Judicial Activism or Judicial Overreach- Where are we headed towards?

  • Dhruti Lunker

INTRODUCTION

As we welcome 2020 and step into a new decade, it is time to turn back and appraise the historic decisions delivered by the Apex Court. It pronounced its decisions on some of the most controversial cases. It started with the pronouncement of the decision declaring Aadhar linking mandatory, followed by decriminalizing homosexual intercourse, making Triple Talaq unconstitutional. These were the issues that were in question for more than a decade and with the passing of 2018, these issues were addressed and set to peace. In 2019, the Hon’ble Supreme Court decided on the Ayodhya land dispute. Since India is a secular country, the entire nation was eagerly awaiting the Highest Court’s decision on this particular issue. With 2019 coming to an end, the most deliberated piece of legislation on Citizenship was passed with quite a majority from both the houses. The Apex Court has remained mum about the legislation and has chosen to not give its opinion on the act’s validity. The legislation saw a lot of dissent throughout the country. The Highest Court of the country had released a statement declaring that it would not hear any review petition filed against the act unless it is assured that the situations are restored to normalcy. The Indian Constitution has clearly defined the roles and powers of each organ to ensure that the Constitutional values in its entirety can be upheld. India does not follow a rigid separation of powers, rather it ensures that there is a check on each organ’s power so that there is no abuse. There is a very famous saying “absolute power corrupts absolutely”. In order to avoid such a conflict, the Constitution has ensured that each pillar gives each other its space and co-operates, coordinates and collaborates with each other to achieve the democratic principles that the citizens are promised of. This shows that the Indian system works on a co-operative model rather than a competitive model. When one fails to perform its duties, the other steps in to ensure that the rights of the people are in no way affected because of such a failure.

WHAT IS JUDICIAL ACTIVISM?

Judicial activism, in its ordinary sense means a situation when the Judiciary plays an important role in lawmaking or formulating any policy decision while deciding on a case. It also has the power to strike down any existing law, rule or norm that stands in the way of its decision. Judiciary exercises its power of activism when one of the other wings fails to exercise or perform the function that falls under their ambit. It is a situation that arises not only due to the failures of one of the organs, but also to give voice to those groups in the society whose voices have either been silenced or unheard. It can also be stated to arise on an instance when the majority has guided the government in a way that is not appreciated by the minority who should not be left unheard. The need and importance of judicial activism has divided itself into two extremely diverse opinions- one group is of the opinion that when the legislature and executive are inert, the Judiciary involuntarily becomes prominent. The other group is of the opinion that since the legislature and executive are dormant and inactive, the judiciary voluntarily has to step into their shoes and involve itself in the task of law or policy-making(i). For a better understanding, it is important to throw light on some of the instances of judicial creativity that have had a tremendous impact. In the case of Vishaka v State of Rajasthan, the Apex Court had directed the Legislature to enact a piece of legislation for regulating laws on harassment of women at workplaces. Another landmark example is the case of Supreme Court Advocates on Record Association v Union of India, where the Court interpreted the word “consultation” to mean “concurrence”.(ii) The former is a case where judicial activism was required to give a voice to the unheard, while the latter is a situation that arose when judicial creativity was required to clear the air relating to certain things. Simply, when the judiciary is involved in law or policymaking, it is called judicial activism. When the judiciary oversteps the prescribed powers, it becomes a case of judicial adventurism. Thus, there is a thin yet blurry line of difference between judicial activism and judicial overreach.

DRAWING A LINE BETWEEN JUDICIAL ACTIVISM AND JUDICIAL OVERREACH

The Judiciary, in addition to performing its primary duty of interpretation and adjudication also has to ensure proper deliverance of justice. Since the late 1970s, there was a rapid growth in Public Interest Litigations (PILs) to implement an effective mechanism for delivery of justice. When the Court while deciding on the rights of the parties, passes general orders such as mandatory wearing of helmets, the quantum of fines to be imposed for those who jump a red light etc. amounts to overstepping its ambit. All this is something that has to be done by the executive as making rules, regulations comes under the executive’s purview of work. To cite a few examples-

