Judicial Activism & Overreach

Context:

Recently there have been several allegations on the judiciary to go against the spirit of Article 50 in the Directive State of Policy as many court orders are seen as interfering with the powers of the executive.

Probable Question:

1. What is the difference between Judicial activism and Judicial overreach? Discuss their implication on Indian democracy?

Introduction:

Judicial Activism- Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in society.

• The concept of judicial activism is inherent in judicial review, which empowers the   court to uphold the constitution and declare the laws and actions inconsistent with the constitution as void.

• Judicial activism is the use of judicial power to articulate and enforce what is beneficial for society

Judicial Overreach- Judicial Overreach refers to the interference of judiciary in the domain of legislation and executive.

• Judicial overreach is manifested often when the   judiciary empowers itself with extra-constitutional powers. And it is used often with the lamentation on poor working of other organs of government.

• Judicial overreach is misuse of judicial power.

Instances of judicial overreach include:

● Ban on Deepavali firecrackers citing rising pollution and safeguarding the environment.

● Invalidating the National Judicial Appointments Commission Act.

● Judicial legislation in form of Vishakha Guidelines regarding the prevention of sexual harassment of women in the workplace.

● The Supreme Court of India’s setting up of the Lodha Panel to probe the allegations of corruption and match-fixing in cricket

Note: Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary.

In India, the Constitution confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts). Further, the Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution.

CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW

Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.

Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.

Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.

Cause of Judicial activism and Judicial overreach:

● When the Legislature and Executive fail to discharge their respective functions, this results in erosion of the confidence in the Constitution and democracy amongst the citizens. The demands on the courts to improve the administration by giving appropriate directions increased.

● The citizens of the country look up to the judiciary for the protection of their rights and freedoms. This leads to tremendous pressure on the judiciary to step in aid of the suffering masses.

● PIL, which is a manifestation of judicial activism, has introduced a new dimension to the judiciary's involvement in public administration.

Concerns with the Judicial Overreach:

The line between judicial activism and judicial overreach is very narrow. When judicial activism crosses its limits, it leads to Judicial Overreach. Judicial activism has only flourished in India and acquired legitimacy with the Indian public. However, Judicial overreach raises a serious following concern:

● Judicial overreach challenges the doctrine of separation of powers, which should be considered a basic structure of our constitution and leads to the judiciary undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them.

● Unlike the other two branches of the constitution, the judiciary as an institution is not directly accountable to the people. This very lack of accountability requires the judiciary to practice self-restraint, act responsibly within the ambit of its constitutional powers.

● It reduces the trust people pose in the Parliament and elected representatives as frequent overreach signals executive inactivity and incompetency.

● In many cases, courts are often ill-equipped and lack the experience to weigh the economic, environmental and political costs involved like liquor ban cases.

● Frequent interventions by the judiciary, which sometimes borders on judicial adventurism, tend to weaken the functioning of the other two branches of the constitution.

Conclusion:

Judiciary, like all other institutions in a democracy, should be within the constitutional framework and follows the doctrine of the separation of power. The task of the courts should be to act in a way that compels the authorities to act and to pass executive orders rather than substitute judicial orders for administrative ones.