Judicial activism and Judicial overreach

Note4Students:

There lies a very thin line between the judicial overreach and judicial activism. Considering the recent pronouncements of SC, this topic has become important for mains.

Context

  1. Some time back, it was commented that  judiciary must draw its own ‘Lakshman rekha (inviolable boundary)’ and not take decisions that fall in the domain of executive, highlighting the increasing friction between the judiciary and executive over a perceived overreach by the courts.

What is judicial activism and judicial overreach?

  1. Judicial Review” is the process by which a court reviews the constitutionality of a statue or the application of a statute, and rules either for it or against it on that basis.
  2. “Judicial Activism” is the view that courts make political rather than legal decisions to further some agenda, rather than strictly reviewing the legality of a law under the letter of the law and prior precedent. It refers to the process in which judiciary steps into the shoes of legislature and comes up with new rules and regulations, which the legislature ought to have done earlier.
  3. Judicial Overreach refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by judiciary into the legislature’s domain, often with the intention of disrupting the balance of powers between executive, legislature and judiciary.

What is the need of judicial activism?

Failure of other organs to discharge their duties:

  1. When the other political branches of the government viz. the legislature and the executive fail to discharge their respective functions, it leads to an erosion of the confidence of the citizens in the constitutional values and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive.

Taking proactive steps by the judiciary:

  1. In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens cited as judicial activism.

To fill the vacuum created by other organs of government:

  1. To fill the legislative vacuum and to meet the societal needs, the courts often indulge in judicial legislation thereby encroaching in the domain of legislature.

What does constitution say about judicial activism?

  1. The Indian judiciary has been constitutionally vested with the power of review to keep the Executive and Legislature within constitutional boundaries. The Judiciary can strike down any law that is beyond Parliament’s legislative competence or is violative of the Constitution. Similarly, it can strike down any Executive action, if there is any patent illegality or arbitrariness to it.
  2. While Articles 13, 21, 32, 226 and 227 encompass this power, Article 142 extends a unique, extraordinary power to our Supreme Court to do ‘complete justice’ in any matter before it.

Criticism of this idea:

Disturbs the balance between organs of government:

  1. According to some critics, judicial overreach is upsetting the constitutional balance among the three organs of state – the legislature, the executive and the judiciary.

Viewed as a challenge to basic structure:

The judicial activism, at one point of time, was considered necessary to correct the failings of the legislature and the misdeeds of the executive. But it has now grown into a situation where the idea of separation of powers, which should be considered a feature of the basic structure of the Constitution, is challenged.

Judiciary must perform its judicial functions:

  1. Activism can deteriorate into overreach if the judiciary considers itself the sole custodian of public interest, interprets public interest in its own fashion and seeks to force the legislature and the executive to implement its version of it. Judiciary has only got to interpret the laws and decide whether they conform to the Constitution and not more than that.

Understanding thin line between activism and overreach:

  1. There is a thin line between activism and overreach. While judicial activism is considered positive to supplement the fallings of the executive, but the overreach into the executive’s domain is considered an intrusion into the proper functioning of democracy.
  2. Just as independence of the judiciary is part of basic structure, the primacy of the legislature in policy making is also part of basic structure and interference by the courts into their domain is not justified.

Way Forward

  1. Although,  judicial review is legitimate domain of judiciary but then a limit or boundary has to be drawn. Judiciary, like all institutions in a democracy, should be accountable and know its own limits. It should not become a super parliament that frames laws and a super executive that seeks to implement them.
  2. The quality and speed of the mainstream judicial system can be improved by a comprehensive and integrative approach, focussed on improving judicial infrastructure and reducing indiscipline. Following points define the way in which judicial activism can prove constructive:
  3.  Improving judicial infrastructure
  4.  Develop discipline in the judicial system
  5.  Improve strength of judges
  6. Develop judicial competence, effective case management and use of information technology
  7. Review media role.

Question:

(Q) This is not the first time when questions have been raised on the judicial overreach and activism in India. Is judicial activism when executive is not able to efficiently perform its duties justified? Give arguments.

(Q) Judicial activism and judicial overreach are separated by very thin line, and the judiciary has to be careful of it. If that line is crossed, judicial activism may be  considered an encroachment on legislature? Discuss.

Sources

http://www.thehindu.com/todays-paper/tp-opinion/Judicial-activism-romanticism-amp-overreach/article15177963.ece

http://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece

http://indianexpress.com/article/opinion/columns/arun-jaitley-judicial-activism-supreme-court-2828018/

http://www.livemint.com/Opinion/lPqfldPjTc9t4aBYupFZKK/The-judiciary-is-shifting-the-balance-of-power.html

http://www.livemint.com/Opinion/hB3zoJOiAEKkUd6YUxw0rM/Judicial-boundaries.html

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