Judicial Activism vs. Judicial Overreach: A Constitutional Perspective

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11-Nov-2024 |

The judiciary plays a crucial role in upholding the rule of law, but the line between judicial activism and judicial overreach is often debated. Recent instances, such as the Supreme Court's intervention in matters like criticizing Delhi pollution, stubble burning and directing the union government to install smog towers, have sparked discussions about its influence on public policy and constitutional values.

This blog will explore the concepts of judicial activism and overreach, analyzing their definitions, implications, and the delicate balance between them. Through recent case studies and constitutional insights, we will examine the complexities of this issue and its impact on Indian democracy.

Judicial Activism, Judicial Overreach and Judicial Restraint

Judicial Activism signifies the proactive role of the Judiciary in protecting the rights of citizens. It occurs when judges take an active role in interpreting and shaping the law, rather than merely applying it as written. This may involve interpreting laws to expand or restrict certain rights or protections, or resolving legal disputes in ways not explicitly outlined in the legislation.

The term "judicial activism" was first coined by historian Arthur Schlesinger, Jr. in 1947. While the practice originated in the USA, its foundation in India was established by eminent judges like Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy, and Justice D.A. Desai.

Judicial Overreach refers to instances where courts exceed their legal authority or jurisdiction by making decisions that should be left to other branches of government. This can be contentious, as it may disrupt the balance between different branches of government and undermine the principle of separation of powers, a key aspect of many democratic systems.

Judicial Restraint is the opposite of judicial activism. It is a theory of judicial interpretation that urges judges to limit their own power, emphasizing that courts should focus on interpreting the law rather than engaging in policy-making. Judges are encouraged to base their decisions on:

The original intent of the Constitution's framers.
Precedents set by previous rulings.

In this approach, courts "restrain" themselves from establishing new policies through their decisions, leaving policy-making to other branches of government.

Need of Judicial Activism

Failure of Legislature and Executive to Discharge Functions:

The legislature holds the primary power of lawmaking, but in practice, the separation of powers between the three organs has weakened due to rampant corruption, personal interest prioritization, and the neglect of the masses' needs.
The legislative process has increasingly become a rule of majority over reason, failing to deliver justice. When the legislature cannot adapt to the evolving nature of society, and government agencies fail in their duties, the democratic system risks losing public trust. In such extraordinary situations, it becomes reasonable for the judiciary to assume a more proactive role.

Pressure to Protect Citizens’ Fundamental Rights:

When the government, its agencies, or third parties infringe on citizens' fundamental rights, the judiciary often steps in to protect them.
Citizens frequently turn to the courts when their rights and interests are at risk, and the judiciary faces significant pressure to provide that protection. Courts have encouraged Public Interest Litigations (PILs) by relaxing requirements like locus-standi and the adversarial form of litigation. In some cases, the judiciary assumes investigative or administrative roles to ensure justice.

Legislative Gaps in Addressing Societal Needs:

Despite the existence of multiple laws, there remain issues unaddressed by legislation due to lack of exposure, attention, or indifference from the legislature. In such instances, where essential laws are absent to meet societal needs, the judiciary steps in with judicial legislation to fill the gaps.

Public Confidence in the Judiciary:

The judiciary derives strength from the faith and confidence that the public places in it. This confidence often motivates courts to exceed their formal capacity and advocate for citizens' rights. As the guardian of fundamental rights, the judiciary is naturally expected by the public to protect their interests.

Role of Individual Players:

Judicial activism is often encouraged by individual players and NGOs, including human rights activists, consumer rights groups, environmental groups, women’s rights advocates, civil rights activists, and lawyer-based organizations. Certain judges, through their individual efforts, have also laid the groundwork for judicial activism.

In such circumstances, the judiciary was compelled to assume an active role. This was achievable only through an institution like the judiciary, endowed with the authority to rectify societal injustices. To safeguard democracy from being undermined, the Supreme Court and High Courts took on the responsibility of addressing these issues.

Similarly, Vishaka v. State of Rajasthan (1997) underscores the need for judicial activism. In this case, the Supreme Court laid down guidelines to ensure the proper treatment of women in the workplace, stating that these guidelines should function as law until Parliament enacts legislation to enforce gender equality.
In G. Satyanarayana v. Eastern Power Distribution Company (2004), Justice Gajendragadkar held that a mandatory inquiry must be conducted when a worker is dismissed for misconduct, and the worker must be given an opportunity to defend themselves. This judgment introduced critical regulations to labor law, which had been overlooked by the legislature.

