This article is written by Chandan Kumar.
Table of Contents
India is a democratic nation with three branches of political power: the legislature, the executive branch, and the judiciary branch. Each branch of the democratic system performs a variety of functions from time to time, all while keeping the public and social interests in mind. The legislative power represents and proposes the State’s will, and as its agent, it enacts the general rules of society in terms of laws. The executive then has the responsibility to put such laws and orders into effect, ensuring that they are followed by everyone and that no violations occur. The third branch, the Judiciary, reviews the law, interprets the law, and adjudicates disputes by upholding laws and ensuring that the people are treated fairly. The Indian Constitution has separated these divisions into a structure that allows them to act as individuals without intruding on or overlapping with the duties of other branches, based on the concept of separation of powers. They work to keep a mechanism of checks and balances in place so that no one branch has more control than the others.
The Judiciary, also known as the judicial branch of government, is perhaps the most prominent among all the three branches. It is an important component of the government structure and plays a crucial role in the smooth functioning of our nation. The judiciary bears a significant duty for maintaining the balance of powers among all the branches and is seen by the governments to interpret the laws, and people turn to them to protect their rights. Dr. B.R. Ambedkar once said that “the people of a nation may lose confidence in the Executive (The King), or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human rights and civil liberties.”
It is undeniable that the judiciary’s traditional position is being transformed towards a more active participatory role in order to deal with the evolving culture and community. The Indian judiciary is sometimes referred to as the “watchdog” of democracy, and it must be autonomous and above all executive intervention in order for justice to be equal and impartial, and for the Judiciary to be capable of keeping a balance on the other two institutions in cases of constitutional violations. The Constitution, which is the supreme law of the country, contains vague terminology. It also defines the rule of law, which is the foundation of the country’s legal structure. Different groups of people interpret the word differently on different occasions. As a result, it’s common for authorities to have conflicts about their authority. As a result, an autonomous judiciary would aid in the maintenance of authority balances.
The principle of Judicial Review comes into play in order to preserve the supreme law’s integrity and freedom from the tyranny of powers. Judicial review is the power granted to the judiciary to examine statutory enactments made by legislative bodies. The Constitution of India confers the power of judicial review to the Supreme Court under Article 32 and to the High Courts under Article 226. The concept of judicial review was first used and developed by the American Supreme Court in the case of Marbury v. Madison where it established that the judiciary has the absolute power and responsibility to declare what the law is, and also that the Federal Court has the authority to deny to grant force to Legislative enactment that seems to be conflicting with the Court’s conception of the Constitution.
Likewise, the Supreme Court of India has consistently recognized the power of Judicial Review, arguing that this very power is inherent in a written Constitution unless explicitly prohibited by constitutional provisions. It has ruled that the power of Judicial Review is valid under the provisions of the Law that assert its superiority. Such judicial review powers are granted not to elevate the judicial above the other branches of the constitutional structure, but rather to maintain a balance of power among the legislature, executive, and judiciary. Articles 13, 32, 226, 141, 142, and 144 of the Constitution specifically grant the power of judicial review in light of a wide range of jurisdictions, authorities, and responsibilities, as well as Constitutional purposes.
There have been various instances in India wherein the Supreme Court has delivered landmark judgments using the power of judicial review. These instances include Shankari Prasad, Indira Gandhi, Kesavananda Bharati, Sajjan Singh, Minerva Mills, and many more cases. The Hon’ble Court stated in the case of Kesavananda Bharati that judicial review has become an inherent element of our constitution, and the High Courts and the Supreme Court have been entrusted with the power to determine the legislative competence of statutory provisions.
Then in the case of L. Chandra Kumar v. Union of India, the Supreme Court of India pronounced three-dimensional scope of judicial review: initially, to ensure justice in executive action, second, to safeguard the fundamental rights enshrined in the Constitution, and third, to decide on issues of legislative competence among the union and the states.
To make people understand the importance of the power of judicial review, Justice A. S. Anand while addressing “Judicial review – judicial activism – need for caution” expressed his view that “The legislature, the executive and the judiciary are three coordinate organs of the state. All the three are bound by the Constitution. The ministers representing the executive, the elected candidates as Members of Parliament representing the legislature and the judges of the Supreme Court and the High Courts representing the judiciary have all to take oaths prescribed by the Third Schedule of the Constitution. All of them swear to bear true faith and allegiance to the Constitution.
