The judicial system in India follows a rigid hierarchical system in which the Indian Constitution is the supreme legal document, the apex court is India's supreme court, followed by high courts at the level of each state and district courts at the smallest level for each district or a mixture of a few districts in each state, depending on the population size.
The Indian parliament has powers to make laws, it is the process by which review of the validity of laws is passed by the legislature.
Judicial Activism Vs Judicial Overreach
The difference between the judicial activism & judicial overreach is very small and sometimes they difficult to distinguish.
When judicial activism crosses its limits, it becomes judicial overreach. In simple terms, when judiciary starts interfering with the proper functioning of the legislative or executive organs of government.
It is the concept originated and developed in the USA and first coined by Arthur Schlesinger Jr. an American historian and educator in 1947.
Judiciary plays an important role in promoting the rights of citizens and society. That means force to other two organs to discharge their constitutional duties.
This concept of Public Interest Litigation (PIL) is closely related to Judicial Activism. In other words, PIL is the result of judicial activism by the Supreme court.
Justification for it:
- When legislative and executive organ of government fails to discharge their function, so it is good for saving trust collapse of citizens from the constitution.
- Citizens look up to judiciary for saving their rights and freedoms.
- Judicial enthusiasm, judges taking part in social issues and liberating the concept of “Locus Standi”
- For that area in which legislative do not meet social needs.
- The constitution itself gives provisions to adopt an active role by the judiciary.
- Some of the activators of judicial activism are- civil right, people rights, consumer rights, bonded labor, rights of child groups, etc.
- Excessive delegation and expansion of judicial control and judicial review over administration.
Methods of Judicial Activism:
- Judicial review
- Public interest litigation
- Constitutional interpretation
- Access of international statute to ensure constitutional rights
- Supervisory power of higher judiciary on lower judiciary
This is undesirable in any democracy.
When judiciary crosses its own function and enter the legislative and executive function and then it is called judicial overreach.
For example: striking down the NJAC bill and the 99th constitutional amendment bill and order passed by the Allahabad court to making it compulsory for all bureaucrats to send their children to the government school.
What makes an act to judicial activism or overreach is based on the perspective of decision.
Supreme Court observation:
- While delivering a judgment in 2007 court called for judicial restraint and asked the court not to take over the function of legislative and executive because there is a broad separation of power among all the organs in the constitution.
- Judges should know their limits and must not try to run the government and behave like emperors.
- The court must nor embarrass administrative authorities and believe that they are expert in their respective field.
- The bench said that justification is often given as two organs are not working properly so, the same argument can be given against judiciary too.
- If they are not functioning properly it is the job of the citizens to correct it in the next election and vote for a candidate who can fulfill their expectations.
- Judicial restraint is important for the balance of power among three independent branches, firstly by minimizing inter-branch interference by the judiciary and protect the independence of the judiciary.
Making balance among state organs is the condition to run the constitution. Judiciary should be the organ, work for civil rights, freedom and fulfillment of statutory rights and should not overlap with other two organs. Judicial activism is a very effective tool in present time, but it is never desirable domain for all that it crosses its limits and exhaust constitutional principles. That is why the double-edged sword should be used with caution and tactics.
Tussle Between Centre and the Court:
Since 1979, the judiciary has begun to play a more assertive position in the national arena, perhaps not even foreseen by the Constitution's architects. It has become an active participant in the delivery of social justice through the issuance of stringent and corrective actions regarding government, public bodies and authorities’ policies.
It all started in 1979 when the Supreme Court ruled that the undertrials in Bihar jail had already served more pre-trial detention period than they would have served.
Similar rulings were subsequently enacted on numerous violations of human rights, such as stone quarry bonded labourers in Agra, the plight of prisoners, etc.
However, the apex court rulings have begun to correct the behavior or omissions of the executive or public officials or departments of government or public bodies, rather than merely implementing the freedoms of the disadvantaged or poor segments of society in latest times.
Some examples are: Supreme Court ordered control of car emissions, air, and noise, and traffic pollution, ordered parking fees, wearing helmets in towns, cleanliness in residential colonies, disposal of trash, traffic control in New Delhi, ordered seat belts to be worn, ordered action plans to monitor and deter monkey threats in towns and cities, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college fresher’s, for collection and storage in blood banks, for control of loudspeakers, banning of firecrackers, etc.
The court issued such orders on the basis of its power under Article 32 of the Constitution to safeguard and implement the fundamental rights of the people.
However, as would be observed from the above examples, no fundamental rights of individuals or any legal issues are at all involved, and these clearly fall in the domain of administration.
The latest judgments of the Supreme Court overturn the decision of the Executive to appoint P.J. Thomas as the Central Vigilance Commissioner (CVC) and the establishment of a team to monitor the investigation into black money stashed abroad, the judiciary appears to have invaded the Legislature and the Executive domain.
What must, therefore, be seen is that this ' judicial governance ' disturbs our parliamentary democracy and nullifies the doctrine of the separation of powers enshrined in our Constitution.
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