For judiciary, the red lines are bright and clear

Context: The role of constitutional courts in shaping the social, cultural and traditional values of a society has become a subject of intense debate in recent years. Public interest litigants and civil society groups often approach courts seeking their intervention when the legislature or executive fail to address issues related to tradition, culture and society. However, courts must be careful to consider whether such a role falls within their constitutional mandate, given the principle of separation of powers. This article explores the limits of the judiciary’s role as societal arbiters and the importance of respecting the institutional independence and competence of the legislature and executive.

Constitutional courts have been thrust into the spotlight in recent years as the line between judicial and legislative roles has become blurred. While the judiciary has the power of review over the other two organs, it must exercise this power with restraint, respecting the separation of powers and the institutional independence and competence of the legislature and executive. This article examines the fundamental principles of constitutional morality that guide the exercise of judicial review and emphasizes the importance of preserving the sanctity of the doctrine of separation of powers to ensure participative democracy in letter and spirit.

The Indian judiciary has played a pivotal role in shaping the country’s legal landscape, especially in the context of judicial activism and judicial overreach. These two concepts are highly debated in India and are an essential topic for the UPSC aspirants to understand. If we look at the General Studies- II: Governance, Constitution, Polity, Social Justice and International relation: Structure, organization and functioning of the Executive and the Judiciary. 

Judicial activism refers to the proactive role played by the judiciary in protecting fundamental rights and promoting social justice, whereas judicial overreach occurs when the judiciary goes beyond its constitutional mandate and encroaches upon the authority of the legislative or executive branches of government. 

In this article, we will discuss examples of judicial activism and instances of judicial overreach in India, examine the causes behind these two concepts, and explore the concerns over judicial overreach. Understanding the nuances of these issues is crucial for the UPSC aspirants to navigate India’s legal and constitutional landscape and to uphold the principles of justice and the rule of law.

So we are going to cover: 

Let us first understand the two: 

Judicial activism refers to a judge’s willingness to use their power to shape or even create law, rather than simply interpreting existing laws. This approach can involve using constitutional provisions to strike down laws that the judge believes are unconstitutional, or interpreting laws in a broad or expansive way to achieve a particular outcome. Proponents of judicial activism argue that it can be an important tool for protecting individual rights and promoting social justice.

Some examples of judicial activism in India include:

  • The Vishaka case: In 1997, the Supreme Court of India laid down guidelines to prevent sexual harassment of women in the workplace, even though there was no specific law in place to address the issue.
  • The Delhi Vehicular Pollution case: In 1998, the Supreme Court banned the use of old and polluting vehicles in Delhi to control air pollution, even though the government had not taken adequate measures to address the problem.
  • The Narmada Bachao Andolan case: In 2000, the Supreme Court ordered a halt to construction of the Sardar Sarovar Dam on the Narmada River until rehabilitation measures for displaced villagers were completed.
  • The Right to Information case: In 2005, the Supreme Court ruled that the right to information is a fundamental right under the Constitution and directed all public authorities to disclose information to citizens under certain conditions.
  • The Section 377 case: In 2018, the Supreme Court struck down Section 377 of the Indian Penal Code, which criminalized homosexuality, on the grounds that it violated the fundamental rights of individuals.

These are just a few examples of judicial activism in India. The judiciary has played a vital role in shaping and protecting the rights of citizens in the country.

Judicial overreach refers to situations where a judge goes beyond the bounds of their authority or role in the legal system. This can happen when a judge makes decisions that are not supported by the law, or when they exceed their constitutional authority. Critics of judicial overreach argue that it can undermine the rule of law and the separation of powers between the different branches of government.