When it is said, therefore, that the judiciary is the guardian of the Constitution, it is not implied that the legislature and the executive are not equally to guard the Constitution. For the progress of the nation, however, it is imperative that all the three wings of the state function in complete harmony. A judicial decision either ‘stigmatises or legitimises’ a decision of the legislature or of the executive. In either case the court neither approves nor condemns any legislative policy, nor is it concerned with its wisdom or expediency. Its concern is merely to determine whether the legislation is in conformity with or contrary of the provision of the Constitution. It often includes consideration of the rationality of the statute. Similarly, where the court strikes down an executive order, it does so not in a spirit of confrontation or to assert its superiority but in discharge of its constitutional duties and the majesty of the law. In all those cases, the court discharges its duty as a judicial sentinel.”
We may deduce from the above observation that the job of the court is to see if the legislation is in accordance with the constitution or not, no matter what happens in the country, fair or unfair, the judicial system must carry out its responsibilities within its domain and ensure that no function of another branch is disrupted by its judgments.
The Notion of Judicial Activism and its Overreach
The legislature and the executive, in the opinion of the average Indian resident, have utterly failed in their beloved responsibilities to the people. The executive and legislative branches are held responsible for their acts. Because of their proximity to the citizens, they are held to high standards and are often chastised if their conduct does not meet the anticipated outlines. The average person believes that the government has been so despondent and derelict that they have no choice but to take their concerns to the courts. The judicial system has adopted an activist stance in response to these concerns. In India, judicial activism has grown and gained tremendous credibility among the Indian people.
Judicial activism is an extension of judicial review and a judicial ideology that encourages judges to depart from conventional and established precedents and adopt new progressive policies. It encourages the judiciary to use its authority to redress injustices while other government agencies are working on their behalf. In an evolving world, judicial activism is a complex phase of judicial orientation. Judicial activism is the mechanism by which the judiciary assumes the role of the legislature and proposes new laws and regulations that the legislative body should have enacted instead. As per the Black’s Law Dictionary, Judicial Activism means “A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”
There are several methods for executing judicial activism, in which Public Interest Litigation (PIL) is the most popular and widely used. Despite the fact that the principle of Public Interest Litigation is indeed the product of judicial activism, it has emerged as an effective method for the judiciary to address judicial activism. In India, judicial activism took on a more compassionate face by the way of granting relief and bringing justice to the deprived people through PIL. When a case was brought to court, the court will usually examine it and render a decision. However, in light of the nation’s enormous needs, the judiciary realised that it, too, has obligations to the people, a responsibility that it must perform in order to preserve the public’s faith in the judiciary, and that no authority in the nation can take any action that would jeopardise that faith and lead to controversy.
When during Indira Gandhi’s reign, many incidents occurred between 1975 and 1977, in which there were massive violations of fundamental human rights, and the court remained silent at that time, judicial activism increased after that and many active judges such as P.N. Bhagwati, V.R. Krishna Iyer, and others took notice of these instances and worked on the subject and contributed to its growth. There are various other notable methods of judicial activism used which include the expansion of the scope of fundamental rights (Article 21), interpretation of Directive Principles of State Policy and fundamental rights in a constructive manner, accessing international statutes to ensure constitutional rights, and exercising supervisory powers.
However, when the judiciary appears to have transgressed its jurisdiction, triggering a grave violation of the doctrine of separation of powers, the term “judicial overreach” is widely used. It is also commonly known as judicial adventurism. The line between judicial activism and judicial overreach is pretty minimal and it is difficult to draw a distinction between the two concepts. The former Prime Minister Manmohan Singh once stated that “Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial overreach is a thin one.” The judiciary cannot make new laws or change existing ones in the pursuit of law interpretation. Its job is to interpret laws while avoiding interfering with the function of other branches. The real threat is that frequent interference has a negative impact on the governance of the two branches of the state that are supposed to function independently.