  • In 2012, the Gujarat Government filed a petition against the order of the Punjab High Court that ordered for the release of a TADA convict. To this, Justice Dipak Misra wrote that the order was incomplete and vague as it did not observe the legal principles that a judge is bound by.(iii)
  • In 2015, the Apex Court constituted the Lodha Committee under the chairmanship of Justice Lodha to resolve the problem of betting in the IPL. Rather the Committee ended up giving suggestions on the working of BCCI where it decided the number of votes that each state should hold. In this case, there was no judicial intervention required in regulating the working of BCCI. The issue was only to resolve the problem of betting.(iv)
  • In November 2017, the Union had made a requisition to the Apex court to not admit any petitions relating to Rohingya refugees as there were chances that the Court might overturn the policies that the Centre had framed in national interest. But, the Court did not pay any heed to the request of the Centre.(v)
  • In 2017, when the Supreme Court was considering to impose a blanket ban on the sale of fire crackers, it, in its judgment decided to set up a committee thus sidelining the already existing committees in place like CPCB, SPCBS etc. To this, many academicians and legal scholars have opined that when the Court creates or constitutes a new committee, the committees set up by the executive feels powerless. Instead the Court should direct the concerned state governments to set up a committee or assign the work to the existing committees.

The most recent case of judicial overreach, according to some legal scholars is the decision in the case of Sabarimala. It is opined that there should have been no interference of courts with the ban on entry of women into the temple since it is an essential religious practice that has been followed since thousands of years as stated by Justice Indu Malhotra herself.(vi) Here, the judiciary overstepped its boundaries by doing what was not required and expected out of it. To resolve the problem of judicial adventurism, the legislature has found a new tactic. It can reverse the orders of the Court by passing a law on the same. One such example is the case of Commissioner of Customs v Syed Ali, where the Court directed the Customs department to refund all the customs collected by them and declared them as unauthorized. To nullify the same, the legislature passed an act with retrospective effect making the imposition of previous customs valid. The judiciary is determined to ensure that the people are not deprived of their basic human rights. Judicial activism is a boon and blessing when it is rightly exercised for working towards upliftment of the downtrodden. The moment it becomes a prey to corrupt politicians and ministers, it becomes a case of judicial overreach.(vii)

CONCLUSION

Supreme Court is known for its role of sentinel on qui vive. It is very important for the court to suo moto take up cognizance of certain issues or respond to the unheard voices of insufficiently represented communities. Some call judicial activism merely a myth while others think that due emphasis has to be given to such concerns. The judiciary should ensure that it does not overstep its area of work. Judicial activism is important for a healthy democracy for requiring participation from unheard voices. A passive judiciary does not fit right for upholding the democratic principles of India. What has to be ensured is that a fine balance is maintained among all the organs of the government. Also, since the public is slowly losing faith in the government, the judiciary has to play a larger role in preserving justice. Of late, the legislature has begun overruling the Courts’ decisions to invalidate them by enacting laws.(viii) The democracy will remain hail and healthy as long as the powers are within check. Indeed, it is a difficult task to draw a line between judicial activism and judicial adventurism.


(i) http://prsindia.org/theprsblog/legislature-versus-judiciary

(ii) Legislative role of Judiciary in India: A critical Analysis, ILI Law Review

(iiihttps://www.thehindu.com/news/national/Supreme-Court-warns-judges-against-judicial-overreach/article14474601.ece

(iv)https://theprint.in/opinion/apex-courts-judgment-diwali-firecrackers-not-first-case-judicial-overreach/11954/

(v)https://www.indiatoday.in/mail-today/story/legislatured-judiciary-vigyan-bhawan-constitution-day-modi-kovind-dipak-misra-1094316-2017-11-26

(vi)https://timesofindia.indiatimes.com/blogs/seeing-the-invisible/sabarimala-a-serious-case-of-judicial-over-reach/

(vii) A critical Analysis on Judicial activism and overreach,  (IOSR-JHSS)

(viii) Myth of Judicial overreach, EPW

The author is a 3rd Year Student of TNNLU, Tiruchirappalli

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