Mains Marathon

Approach

Define the terms Judicial activism and Judicial overreach. Differentiate between both the terms. Also, Provide the relevant examples of Judicial activism and Judicial overreach. Also, mention their significance. Conclude with a balancing approach.

Answer:

Judicial activism refers to the tendency of judges to use their judicial power to protect or expand individual rights, social justice, or public interest, even if it means going beyond the letter of the law or the original intent of the constitution. Judicial overreach, on the other hand, refers to the situation when judges exceed their constitutional authority and interfere with the proper functioning of the legislative or executive branches, or encroach upon the domain of policymaking.

Judicial activism is generally seen as a positive and progressive phenomenon, as it enables the judiciary to act as a check and balance on the other organs of government, and to uphold the rule of law and human rights. Judicial overreach, however, is considered as a negative and regressive phenomenon, as it undermines the principle of separation of powers and democratic accountability and creates legal uncertainty and instability.

Some examples of judicial activism in India are:

• The invention of the ‘basic structure doctrine’ in the Kesavananda Bharati case (1973), by which the Supreme Court asserted its power to review any constitutional amendment that violates the essential features of the constitution.
• The introduction of public interest litigation (PIL) as a mechanism to enable any citizen or group to approach the courts for enforcing constitutional or legal rights of any person or class of persons who are unable to do so themselves.
• The expansion of the scope of Article 21 (right to life and personal liberty) to include various socio-economic rights such as right to education, health, environment, livelihood, etc., through various landmark judgments.
• The development of the collegium system for appointment of judges to the higher judiciary, as a way to ensure judicial independence and integrity.

Some examples of judicial overreach in India are:

• The imposition of patriotism in the National Anthem case (2016), where the Supreme Court made it mandatory for all cinema halls to play the national anthem before every movie screening, and for all present to stand up and show respect.
  • However, this order was later reversed in a subsequent judgment.
• The ban on firecrackers during Diwali (2017), where the Supreme Court prohibited the sale and use of firecrackers in Delhi-NCR region, citing environmental and health concerns.
• The order on police reforms (2006), where the Supreme Court issued directives to the central and state governments on various aspects of police administration, such as security of tenure, selection process, accountability mechanism, etc., without any legislative backing.

The significance of judicial activism and judicial overreach in maintaining the balance of power:

• Judicial activism is significant because it helps in filling the gaps or correcting the failures of the other organs of government, especially when they are unable or unwilling to perform their constitutional duties. It also helps in protecting and promoting the fundamental rights and values enshrined in the constitution, and in responding to the changing needs and aspirations of society.
• Judicial overreach is significant because it poses a threat to the balance of power among the branches of government and may lead to a situation where one organ dominates or dictates over others. It also erodes the legitimacy and credibility of the judiciary, as it may be seen as acting arbitrarily or politically.
  • It may also create confusion and conflict among different laws and policies and hamper their effective implementation.

Therefore, it can be concluded that while judicial activism is desirable and necessary for upholding democracy and justice, judicial overreach is undesirable and harmful for undermining democracy and justice. The judiciary should exercise its power with caution and restraint, respecting its own limits and boundaries, as well as those of other organs of government.