Early Cases of Judicial Activism in India

The roots of judicial activism in India can be traced back to an 1893 judgment by the Allahabad High Court, where a judge dissented in a case involving an under-trial who couldn’t afford a lawyer, emphasizing that a case must be argued, not decided solely on written submissions. This set the foundation for judicial activism in India.

A.K. Gopalan v. State of Madras (1950):

The Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just.

Privy Purse Case (Madhav Rao Scindia v. Union of India, 1970):

The Supreme Court ruled that the President’s power under Article 53 must be exercised in accordance with the Constitution, striking down the executive’s action of de-recognizing princes without legal basis.

R.C. Cooper v. Union of India (1970):

The Supreme Court invalidated the Bank Nationalization Act, citing unreasonableness, as restrictions on non-banking business made it impossible for banks to function commercially.

Golaknath v. State of Punjab (1971):

The Supreme Court introduced the concept of "prospective overruling" and held that Parliament could not amend or restrict fundamental rights under Part III of the Constitution.

Kesavananda Bharati v. State of Kerala (1973):

A landmark judgment where the Supreme court established the "basic structure" doctrine, ruling that Parliament’s power to amend the Constitution could not destroy its essential framework.

Hussainara Khatoon (I) v. State of Bihar (1979):

The Supreme Court recognized the inhumane and barbaric conditions of the undertrial prisoners, as revealed through newspaper articles. The Court held that the right to a speedy trial is a fundamental right under Article 21 of the Indian Constitution.

V.C. Shukla v. Delhi Administration (1980):

The Supreme Court upheld the validity of special courts to try public officials and clarified that the basic structure doctrine applied only to constitutional amendments, not ordinary laws.

Bhagalpur Blinding Case (Khatri v. State of Bihar, 1980):

The Supreme Court ruled that Article 21 guarantees the right to free legal aid and the right to be represented by a lawyer, mandating the production of arrested persons before a magistrate within 24 hours.

Fertilizer Corporation Kamgar Union v. Union of India (1981):

The court denied petitioners' challenge to retrenchment due to plant sale, holding that no fundamental rights were violated and reaffirming that Article 32 petitions must involve fundamental rights.

Asian Games Case (PUDR v. Union of India, 1982):

The court ensured that temporary workers involved in construction for the Asian Games were entitled to labor protections under Article 32.

Judicial Overreach

“The line between judicial activism and judicial overreach is a thin one…A takeover of the functions of another organ may become a case of overreach” -Dr. Manmohan Singh

Judicial activism has been essential in holding the executive accountable for its constitutional duties, evident in landmark cases. However, judicial overreach occurs when the judiciary encroaches on the functions of the legislature and executive, which can disrupt the balance of power among branches of government.

While judicial intervention is vital in areas like labor rights and environmental protection, overstepping in fiscal policy or political affairs can undermine the effectiveness of other branches.
Justice J.S. Verma highlighted that the judiciary should ensure designated authorities fulfill their duties rather than assume their roles. Maintaining legitimate judicial review is crucial to preserving the separation of powers, a cornerstone of a functioning democracy.

Instances of Judicial Overreach in India

The National Anthem Case: Shyam Narayan Chouksey v. Union of India (2018):

In this landmark ruling, the Supreme Court mandated that cinema halls must play the National Anthem before screenings, requiring all attendees to stand in respect. The court ordered that the entry and exit doors be closed during this time and that the National Flag be displayed on the screen. This decision overlooked prior judgments in the Bijoe Emanuel and Uphaar Tragedy cases, which emphasized that cinema hall doors should remain open under all circumstances.
- Furthermore, this ruling contradicted the Prevention of Insults to National Honour Act, 1971, which prohibits the use of the National Anthem in performances or shows.

NJAC Bill and the 99^th Constitutional Amendment:

The Supreme Court declared the 99th Amendment and the National Judicial Appointment Commission (NJAC) Act unconstitutional, which aimed to make judicial appointments more transparent by including both judges and non-judges. The court rejected the government's request to escalate the case and sought suggestions for reforming the existing collegiate system, thereby overstepping its boundaries in this process.

Jolly LLB II Case (2021):

In response to a writ petition alleging that the film portrayed the legal profession derogatorily, the Bombay High Court appointed a three-member committee to review the movie. This was deemed unnecessary, as the Board of Film Certification already had the authority to censor films. Following the committee's recommendations, scenes were removed, which was viewed as a violation of Article 19(2) of the Indian Constitution, guaranteeing the right to freedom of speech and expression.

