Volume 4, Issue 2, 2021

Journal of
DOI (Journal): 10.37591/JCLJ

Constitutional Law and Jurisprudence

http://lawjournals.celnet.in/index.php/Jolj/index

Research JCLJ

Judicial Overreach in India

Sarthak Kapoor*

Abstract
For our democracy, the judiciary serves as a watchdog. It is the protector of human rights. It is
critical for such a body to be involved in safeguarding citizens' rights. As society evolves it becomes
more active by taking on situations involving children. In a suo moto action, a basic right has been
violated. The primary goal of judicial activism is to protect the rights of people who are victims of
injustice. Ensure that all people are treated with fairness and equality. Such choices should not,
however, be made by the judiciary. Obstructing or interfering with the executive and legislative
functions this intrusion is unwelcome. “Judicial overreach" is a term used to describe when a judge
goes too far in a number of cases, judicial activism has played a role. Judicial overreach and the
judiciary in their current state.

Keyword: Human rights, judicial overreach, judicial activism, judiciary, democracy

INTRODUCTION
India has divided the functions of drafting laws, enforcing laws, and interpreting laws into three
separate institutions: the legislative, executive, and judiciary, all of which operate within their
respective authorities. However, we know that such a distinction is not absolute, and the three organs
are not segregated into separate compartments that are watertight. It is unavoidable for one organ to
rely on the other. To prevent any encroachment, each organ has the authority to maintain checks and
balances over the other. The judiciary has the authority to assess the Executive and Legislative
branches of government to verify that they are acting within the bounds of the Constitution. It has the
power to overturn any law.

The origins of judicial activism and its methods are not established by the constitution or any other
authority. Suo moto (Latin for "on its own") and Public Interest Litigation are two ways the court
handles cases. The Supreme Court needed to broaden its authority and issue instructions to the
administration and legislature as office holders grew less representative of the people's wishes. Suo
moto cases and PILs overturned the idea of locus standi, allowing the judiciary to hear public cases
even if the injured person had not filed a formal complaint. When this approach goes too far, it
becomes judicial overreach since it interferes with the executive and legislative powers.

STATEMENT OF PROBLEM
If there are numerous legal obstacles standing in the way of justice, the judiciary should preserve
constitutional ideals, rights, and interests of
*Author for Correspondence citizens. The concept of judicial activism was born
Sarthak Kapoor
E-mail: sarthak.kapoor@law.christuniversity.in as a result of this. However, judicial overreach has
intensified as the judiciary's activist role has
Student (3rd year Law), Christ (Deemed to be University)
Delhi NCR, Ghaziabad, Uttar Pradesh, India grown.

Received Date: October 25, 2021 Its acceptance may jeopardise effective
Accepted Date: November 01, 2021
Published Date: January 01, 2022 government. As a result of courts' overreach,
tensions between the judiciary and the executive
Citation: Sarthak Kapoor. Judicial Overreach in India.
Journal of Constitutional Law and Jurisprudence. 2021; 4(2): have risen. The goal of this study is to find
25–30p. appropriate solutions to the issue mentioned above.

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Judicial Overreach in India Sarthak Kapoor

RESEARCH GAP
The research papers listed above go into great detail regarding how "judicial overreach" violates the
theory of separation of powers and has a negative influence on democracy's functioning, but they
don't offer practical solutions. The question of how the judiciary should be restrained and how it
should ensure that it does not breach the "line" is not answered in a realistic way.

RESEARCH QUESTIONS
 When does judicial activism take the form of judicial overreach?
 What are the concerns relating to judicial overreach?
 What can be done to prevent judicial overreach?

RESEARCH OBJECTIVE
 To critically examine the judiciary's overreach into legislative and executive concerns.
 Make recommendations for effective ways to restrict and prevent judicial overreach.

CONCEPT OF JUDICIAL ACTIVISM

It's inconceivable to conceive courts that aren't active. Rather than standing by and watching, the
judiciary has always worked to protect citizens' rights and well-being. It is obligated to do so as a
result of executive and legislative actions and inactions that deprive residents of basic freedoms such
as the right to life, livelihood, sleep, and a clean environment, among others. Because of budgetary
limits and social position, the judiciary must assume the role of activist and choose for suo moto
action, or else the marginalised and vulnerable elements of society would not be adequately
represented. These factors make it difficult for justice to be served. Regardless of these limitations, it
is the court's responsibility to ensure that justice is affordable and accessible to all. It empowers
judges to adopt their own interpretation in certain instances, rather than strictly following to the exact
terms of the law.