Instances of judicial overreach in India

  • The National Judicial Appointments Commission (NJAC) case: In 2015, the Supreme Court struck down the NJAC Act, which aimed to replace the collegium system of appointment of judges with a new commission. The court ruled that the NJAC Act was unconstitutional as it violated the independence of the judiciary. However, some legal experts criticized the court for going beyond its jurisdiction and interfering with the legislative process.
  • The Sabarimala Temple case: In 2018, the Supreme Court allowed women of all ages to enter the Sabarimala Temple, which had previously banned women of menstruating age from entering the temple. The court’s decision was based on the principles of gender equality and non-discrimination. However, the decision was controversial as it was seen as interfering with the religious practices of the temple.
  • The Aadhaar case: In 2018, the Supreme Court upheld the constitutional validity of the Aadhaar scheme, which required citizens to link their biometric data with their government identification numbers. However, the court struck down some provisions of the scheme, such as the mandatory linking of bank accounts and mobile phone numbers with Aadhaar. Some experts criticized the court for interfering with the policy decisions of the executive branch.
  • The Delhi Government vs. Lieutenant Governor case: In 2018, the Supreme Court ruled that the Lieutenant Governor of Delhi does not have absolute powers and must work with the elected government of Delhi. The court’s decision was seen as interfering with the power dynamics between the executive and legislative branches of the government.

While the judiciary has a vital role to play in protecting the rights of citizens and upholding the Constitution, it is important to ensure that the judiciary does not exceed its constitutional mandate and interfere with the functioning of democracy.

In summary, while both judicial activism and judicial overreach involve judges taking an active role in shaping the law, the key difference between the two is that judicial activism is seen by some as a legitimate and necessary part of the judicial process, while judicial overreach is viewed as a violation of the proper limits of judicial authority. Contrary to the requirement of judicial activism, the intention of judicial overreach is not genuine. Overreach impedes the functioning of a healthy democracy’s institutions.

Judicial overreach occurs when the judiciary exceeds its constitutional mandate and interferes with the functions of the executive and legislative branches of the government. While judicial activism can be seen as a positive development, judicial overreach can have negative consequences for the functioning of democracy and the separation of powers.

Causes of Judicial activism and Judicial Overreach

  • Asymmetry of power: Supreme Court is the most powerful branch of governance. It’s every judgment is binding on the other two branches (legislature and executive) and it can strike down their actions as well as their laws. 
  • Public Interest Litigation (PIL): PIL permitted any member of the society to file a case for appropriate directions against any injustice. Consequently, the expectations of the public went high for judicial intervention to improve the administration. 
  • Lackadaisical approach of other organs: Lax functioning of the legislature and executive may result in corruption, delay, non-responsiveness, or inefficiency in the governance. These things create a vacuum in governance. Most of the time such vacuums are filled by the judiciary. 
  • Other factors: Growing consciousness of people for their rights, globalization, active media and civil society organizations, concerns for the environment among others are also considered important reasons for judicial activism and judicial overreach.

Concerns over Judicial overreach

Through, judicial activism the Supreme Court has done a tremendous amount of good. However, in many cases; the judiciary has used excess powers which can never be treated as judicial adjudication and even within the normal bounds of judicial activism. Such judicial overreach has given rise to the following concerns: 

  • Undermining the doctrine of the separation of power: The power vested in the Supreme Court through Article 142 of the Constitution is extraordinary. Frequent use of this power, to issue judicial decrees, is considered as a violation of the doctrine of the separation of power.
  • Negligence of the challenges faced by legislature and Executive: Sometimes the judiciary passes the order without keeping in mind Fund, function, framework, and functionary (4 F) that limit the work of Legislature and executive. For example, cancelling of coal blocks allocations and spectrum allocations led to the poor health of the financial institutions of the country.
  • Lack of accountability towards people: Judiciary as an institution is not accountable to the people in the same way as the legislature and the executive. Further, the judiciary also has the power to punish for ‘Contempt of court.’ This way the judiciary may evade public criticism for many of its actions.

Threat to the credibility of the judiciary: Entry into the legislative domain and inability to uphold the law may diminish the image of the judiciary.

So according to the author contends

  • The power of judicial review must not be interpreted as judicial supervision or superintendence over the legislature or executive. This position is especially applicable in matters of policy where domain expertise is called for, and in matters of societal experimentation where the festival of democracy must play itself out through the process of interaction and consultation between the electorate and the elected.
  • The power of judicial review is not meant to be wielded in such a way that judicial wisdom replaces the will of the majority by infantilising it since the Constitution does not envisage replacing democracy with judicial paternalism. On the contrary, the Constitution recognises that sometimes a good policy decision may be unconstitutional, and an otherwise bad policy decision may be constitutional. Only an instance of unconstitutionality warrants the intervention of the judiciary as the watchdog of the Constitution, if sought by the aggrieved parties.

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