The Hon’ble Justice Mathur and Katzu while deciding a case opined that “In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state.” It further stated that “Judges must know their limits and must not try to run the government. They must have modesty and humility and not behave like emperors.” Simply put, making any policy or implementing it is the job of the executive and not the judiciary, it is the job of the judiciary to ensure that it is followed properly. But when the judiciary forgets the limits and puts its step forward in order to do good to the people which is undesirable, and interrupts the work of the executive it is overreach.
To differentiate the terms ‘judicial activism’ and ‘judicial overreach’, it can be said that judicial activism is necessary for a valid judicial review. But the judiciary, by the way of activism, can only induce the accredited institution to fulfil its duties in the event of its incompetence or malfunction; if it tries to take over a role that belongs to some other branch, it is unacceptable and should not be allowed.
The Proposition of Current Judicial Activism, Overreach, and its Impacts
The hon’ble court has in various instances exercised its power and authority and performed the act of judicial activism to create a better condition for the society. By applying legal principles and existing laws, the judiciary has rendered several landmark judgments in recent times addressing wrongful detention, environmental concerns, children’s and women’s rights, minority affairs, health-related challenges, and human rights violations which aided in the emergence and growth of judicial activism.
Instances of Judicial Activism
The judiciary undertook an activist position in cases like Bandhua Mukti Morcha, Neeraja Chaudhary, and People’s Union for Democratic Rights, interpreting constitutional provisions to protect the weaker sections of society from the threat of forced or bonded labour. In these cases, the court emphasized the issue of safeguarding children’s educational, health, and development rights in promoting India’s democratic prosperity and directed the governments to follow measures to formulate policies in this regard.
The court, in the cases of M. C. Mehta, Sheela Barse,, Gaurav Jain, Lakshmi Kant Pandey, pronounced landmark judgments in the field of child welfare and development, acknowledging constitutional provisions as well as norms expressed in international conventions on the subject. These cases are relevant to this analysis because they provide an outstanding demonstration as to how procedural progress in public interest litigation in India has softened standing before court rules in order to make the legal system more open to vulnerable groups in society.
Another notable subject for judicial activism is women welfare, the court in case of Vishakha v. State of Rajasthan played the role of legislature and issued several guidelines for the prevention of sexual harassment of women at workplace. It can also be termed as judicial legislation where the court stated that these guidelines should be followed as law under Article 141 at all workplaces till the legislature enacts a specific law in this regard. Though the need for a legislation in this regard was observed by the court, it took legislature around 16 long years to formulate the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 for the concerned subject. This act of the judiciary has been criticised as overreach because it entered the legislative sphere, but we can infer from the long wait for the law to be enacted, even after the guidelines were issued, that the need for judicial activism in India is critical to address the issues that are surfacing in society.
Further, when court noticed the vibrant issue of prisoners’ right as they were not being treated properly and their rights were being violated, they used their power to adjudicate the concern and it can be seen when court rendered landmark verdicts for the protection of prisoners’ rights against illegal detention, police torture, fake encounter, inhuman treatment in the cases of Joginder Kumar, People’s Union for Civil Liberties, D. K. Basu, Sunil Batra, Hussanaira Khatoon, and Inder Singh.
One of the most significant steps of judicial activism is the banning of smoking in public places in the case of Murli S. Deora v. Union of India. The court in this case recognized the harmful and ill effects of smoking in public places to the other people and the absence of any statutory provision in this regard. Thereafter, the legislature enacted a new statute called the Cigarettes and Other Tobacco Products Act in 2003 banning completely smoking in many public places.
Instances of Judicial Overreach
With all active participation of judiciary in providing justice and taking steps for the betterment of the society, numerous instances have occurred in the country where the judiciary has crossed its line and overreached into the legislative and executive functions. Some of the instances are proactive censorship in the case of Jolly LLB 2, striking down of NJAC Bill, imposition of Patriotism in the National Anthem case, and many others.
The proactive censorship in the case of Jolly LLB 2 was a first case where the court acted as a censor, which is a violation of the Cinematograph Act, 1952, as well as Article 19(2) of the Indian Constitution. Here, a petition was filed before the court claiming that the film was in violation of section 5B of the Cinematograph Act, 1952, wherein the Bombay High Court admitted the petition and appointed a committee to submit a report on this issue and suggest the necessary changes. The committee submitted its report listing various scenes as ‘objectionable’ and amounting to defamation and contempt of court. Thereafter, the court ordered the director to cut four scenes and then directed the CBFC to re-certify the film.