HISTORY OF JUDICIAL ACTIVISM IN INDIA

In an 1893 Allahabad High Court case, a judge offered a dissenting decision, which was the first
instance of judicial activism. The case featured a defendant who lacked the financial means to hire a
lawyer. The court had to decide whether to decide the case solely on the basis of the papers he had
submitted. A case can only be heard when someone speaks, according to the judge. As a result, he
established the groundwork for judicial activism in India. During Indira Gandhi's rule in the late
1960s and early 1970s, the doctrine of judicial activism grew even more. The government's
abolishment of Privy Purses and privileges granted to monarchs and princes of princely states, as well
as the nationalisation of 14 banks, did not sit well with the judiciary, who found the law illegal. The
court's confirmation of the quality of judicial review captures the heart of judicial activism. The court
stated in A.K Gopalan v. State of Madras [1] that judicial review is inherent in the Constitution. Even
if it is not present, a court has the ability to declare a legislative act unconstitutional if it breaches a
basic right. While dealing with the constitutional legitimacy of the 17th amendment, the court in
Golaknath v. State of Punjab [2] found that Parliament cannot change Part III of the constitution or
take away any basic right. In the case of Keshavananda Bharti v. State of Kerala [3], the Supreme
Court ruled that Parliament cannot change the basic structure's contents. The Bhagalpur Blinding case
[4] concluded that under Article 21, the poor have the right to free legal aid and representation by a
lawyer, and that the accused must appear in front of the magistrate within 24 hours. The court in
Balaji v. State of Mysore [5] held that, while backward classes are entitled for protective
discrimination, the right to equality and equal protection of the law must not be denied. The court
concluded in the Asian Games case [6] that workers recruited on a temporary basis for construction
services were entitled to protection under the relevant labour and industrial legislation and could seek
implementation under article 32. These are only a handful of the examples that led to the emergence
and growth of judicial activism in India.

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Journal of Constitutional Law and Jurisprudence
Volume 4, Issue 2

WHY JUDICIAL ACTIVISM?

Failure of the Legislature and Executive in Discharging its Functions
Legislative power is completely vested in the legislature. However, due to rampant corruption,
personal interests taking precedence over the exploitation of the masses, such a separation of authority
between the three organs no longer holds water in today's environment. The legislative process has
devolved into a majority rule rather than a rational process, and as a result, it fails to meet the goals of
justice. A democracy loses citizens' faith and confidence when the legislature fails to implement
appropriate legislation in light of the changing character of society and government agencies do not
carry out their responsibilities honestly. It is only acceptable for the judiciary to play a constructive
role in such extraordinary circumstances.

Pressure to Aid Citizens in Case of Fundamental Right Violation

When the government, its agencies, or any other third party abuses citizens' fundamental rights,
judges may intervene to help them. When citizens' rights and interests are in jeopardy, they turn to the
judiciary for assistance. The judiciary is constantly under pressure to give such assistance. On several
occasions, the courts have promoted and begun PILs by lowering the need of locus standi, adopting an
adversarial form of litigation, and assuming the role of an investigator, counsellor, and monitoring
administration.

Failure of Legislature to fulfill all Societal Needs

Despite the fact that there are several laws covering a wide range of themes, there are still certain
legal issues that remain unresolved. This is due to a lack of awareness about such concerns, as well as
the legislature's lack of interest and disinterest. The court engages in judicial legislation when the
legislature fails to enact legislation that is necessary to address the needs and desires of society.

Public Confidence in the Judiciary

The public's faith and confidence in the judiciary inspires the courts to go above and beyond their
mandate and fight for their rights. Citizens trust the judiciary to protect their rights as the custodian of
fundamental rights.

Role of Individual Players

Individuals and NGOs such as human rights activists, consumer rights organisations, environmental
action organisations, women's rights organisations, civil rights activists, lawyer-based organisations,
and so on are responsible for supporting judicial activism [7]. Individually, some judges have paved
the way for judicial activism.

BUT ARE JUDGES OVERREACHING?

