Judicial Activism & Overreach

The Supreme Court’s decision to refer to a Constitution Bench the issue of granting legal recognition to same-sex marriages can be seen as an important step towards ensuring gender equality, despite apprehension that it is encroaching on the legislative domain.

Judicial legislation / Judicial Activism

  • Higher judiciary has given several prominent decisions which have raised the eyebrows of constitutional experts regarding the breach of separation of power in India.
  • There are several instances where legislature has delayed the anticipated or warranted actions. Such legislative inaction on burning social issues legitimises and invite judicial intervention.

Instances of Judicial legislation

  • Placing limitations on the President rule through S.R. Bommai Judgement in 1994.
  • The much needed sexual harassment at work place guidelines through Vishaka Guidelines.
  • Supreme Court in  M.C. Mehta vs Union Of India (2018); ruled that  no   motor   vehicle conforming   to   the   emission   standard   Bharat   Stage IV shall be sold or registered in the entire country with effect from 1st April 2020.
  • Supreme Court of India in a landmark case of Laxmi Kant Pandey Vs. Union of India (1984) laid down few principles governing the rules for Inter-Country adoption.

What exactly is Judicial Activism?

  • Judicial activism in India refers to the proactive role played by the judiciary in interpreting the Constitution and laws to promote social justice and protect fundamental rights. The Supreme Court of India has been particularly active in shaping public policy and addressing issues that affect the lives of millions of people in India. Judicial activism has been seen as a positive force for change in India, particularly in cases where the legislature or executive has failed to take action on important issues. However, there have also been concerns about judicial overreach, where the courts are perceived to have gone beyond their constitutional role and interfered with the functioning of the other branches of government.
  • One of the most famous examples of judicial activism in India is the case of Kesavanada Bharati v. State of Kerala, which established the principle of “basic structure” of the Constitution. The Court held that certain fundamental features of the Constitution, such as democracy, secularism, and the rule of law, are essential and cannot be amended by the Parliament.
  • While judicial activism can be seen as a positive force for change, critics argue that it can also undermine the democratic process and encroach on the role of the legislature and executive. Nevertheless, the Supreme Court of India continues to be an active participant in shaping the country’s legal and political landscape.
 Judicial Activism  Judicial Overreach
What is it?Judicial activism is manifested when the Supreme Court (or High Court) becomes an activist and compels the authority to act and sometimes also direct the government, government policies and administration.  It is an extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary into the domain of the legislature or executive. The court encroaches upon the role of the legislature by making laws.
Instances:Directing the Centre to create a new policy to handle drought.   Directing the Centre to set up a bad loans panel.   Reforming Board for the Control of Cricket in India (a private body).Directing the govt to constitute collegium to appoint EC.   Instituting collegiums (an extra-constitutional body)   Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency and accountability in higher judiciary

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 in India

While judicial activism has been seen as a positive force for change in India, there have also been concerns about judicial overreach, where the courts are perceived to have gone beyond their constitutional role and interfered with the functioning of the other branches of government.

  • Undermines the separation of powers between the judiciary, legislature, and executive. Critics argue that by making policy decisions, the judiciary is encroaching on the domain of the elected representatives and upsetting the delicate balance of power between the branches of government.
  • 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.
  • Creates a sense of uncertainty and instability, as policies that have been enacted through the democratic process can be challenged in court. This can lead to a situation where the courts are perceived as overriding the will of the people and the democratic process.
  • There have been instances where the Supreme Court of India has been accused of judicial overreach. For example, the Court has been criticized for interfering in matters of executive decision-making, such as the appointment of government officials, the regulation of environmental policies, and the management of religious sites.

How to address the Judicial Activism?

To address these concerns, there have been calls for greater judicial restraint and for the courts to limit their interventions in matters that are primarily the responsibility of the other branches of government.

  • Encourage Judicial Restraint: Judicial restraint refers to the idea that judges should limit their role to interpreting laws rather than creating them. To ensure that judicial activism does not undermine the democratic process, it is important to encourage judges to practice restraint and only intervene when necessary to protect fundamental rights or address clear injustices.
  • Foster Public Education: One of the criticisms of judicial activism is that it can be perceived as anti-democratic or elitist. To address this, it is important to foster public education on the role of the judiciary and the benefits of judicial activism. This can help citizens understand why judges sometimes need to use their power to protect the interests of marginalized groups or uphold constitutional values.
  • Promote Transparency and Accountability: To ensure that judicial activism is not abused, it is important to promote transparency and accountability in the judicial process. This can include measures such as public access to court proceedings and records, clear guidelines for judicial decision-making, and oversight mechanisms to ensure that judges are held accountable for their actions.
  • Foster Judicial Diversity: To promote fair and just decision-making, it is important to foster judicial diversity. This can include increasing the representation of women, minorities, and other marginalized groups on the bench, as well as promoting judicial education on issues related to social justice and human rights.
  • Encourage Dialogue and Debate: Finally, it is important to encourage dialogue and debate on the role of the judiciary and the use of judicial activism. This can include public forums, academic conferences, and other platforms for discussing the benefits and drawbacks of judicial activism and how it can be used in a way that is consistent with democratic principles.

By adopting these approaches, we can ensure that judicial activism is used in a way that upholds the principles of democracy, rule of law, and justice, and helps to promote a more just and equitable society.

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