Introduction
According to the Indian Constitution, the government has been divided into three organs: the legislature, the executive and the judiciary. The powers of each of them have been adequately defined in the text of the Constitution. A system of separation of powers between these organs has been provided for. The system is in place to prevent the concentration of power in the hands of any one of them.[1] We will focus on the Judicial organ of the Indian government. It includes the Supreme Court, High Courts and Subordinate Courts in different states. The Courts are accorded with the power of ‘Judicial Review’ under Article 13 of the Constitution. They function to protect and enforce the fundamental rights of the citizens.[2] The provisions ensure that any law that is in contravention of the fundamental rights is declared void. The topic of our present discussion i.e. Judicial Activism refers to a more active role played by the Judiciary while dispensing social justice.[3] This is an invented concept and has no backing under the Constitution. Judicial Overreach is a related idea, but still, there exists a narrow line of differentiation between the two. In this article, we aim to explain with clarity the meaning of both these judicial inventions and also how are they related yet different. We will also be looking upon various instances from the last few decades when the courts indulged in the practice of Judicial Overreach.
Judicial Activism
Judicial Activism, as mentioned earlier, denotes a more active role of judiciary in promoting social justice. It is also a process in which the judiciary steps in the shoes of the legislature and comes up with rules and regulations that should have been formulated by the legislature in the first place.[4] Earlier, judicial activism was restricted to the enforcement of fundamental rights of the citizens. However, in recent times, its scope has increased as the judges have started interfering in the governance issues as well. Judicial Activism works mainly by making use of invented mechanisms such as Public Interest Litigations, Suo Moto cognisance by the courts, and other new doctrines for there are no provisions backing this concept in the constitutional text. Discontinuation of the principle of ‘Locus Standi’, along with other mechanisms, has involved judiciary in such public issues where there is no complaint from the aggrieved party.[5] Typical instances of judicial activism that we are aware of include the Supreme Court’s 2001 ruling on providing mid-day meals in government schools and banning of smoking in public places on the basis of a PIL.
Judicial Overreach, and how is it different?
When judicial activism crosses its boundaries and becomes judicial adventurism, it is termed Judicial Overreach. While judicial activism is considered desirable by many, judicial overreach, on the contrary, is viewed as a threat to the democracy. As it disturbs the functioning of the other organs i.e. the legislature and the executive and in turn, goes against the spirit of separation of powers.[6] Arbitrary, unreasonable and frequent interventions are made in the functioning of the legislature when the judges start bypassing their power limits. Thereby, leading to the disruption of the balance of powers between the three organs. The primacy of the legislature in policymaking is a part of the ‘Basic structure’ doctrine given in the case of Kesavananda Bharati v. State of Kerala.[7] Therefore, judicial encroachment into their domain is considered constitutionally problematic.
Prominent instances of Judicial Overreach
Following is a list of the significant instances when the judges crossed their limits by interfering with the powers of the legislature and the executive.
Rejection of the National Judicial Appointment Commission (NJAC)
In 2015, the Supreme Court rejected the National Judicial Appointments Commission Act along with the 99th Constitutional Amendment. It sought to provide politicians and the civil society a final say in the appointment of judges to the highest courts. The court struck down the act as well as the amendment declaring them unconstitutional and void.[8]
Censorship of the movie- Jolly LLB 2
The Bombay High Court had appointed a commission that looked into the alleged defamation or contempt of court shown in the movie. The appointment came after the movie had been certified by the Central Board of Film Certification (CBFC). Therefore, four cuts were ordered in the film, and the CBFC was approached to recertify it. This was in direct infringement of the Cinematographic Act. The said Act does not provide any power to the courts in matters of modifying or certifying films.[9]
Suspension of Firecracker Licenses in the NCR
The Supreme Court’s October 2017 order on suspending licenses of the retailers and the wholesalers in Delhi- NCR region is another example of judicial overreach. The apex court banned the sale of firecrackers at a very short notice. It did not take into view the plight of the sellers who had already stocked up for the festival.[10]
Ban on Tamil Nadu’s ‘Jallikattu’ event
The Supreme Court has started transcending into the religious matters as well. The ban on Jallikattu is one such instance. It is a bull-taming sport that is played to mark the beginning of the four-day Pongal festival in Tamil Nadu. This matter was brought via a PIL filed by an Animal Rights Organisation, People for Ethical Treatment of Animals (PETA).[11] The court’s decision caused infuriation among the people in state of Tamil Nadu. Jallikattu festival holds extreme cultural significance for their agriculture activities. Livelihood of many people depended on this particular festival as well. As a result of massive protests, the ban on this festival was finally overturned in January 2017.[12]
Allahabad High Court’s 2015 Order
In 2015, the Allahabad High Court ordered that the children of bureaucrats and public functionaries must get enrolled in the government schools of Uttar Pradesh. This move was welcomed by people across the country for it could have been instrumental in bringing out the miserable conditions that exist in the government schools. However, this too was seen as a matter of judiciary crossing its boundaries.[13]
National Anthem in Cinema Halls
In 2016, the Supreme Court made it mandatory for cinema halls to play the National Anthem before the screening of a film and that all people present must ‘stand in respect’ for the country.[14] Though, the court, in 2018, modified its ruling by making it optional to play the national anthem.[15] But still, judiciary’s involvement in matters such as these comes under ‘overreach’.