“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 over-reach”
-Dr.Manmohan Singh

The Supreme Court had taken over legislative and executive duties, according to the Prime Minister
at the time. There have been numerous instances where the courts have arguably overstepped their
bounds and ordered the executive to carry out its responsibilities. While this may be beneficial, it is
contrary to the Constitution's order. Judicial action can be proactive in circumstances like labour
policy, environmental and ecological issues, and so on, but when it intervenes in subjects like the
government's financial policies, political affairs, or even legislative proceedings, it commits judicial
overreach.

Judicial overreach occurs when judicial activism exceeds its scope and appropriates judicial
adventurism. The following are examples of recent judicial overreach in India:

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Judicial Overreach in India Sarthak Kapoor

The National Anthem Case- Shyam Narayan Chouksey v. Union of India [8]:
The Supreme Court mandated that the National Anthem be played before a film begins, and that
everyone in the audience stand up to demonstrate their respect. While the National Anthem is being
played, the entry and exit doors should be closed, and the National Flag should be displayed on the
screen. The court ignored the precedent-setting Bijoe Emanuel and Uphaar Tragedy cases, in which
the court ruled that a cinema hall's doors should never be shut. It was in violation of the 1971
Prevention of Insults to National Honour Act, which states that no film, drama, or television
programme may include the National Anthem as part of the programme.

Lodha Committee Report on the Board of Control for Cricket in India

The Lodha Panel was established by the Supreme Court after the BCCI was accused of corruption,
match fixing, and betting. The panel backed the inclusion of the BCCI under the RTI, the legality of
cricket betting, and the recommendation that ministers and government employees not hold office
posts, one post per individual, and other recommendations. Because BCCI was classified under the
Tamil Nadu Societies Act, got no government money, and was not regulated by the central or any
state government, it was a case of judicial overreach.

The autonomy of sporting organisations must be protected. Interference from the outside is
detrimental to their development. The court dismissed the fact that India had teams competing in the
Ranji Trophy from Railways and Services because of the one-state-one-rule. This stringent
geographical territory restriction eliminates Mumbai, Baroda, and Saurashtra, among others.

NJAC Bill 99th Constitutional Amendment

The most contentious instance of overreach has been the Supreme Court's decision to declare the
99th amendment and the National Judicial Appointment Commission Act 2014 unconstitutional and
unlawful in order to replace the collegiate system. The government's request to appeal the case to a
higher court was denied, although the Supreme Court accepted recommendations to improve the
current collegiate system. The NJAC oversees judicial appointments and guarantees that they are
made in an open and transparent manner. The commission that chooses judges is made up of an equal
number of judges and non-judges, ensuring that power does not rest only with the judiciary or the
political class.

Judicial Overreach Negatively Impacts a Government in the following ways

Violation of the doctrine of separation of powers
A government's powers and functions should be distributed among three organs: the legislative, the
executive, and the judiciary, with suitable checks and balances in place. However, judicial activism
has allowed for the creation of judge-made legislation, which is an abuse of constitutional power.

Rule of Court is Detrimental

The rule of law is aided by judicial activism. However, “judicial populism” [9] occurs when a court
goes too far. Judges are not supposed to make laws; rather, they are expected to determine their real
meaning, which would otherwise result in chaos.

Lack of Accountability
The judiciary's expanded authority is a source of concern because it allows for power abuse. For a
democracy to work, transparency and accountability are essential; the judiciary must likewise be
transparent and accountable. Unfortunately, this is not the case, as it undermines the system of checks
and balances.

CRITICAL ANALYSIS
When judicial activism is overt, it encroaches on the legislative and executive powers. The
Supreme Court has ruled in several decisions that courts cannot issue a writ of mandamus to the

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Journal of Constitutional Law and Jurisprudence
Volume 4, Issue 2

Legislature. Judicial activism is the source of the judiciary's legislative power. It cannot be used to
cover legislative gaps or create rights and obligations that are not provided by law. “The judiciary is
the least competent body to act as a legislative or administrative agency since it lacks the ability to
conduct thorough investigations. It lacks the ability to monitor the consequences/effects of its
directives and judgments, or to reverse them if they need to be modified or are deemed unworkable.”
14 PILs' social dimension has diminished. It has been noticed that, in today's world, the court's
intervention does not enforce the poor's rights, but rather corrects the actions/omissions of the
executive, public authorities, or government entities.

The court has ordered the prohibition of black films in automobiles, the exclusion of tourists from
particular regions of tiger reserves, the banning of firecrackers, the control of loudspeakers, and the
interlinking of rivers, all of which obviously fall under the executive function. The Supreme Court has
had no qualms about interfering with the country's military actions. The outcome of the case had a
significant impact on the operations.

