial Overreach: The Role of the
Judiciary in Contemporary India. Anish Kumar Verma, 25.
·
Shunmugasundaram, R. (2007). Judicial activism and
overreach in India. Amicus Curiae, 2007(72), 22-28.
·
Swati Sharma, Rahul Rishi & M. S. Ananth, Judicial
Activism in India: Whether more Populist or Less Legal?, 1(1) Indian Journal of
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Books
·
Khosla, S. (2013). Human Rights and Judicial Activism
in India. GUIDELINES TO CONTRIBUTORS, 154.
·
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[1] Khosla, S. (2013). Human Rights
and Judicial Activism in India. GUIDELINES TO CONTRIBUTORS, 154.
[2] Shukla, S. (2018). Judicial
Overreach: The Role of the Judiciary in Contemporary India. Anish Kumar Verma,
25.
[3] Gauri, V. (2009). Public interest
litigation in India: overreaching or underachieving? World Bank Policy Research
Working Paper, (5109).
[4] SC 1979 AIR 1369
[5] (1978) 4 SCC 409
[6] Jain, A. G., & Rosencranz, A.
(2014). The Indian Supreme Court Promotes Interlinking of India's Rivers:
Judicial Overreach. Envtl. L. Rep. News & Analysis, 44, 10348.
[7] Avishek Goenka vs. Union of India,
(2012) 5 SCC 321
[8] In Re: Ramlila Maidan Incident
(2012) 5 SCC 1, 2012 AIR SCW 3660
[9] Ahmed, H. (2016). ‘The concept of
Public Interest Litigation lies at the root of judicial activism in India.
‘Elaborate with suitable examples.
[10] Satapathy, A., & Satapathy, S.
Judicial Overreach Under The Garb Of Judicial Activism: Where Did We Go Wrong?.
[11] Upendra Baxi, ?The Avatars of
Indian Judicial Activism: Explorations in the Geographies of (in) Justice in
S.K.Verma and Kusum, Fifty Years of Supreme Court of India – Its Grasp and
Reach 173 (2000).
[12] A.K Gopalan v. State of Madras
1950 AIR 27
[13] Golaknath v. State of Punjab 1967
AIR 1643
[14] Keshavananda Bharti v. State of
Kerala AIR 1973 SC 1461
[15] Bhagalpur Blinding case 1982 AIR
1008
[16] Balaji v. State of Mysore 1963 AIR
649
[17] Asian Games case 1982 AIR 1473
[18] Rahman, M. M., & Badhon, R. Z.
(2018). A Critical Analysis on Judicial Activism and Overreach.
[19] Jain, N. (2010). Judicial Power:
From Judicial Review to Judicial Overreach. Indian Journal of Public
Administration, 56(2), 331-342.
[20] Speaking at the Conference of
Chief Ministers and Chief Justices held in New Delhi in Apr 08, 2007.
[21] Bhasin, K. (2018). Environmental
Governance in India: An inefficient outcome due to lack of “specialized” and
strong institution?.
[22] Shyam Narayan Chouksey v. Union of
India (2017) 1 SCC 42
[23] S. P. Sathe, Judicial Activism:
The Indian Experience (2001) 6 Washington University Journal of Law &
Policy 29.
Article Information
JUDICIAL ACTIVISM AND OVERREACH
Authors: YOGYA SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/21
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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