In India, there is a law that courts can punish people for scandalising or lowering the authority of courts Act, 1971. But the view of the court based on the scenes from trailer depicting a cowering judge, brought disrespect to the Judiciary is clearly incorrect. When it comes to a movie or a movie, we all know that its characters, scripts are imaginary and humorous, not the truth. Through the movie, an attempt is made to show the feelings of the people. It should be taken and viewed as imaginary, not the reality of it. Also, the provisions of the Cinematograph Act, 1952 provide that to certify, censor, suggestions rights are the power of CBFC, nowhere in this act is there any mention of the role of judicial, court-appointed committee in the certification process.
When the court gave this order to CBFC, it is an uneven interference and it will be called judicial overreach as it is not the work of the judiciary. Further, Court order is a violation of Article 19 (2) as it can only be subject to reasonable restrictions by duly enacted law, which cannot be a court order. The same case came before the Delhi High Court in jolly LLB 1 when the court said that there is nothing like public interest in it and it would be wrong to decide only on the basis of the trailer. When a petition was filed against Aamir Khan’s movie PK, Justice Lodha said that “if you don’t like it, don’t watch it. India is a mature society. They know the difference between entertainment and other things.”
Moreover, in the case of Shyam Narayan Chouksey v. Union of India, the hon’ble court delivered a judgment imposing the patriotism of National Anthem making it mandatory to be played in the cinema halls/theatres before starting the film. It also made it mandatory for the people to stand up there, all the doors shall remain closed, and the National Flag should be displayed on the screen. This mandate by the court is a judicial overreach as it is a guideline behind which there is no law. It has been said in the Prevention of Insults to National Honour Act, 1971 that whoever intentionally prevents national anthem songs, shall be punished, but it has not been written anywhere in this law that it is mandatory to play in public place. In the Bijoe Emmanuel case, the court observed that there could be a personal religious reason for a human being that he could not sing the National Anthem or could not stand up due to physical disability. So, keeping this situation in view, it can be said that it is wrong to do the National Anthem Mandatory and against the established judicial precedent.
In the case of State of Tamil Nadu v. K. Balu, the Supreme Court while dealing with a petition for road safety, banned the sale of liquor within the 500 metres of any national or state highway with the aim to ensure the safety of the highway users. The judgment was based on various reasons including implementation of Article 47 for the betterment of people, alarming number of road accidents. In this case, the court struggled to understand the value of establishing a policy that could be applied in any situation and was grounded on some kind of test so that it could be treated as a precedent or guideline in the future. The court should have investigated if there was any kind of pressure that caused it to render this judgment. The ban was undoubtedly troublesome, as some governments began renaming state highways to main town roads in order to avoid revenue loss as a result of the restrictions imposed. The intention of the court in this case was proactive to reduce road fatalities but the court proceeded in a wrong way by banning the sale instead of advising the governments to take some necessary actions to prevent it.
Recently, when Emergency was imposed in Andhra Pradesh, at that time a case of habeas corpus case was filed before the High Court, during which the court ordered a judicial inquiry. The judicial inquiry was on the subject of whether there is a “constitutional breakdown” in the Jagan Mohan Reddy-led government in the state. The power to see whether there is constitutional breakdown in any state belongs to the executive under the ambit of Article 356, and if so, it is the executive’s power to invoke it and not the judiciary. It can be inferred from the S. R. Bommai case that the role of judiciary is to ensure by the way of judicial review that the President has imposed emergency by exercising his powers only after the Proclamation of the Council of Ministers and whether the objective conditions exist or not. But when the court ordered the judicial inquiry in the present case, it transgressed its limit and worked as an executive, the Supreme Court stayed it and termed it as a judicial overreach.