It violates the spirit of our constitution, as India adheres to the division of powers, and it causes
tensions between the judiciary and the legislative. The legislature is depicted as a dormant entity.
Even where there is no such breach, courts are more interested in engaging in public policy problems
in the name of judicial activism or fundamental rights violations. Judicial overreach undermines the
exact reason why the concept of judicial activism was created in the first place: to increase public trust
in the court.

It is a waste of the court's time and just adds to the backlog of cases when that time could be better
spent hearing significant concerns that affect the public good. The judge's partiality or selfish motives
have a tendency to impact the decisions made. People's faith in the government's efficiency and
honesty is eroded by the judiciary's repeated interventions.

“There is a narrow line between ordering the executive to do something and instructing the
executive on how to do something,” says the judge. There is a risk that courts will engage in the latter
because, in a broad sense, such judgments should be left to the legislative and administration, and in a
limited sense, the subject matter sometimes entails technical or economic considerations that are
outside the judiciary's expertise”. The policies of the government are continually scrutinised by the
courts. The court kept an eye on the distribution of food grains to persons living in poverty.

In the case of the 2G licence, all public resources and assets were kept in trust and could only be
sold at a public auction. The judiciary has entirely ignored the constitution's division of powers and
has assumed the role of a watchdog over all other bodies of government. One decision becomes the
typical finding in subsequent cases, resulting in overreach. It limits the legislature's ability to make
laws. The judiciary's answer to overreach is that it is obligated to do so because the legislature and
administration fail to fulfil their responsibilities.

By the same rationale, the political arms of government allege that the court has failed to satisfy
public expectations in numerous areas and that it must be checked on a frequent basis. This debate
might go on indefinitely. As a result, unless PILs are properly established and followed, they will
intrude into the government's other divisions.

CONCLUSION
A proper judicial intervention is one that falls within the judicial review's allowed parameters. The
judiciary has no jurisdiction over matters of government policy or politics that do not involve essential
legal issues. When the government fails to fulfil its obligations, such as environmental degradation,
sexual violence, educational reforms, and corruption, the judiciary might intervene to protect the
citizen's interests by issuing a writ of mandamus to the responsible public body. However, there is a

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Judicial Overreach in India Sarthak Kapoor

fine line between judicial activism and overreach, which courts must observe. The impression of
citizens is what defines activism as overreach.

As a result, it becomes more difficult to govern, giving courts even greater cause to exercise caution
in suo moto cases. It is found that the judiciary was not established to address the government's faults.
It is critical that the judiciary be fair, independent, and above all, constrained.

RECOMMENDATIONS
The judiciary must be conscious of the fine line that exists between judicial activism and overreach.
Separation of powers doctrine should be scrupulously adhered to. The government should implement
new techniques to hold the courts accountable and ensure openness. The legislative should strive to
avoid leaving any gaps in the legislation, reducing the necessity for judicial scrutiny and intervention.

Above all, the court must attempt to exercise judicial restraint. The Supreme Court has underlined
the significance of restraint in maintaining a balance between the three branches of government on
several occasions. It's a sort of judicial interpretation that encourages judges to keep their power in
check. It only allows them to overturn a legislation if it is completely unlawful. It asserts that the
judiciary does not have the authority to make laws. It will only add to the organization's prominence
and esteem. It recognises the other two organs' equality and limits the judiciary's influence over the
other branches. It also protects the judiciary's independence and complements the theory of separation
of powers. Because an active court cannot deal with instances containing legislative details, it must
apply breaks to personal motives. Courts are not permitted to intervene in economic policy or
government management. A Public Interest Litigation (PIL) cannot cover every topic of public
concern. The judiciary can intervene if the government or its agencies fail to comply with the law or if
people' fundamental rights are violated. When utilising their judicial review power, the judiciary must
adhere to the principle of judicial self-restraint.

REFERENCES
1. 1950 AIR 27
2. 1967 AIR 1643
3. AIR 1973 SC 1461
4. 1982 AIR 1008
5. 1963 AIR 649
6. 1982 AIR 1473
7. The Avatars of Indian Judicial Activism: Explorations in the Geographies of (in) Justice‖ in S.K.
Verma and Kusum, Fifty Years of Supreme Court of India
8. (2017) 1 SCC 42
9. S. P. Sathe, „ Judicial Activism: The Indian Experience‟

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