Liquor Ban on Highways:

The Supreme Court issued a ban on the sale of liquor within 500 meters of national and state highways as part of a Public Interest Litigation (PIL) on road safety. This ruling faced criticism for lacking substantial evidence linking the liquor ban to reduced road fatalities, resulting in significant revenue losses for state governments and jeopardizing employment in the affected sectors.
- It is argued that road safety issues were administrative matters better addressed by the executive, highlighting judicial overreach.

Criticisms of Judicial Overreach

Violation of Separation of Powers:

Judicial overreach undermines the essential doctrine of separation of powers, where the functions of the legislature, executive, and judiciary are distinct. This encroachment allows for the creation of judge-made laws, which is an abuse of constitutional authority.
- The Supreme Court has ruled that writs of mandamus cannot be issued to compel legislative action, indicating that the judiciary should not create rights or liabilities absent in existing laws.

Lack of Accountability:

The expansion of judicial jurisdiction raises concerns about potential abuse of power. Transparency and accountability are crucial in a democracy, and the judiciary must also adhere to these principles. Failure to do so undermines the checks and balances within the government.

Judicial Instruction vs. Legislative Prerogative:

There is a delicate line between the judiciary instructing the executive to act and dictating how to do so. Such interventions often pertain to technical or economic matters beyond the judiciary's expertise, raising concerns about the appropriateness of such decisions.

Lack of Expertise:

Judges may lack the necessary knowledge or expertise to make informed decisions on complex policy issues, potentially resulting in poorly considered rulings that overlook critical factors.

Erosion of Public Trust:

Perceptions of judicial overreach can diminish public confidence in the courts and the legal system. If the judiciary is viewed as exceeding its authority or acting in a biased manner, it can harm its legitimacy and trustworthiness.

Judicial Restraint: The Need of the Hour

Judicial restraint emphasizes a cautious approach, where the judiciary avoids overstepping its boundaries and defers to the elected branches of government whenever possible.The Supreme Court has repeatedly emphasized the importance of judicial restraint in maintaining the balance of power among the legislative, executive, and judicial branches in a democracy.

One prominent example of this is the Supreme Court's handling of the Ayodhya dispute in the Ram Janmabhoomi-Babri Masjid case (2019). The Court demonstrated restraint by relying on historical and archaeological evidence to make its decision, prioritizing communal harmony and peace in its judgment.
Another instance is the Indian Medical Association v. Union of India case (2011), where the Court recognized the expertise of the executive and legislative branches in regulating medical education. By doing so, it refrained from excessive interference, highlighting the importance of respecting legislative policy decisions.
In the case of Divisional Manager, Aravali Golf v. Chander Hass & Anr. (2007), the Supreme Court emphasized the importance of judicial restraint among subordinate courts. The Court underscored that each branch of government must respect the others in accordance with the doctrine of separation of powers. It outlined two key functions of judicial restraint:
- Promoting Equality: Judicial restraint serves to encourage equality among the three branches of government by minimizing interference from the judiciary in the functions of the legislature and executive.
- Safeguarding Independence: It also plays a vital role in protecting the independence of the judiciary.
Former Chief Justice of India, Justice A.S. Anand, addressed the concept of judicial restraint in a public lecture, asserting that judges should exercise self-discipline in their judicial duties.
- He warned that one of the most significant drawbacks of judicial activism is its unpredictability, noting that there may be instances when judges issue directions based on personal preferences. To prevent judicial activism from devolving into what he termed "judicial adventurism," which represents an extreme form of activism, judges must prioritize judicial restraint.

Steps to Achieve Judicial Restraint

Ensuring Accountability:

It is essential to hold judges accountable for their decisions, ensuring transparency in their reasoning and methodologies. This accountability can be reinforced through rigorous judicial review processes.

Adhering to Codes of Conduct:

Implementing robust judicial codes of conduct and ethics is crucial for maintaining impartiality. Such codes help ensure that judges uphold principles of judicial independence and integrity.

Increasing Diversity in the Judiciary:

Promoting diversity and inclusivity within the judicial system is vital. This can be achieved by ensuring that the composition of the judiciary reflects the community it serves and by adopting a more transparent process for selecting judges.

Conclusion

In India, the judiciary has played a vital role through activism, particularly via Public Interest Litigations (PILs), restoring rights for marginalized communities and supporting progressive social policies. This has earned the judiciary significant respect from citizens. However, maintaining the principle of separation of powers is crucial in a democracy. This balance requires the executive and legislative branches to be vigilant while the judiciary must exercise caution to avoid overstepping its boundaries.

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