Concluding Remarks
In the course of this article, we tried covering in detail the concepts of ‘judicial activism’ and ‘judicial overreach’. Judicial Activism is considered positive in a democracy for it makes up for the failures of the legislature and the executive. However, when the judges start overreaching into the domains of the other organs, the doctrine of ‘separation of powers’ which is a part of the basic structure gets challenged. Judicial activism is necessary to cure the system of its ineffectiveness and inactiveness. A breach of the thin line of differentiation that exists between activism and overreach is not desirable in a democratic country. The primary function of our judicial system is to interpret laws. However, when the courts start coming up with their own laws and guidelines, they essentially breach upon the functioning of the legislature. From the various instances of overreach as mentioned earlier in this article, it is clear that the judiciary needs to change the way it is working currently. The Judges, while pronouncing decisions, must take into account their limits. Additionally, like other organs of the state, they too need to be made accountable for every wrong step that they may commit so that we do not encounter a situation of ‘rule of the unelected’.
Footnotes
[1] Khushi Pandya, Separation of Powers – An Indian Perspective (April 22, 2013). Available at SSRN: https://ssrn.com/abstract=2254941.
[2] Article 13, Constitution of India.
[3] https://www.hindustantimes.com/india/what-is-judicial-activism/story-S4tUDlJp7E04dGWWbHJAcI.html
[4] https://swarajyamag.com/ideas/judicial-activism-judicial-overreach-or-judicial-romanticism-what-is-the-supreme-court-up-to#:~:text=When%20judicial%20activism%20goes%20overboard,spirit%20of%20separation%20of%20powers.
[5] Id., 4.
[6] https://timesofindia.indiatimes.com/india/Judicial-overreach-may-tilt-balance-of-power-CJI/articleshow/15510771.cms
[7] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
[8] https://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece
[9] https://www.thequint.com/voices/blogs/high-court-order-jolly-llb-2-illegal-waste-of-judicial-time
[10] https://www.hindustantimes.com/delhi-news/sc-allows-sale-of-firecrackers-in-delhi-ncr-for-the-time-being/storyDLjwvqYm7hn2dSmqm9gB1H.html#:~:text=The%20Supreme%20Court%20lifted%20on,National%20Capital%20Region%20(NCR)
[11] https://theprint.in/theprint-essential/jallikattu-begins-today-the-barbaric-sport-that-celebrates-hard-working-tamil-farmer/349508/
[12] https://www.dw.com/en/india-overturns-bull-wrestling-ban-in-response-to-massive-protests/a-37225694
[13] https://www.india.com/news/india/allahabad-hight-court-directs-uttar-pradesh-bureaucrats-politicians-to-send-their-children-to-government-schools-509777/
[14] https://www.thehindu.com/news/national/National-anthem-must-be-played-before-screening-of-films-Supreme-Court/article16729264.ece
[15] https://www.thehindubusinessline.com/news/playing-of-national-anthem-in-cinema-halls-optional-supreme-court/article10021703.ece#