Impact of Judicial Overreach in India
Looking at these various recent instances, it can be said that the legislature is lagging behind in performing its function by judicial overreach is leading to conflict between the judiciary and the Legislative, which is a detriment to democracy as well as the Separation of Powers. There are various impacts of the judicial overreach that can be seen below: –
- It undermines the constitutional spirit of democratic country as it poses a threat to the doctrine of separation of powers. It causes a disunity among the legislative and judicial branches of government. As a result of these actions, the impression to the public is that of legislative inaction. The judiciary by the way of positive activism can exercise its power when there is a gap or loophole in the law and court can fill it, when there is no law or legislature fails to enforce, but by the judicial overreach it can only hamper the social welfare or undermines the authority of other branches.
- In certain situations, political, social, ethical, environmental, economic, and expert knowledge are required to understand and work effectively. So, in such a scenario, if the judiciary goes beyond its bounds and renders a judgment despite having no prior experience with the issue, it is detrimental to the country and causes damage, as seen in the instance of the liquor ban.
- On the one side, there is judicial activism, which encourages people to trust the judicial system, believing that if anything is unfair with them or in the society, the court will act in their best interests. In the other side, judicial overreach demonstrates that the court will go its own way, disregarding the principle of elective representation. It would erode people’s faith in democratic institutions and ultimately subvert democracy giving autonomy to the judges deciding matters that do not even fall the domain of judiciary.
- The concept of rule of law states the supremacy of law but in judicial overreach the rule of court refers that the ruling of court is supreme to the law, which is a blatant violation of separation of powers. Judiciary do not create policy; rather, they determine its true nature, which can cause consternation if they have a proclivity to do so. Hence, it is the obligation of the judiciary to refrain from interfering into the domain of other branches.
The Supreme Court has been active in influencing numerous daily aspects of the lives of Indian citizens by the way of judicial activism but the judicial overreach should also be not neglected and court should not try to justify its over activist approach on the grounds of procedural fairness or constitutional morality of providing justice. The Supreme Court itself has earmarked the limit stating “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State” and should deliberately follow it.
There seems to be no doubt that the Indian Judicial system possess incredible significance and authority. However, authority comes at a cost, it carries a great deal of accountability and necessitates rigid compliance to rules and regulations. The judiciary’s wide authority stokes fears of misuse of authority in the minds of judges. However, the constitution fails to hold the judiciary accountable to anyone, eroding the checks and balances system over time.
In India, the actions of Executive are subjected to judicial review when there is any injustice caused, the actions of legislature are also examined by the higher court if it makes any law contravening to the constitutional provisions and if there is any arbitrariness. But, in the case of judicial system, there is nothing which enables the other organ to keep a check on its rulings, only the higher bench can interfere and adjudicate. As a result, judges must be held responsible not just for their individual actions and competence, as well as for the legal judgments they pronounce, which often perplex and are, to put it mildly, enigmatic. The imperative for judicial accountability has become even more urgent as the courts now perform not only judicial but also quasi-executive roles for which the executive is answerable to the public.
In India, the judicial system has a propensity to wander outside of its constitutional domain, resulting in judicial experimentation that cannot always be assumed to be legal. Although the rule of rigid separation of powers is already fairly effective in India, judiciary often do not exercise judicial restraint when adjudicating disputes that are political or have broader public implications. Judges also express opinions on complex subjects that are beyond their purview, on key policy concerns that are the prerogative of legislature and the executive authorities.
Considering the above analysis, it can be inferred that the Supreme Court with its activism has protected the disadvantaged people of society against the unethical and unconstitutional acts of the executive and legislature but it has also exceeded its bounds. The court in various cases has understood its obligation to work in the area where there is a gap of law or failure on the part of legislature and the executive. But, also in the various instances it has overreached into their domain troubling the activities of these branches. The court has always used judicial activism to enhance our democratic values but in the name of judicial activism, judges do not attempt to exercise administrative or legislative roles without justification. There is a need for judicial accountability as when the judiciary is guilty of excess, only a larger bench or amendment can intervene.
The Indian Constitution divides the government into three branches, none of which has full control or authority. This must be admitted that perhaps the concentration of power in one branch of government is completely contrary to the concept of democracy. As a consequence, judicial ingenuity cannot be used to circumvent the Constitution and there is a need to restrain judiciary from exceeding its limit.
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