Essay : Judicial Activism and Judicial Overreach in India

Courts have played a constructive and curative role in innumerable instances, for which they are highly respected by the citizens. Simultaneously, there is a thin line between judicial activism and judicial overreach. Judicial accountability has faced numerous debates in various forums in India and there is a growing dissatisfaction regarding the legislature and executive functions and their ability to deliver effective governance to meet the need and challenges of our times.

Yet, against the backdrop of all this, judiciary has been held in high esteem by the public at large is a matter of immense satisfaction. The judiciary as custodians of our people has discharged its responsibilities very well indeed.

The Indian judiciary is one of the most powerful judiciaries in the world at present and the socialist perception of it is very high. But, particularly in the disciplining of judges of superior court and the representative character of the courts, the accountability mechanisms haven’t been equivalent with the power and esteem.

Judicial Review

It has been pronounced by the Supreme Court as a fundamental feature of the Constitution and is understood to be the revision of the decree or sentence of a lower court by a higher court. Testing the constitutional validity of legislative provisions and the validity of administrative actions is a power commended over to the judiciary alone in our constitutional scheme. This power of judicial review is entrusted with a vision to ensure a system of checks and balances between the legislature and the executive on one hand and the judiciary on other hand.

Judicial Activism

Courts are no more passive and do not follow a negative attitude of striking down a law or preventing something being done but are rather adopting new attitude towards positive affirmative actions. They are issuing orders and decrees directing remedial actions.

The citizens have come to an opinion that the legislature and the executive have failed miserably in their duties towards the general public and their nearness to the people creates high expectations from the public and also draws sharp criticism whenever their actions fail to match their promises. So, with no other option left, citizens approach the judiciary to redress their grievances and under this situation the judiciary has taken an activist approach.

However, this activist approach is bound to create hostility and strain with legislature and executive.

The theory of judicial activism in India has evolved in the late 1960s or early 1970s when Mrs. Indira Gandhi was the Prime Minister of India. In order to implement her favourite slogan “garibi hatao” (remove poverty), she tried to introduce progressive socialistic measures such as abolishing Privy Purses and privileges given to previous rajas and princes of the princely states of pre-Independent India and nationalizing the 14 major banks to serve the cause of poorer sections more meaningfully.

The conservative judiciary then didn’t take it thoughtfully and struck down the pertinent legislation as unconstitutional.  This judgement of the Supreme Court of India was considered by Mrs. India Gandhi to be judicial overreach.

Judicial Overreach

Judicial activism when reaches an extreme stage where the judiciary makes arbitrary, unreasonable and frequent interventions into the domain of the legislature through disruption of balance of powers between the executive, legislature and judiciary.

Judicial Activism in India

While dealing with the constitutional validity of the 17th Amendment to the constitution in Golaknath v State of Punjab (1971), the Supreme Court evolved the concept of “prospective ruling” and stated that Parliament had no power to amend Part III of the Constitution or take away any of the Fundamental Rights.

Further, in Fundamental Rights case (Keshavananda Bharti v State of Kerala, 1973 ), the Supreme Court delivered a milestone judgment which evolved the theory of “basic structure” of the Constitution while dealing with the question of extending the amending power under Article 368 of the Constitution.

Parliament according to this judgement was confirmed to have wide powers to amend the Constitution including all the articles without destroying the basic structure or framework of the Constitution.

The court has also performed its service to the welfare of the public, particularly in areas of custodial deaths, prisoners’ rights, abolition of bonded labour, labourers’ rights, fixing absolute liability on hazardous industries, condition of mental homes, regulating pollution and enlarging the scope of “right to life” to name a significant few.

Intrusion from Activism to Overreach

When the obligated functions of the political branches of government are not discharged by the legislature and executive, then confidence of the citizens get eroded from the constitutional values and democracy. The judiciary has to thence, step into the areas generally earmarked for the legislature and executive.

When the government functionaries or any other third party directly or indirectly tread on the Fundamental Rights of the people, the judges may take proactive steps of coming to their aid. They perform the task of helping the distressed citizens cited as judicial activism.

Sometimes, to fill the void created by other organs of the government and to meet the societal needs, the courts indulge in judicial legislation and thereby encroach in the domain of legislature.

The Constitution vests in the Indian judiciary the power of review in order to keep both executive and legislature within the constitutional frameworks. The judiciary can annul any law that goes beyond the legislative competence of the Parliament or violates the Constitution. In case of any illegality or arbitrariness, it can strike down any executive action. This power is encompassed in Articles 13, 21, 32, 226 and 227. On the other hand, a unique, extraordinary power is extended to the Supreme Court by article 142, to do ‘complete justice’ in any matter before it.

But, some critics claim that this overreach is upsetting the constitutional balance among the three state organs – the legislature, the executive and the judiciary. This judicial activism was once considered as a necessary corrective action against the failing legislature and faulty executive. However, it hasn’t culminated to such state of affairs where the basic structure of the Constitution – the separation of powers is challenged.

If the judiciary considers itself the sole guardian of democracy and works on its whims and fancies to create pressure on the legislature and executive, then activism can worsen into overreach. The role of judiciary is to interpret the laws and come to a decision that collates the collective idea of the Constitutional values and nothing more or less is desirable from the judiciary.

The thin line between activism and overreach should be maintained and it should be understood that judicial activism is meant to positively enhance the failings of the executive while the overreach into its domain is akin to invading into democratic functioning.

The prominence of the legislature in policy making need to be maintained in the same manner as the independence of judiciary is upheld. Interference by courts into their domain is a violation of the basic structure of the Constitution and this is not justifiable.

Like other domains of the democracy, judiciary is also accountable and is expected to know its own limits. The need of the hour is to strengthen the quality and speed of the judicial system, enhance the judicial infrastructure and judges’ strength and build judicial competence.