Our Indian Judiciary is no longer a silent spectator. At times, when the Legislatures and the Executives fail to perform their duties, it's the Judiciary which takes action in the form of judicial review. Sometimes too much of a good thing can be bad and democracy is also no exception. Therefore, Judicial activism is a concept that originated in the USA in 1947 and has been witnessed in India since the Emergency days. This article discusses the difference between Judicial review, judicial activism and judicial overreach, their meanings, criticisms, examples and many more. So, let’s get started.
Judicial Review
Legislatures, one of the organs of the government, is vested with the power to make laws, which is, however, not absolute in nature. Because it does not become absolute that no one can challenge any arbitrary law, a concept known as judicial review came into existence which is the process wherein the Judiciary review the validity of laws passed by the legislature.
Where does the power of Judicial Review come from?
The power of judicial review comes from the Constitution of India itself (Article 13) & it is evoked to safeguard & enforce the fundamental rights under Part III of the Constitution. Article 13 prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country & the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India.
Examples of Judicial Review: Section 66A of the IT Act was struck down as it was against the Fundamental Rights under the Indian Constitution.
Judicial Activism
Judicial activism refers to the use of judicial authority by the Judiciary to define and enforce what is for the benefit of society. Historian Arthur Schlesinger, Jr. coined this term in 1947, and its foundation in India was laid down by Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.
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Judiciary cannot function as legislature, but by the concept of judicial activism, it has successfully brought reforms, new concepts, policies etc.
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However, too much interference by the Judiciary in this process will become judicial overreach. Let’s understand this concept with the help of a few examples.
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Examples of Judicial Activism-
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Mechanisms with no constitutional backing like Public Interest Litigation, not proposed by the Legislature, but the Judiciary came up with this concept. It has strict locus standi; anyone can file PIL, which is filed in the form of writ petition but only in the High Courts and Supreme Court.
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Appointment of Judges by the Collegium system in which senior most Judges appoints another Judge is considered judicial activism by the Judiciary.
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Reforms in Cricket: The Supreme Court has been trying its best to restructure the Board for the Control of Cricket in India (BCCI) although, the BCCI is a private body. SC had also set up a Mudgal committee and the Lodha Panel to investigate the betting charges and suggest reforms which must be adhered to.
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SIT on Black money: The Supreme Court ordered the UPA government to set up Special Investigation Team (SIT) to investigate black money. Though the UPA government did not take action on this decision, the NDA government has now fulfilled the task.
What are cases on Judicial Activism?
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Maneka Gandhi v. UOI (1978), The court iterated the term 'procedure established by law' under Article 21 of the Constitution by repositioning it as 'due process of law' meaning that the procedure which is established by the law must be just, fair and reasonable. It is the legal requirement that the state must respect all of the legal rights owed to a person.
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Kesavananda Bharati case (1973): The Supreme Court of India declared that the executive had no right to interfere and tamper with the basic structure of the constitution.
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Sheela Barse v. State of Maharashtra (1983): A letter by a Journalist addressed to the Supreme Court addressing the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognisance of that matter.
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I. C. Golaknath & Ors vs State Of Punjab & Anr. (1967): The Supreme Court declared that Fundamental Rights enshrined in Part III are immune and cannot be amended by the legislative assembly.
Criticism of Judicial Activism
It created a controversy over the supremacy between Parliament and Supreme Court. It is alleged to disturb the delicate principle of separation of powers & checks and balances.
Judicial Overreach
There is a very thin line between Judicial activism and Judicial Overreach. In layman's term, when Judicial activism surpasses its limits and becomes Judicial adventurism, it is known as Judicial Overreach. When the judiciary oversteps its powers, it may intervene with the proper functioning of the legislative or executive organs of government.
Where does the power of Judicial Overreach comes from?
The answer is nowhere. This is highly undesirable under Indian democracy as there has to be a proper separation of power between the three organs of the government, which even forms the feature of our Indian Constitution. So, it destroys the spirit of separation of powers.
Examples of Judicial Overreach: What makes any action activism or overreach is based upon individual’s perspectives. But generally speaking, striking down of NJAC bill and the 99th constitutional amendment and bringing collegium system for appointment of judges, or the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school or misuse of the power to punish for contempt of court etc. are all considered as Judicial Overreach.
Difference between Judicial Review, Judicial Activism and Judicial Overreach
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Basis
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Judicial Review
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Judicial Activism
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Judicial Overreach
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Meaning
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The process wherein the Judiciary review the validity of laws passed by the legislature
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Interpretation of the Constitution to deal with contemporary issues. It is use of judicial authority by the Judiciary called activism.
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When the judiciary oversteps its powers, it may intervene with the other organ’s proper functioning called overreach
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Goals
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To review the laws which are against fundamental rights.
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It vests the power to overrule any acts or judgments or decisions or bring any reformations etc.
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Undesirable in democracy. Interferes with other organs of the government.
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Intent
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Review the validity of law under Art. 13.
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Use of judicial authority to enforce what is beneficial for the society.
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Tampers with the principle of separation of power and checks & balances.
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Power
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Judges uses their power to protect and enforce the fundamental rights.
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Judges uses their power to correct any injustice especially, when constitutional bodies are not acting properly.
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Judges uses their power in overstepping their limits.
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Example
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Striking of Section 66A of the IT Act etc.
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Suo motu cases, Introduction of Public Interest Litigation etc.
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Striking of NJAC Bill, banning liquor on highways etc.
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Judicial Restraint
A concept under which the judges power is limited to strike down a law as the proponents of judicial restraint have mostly stated that the Supreme Court has taken the position of the Legislature through its activism. It has also been argued that the Supreme Court has obviously overstepped its bounds of the other parts of government. In Judicial restraint, Judges should look to the original intent of the writers of the Constitution.