A TRANSITION FROM JUDICIAL ACTIVISM TO JUDICIAL OVERREACH- A MYTH OR REALITY

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JUDICIAL ACTIVISM: AN UNDEFINED FICTION

“A Constitution states or ought to state not rules for passing hour but principles of expanding future- Benjamin N. Cardozo

Today in the sphere of modern sciences the ambit and sphere of judicial activism have cast light on each and every aspect of human life ranging from the issue of human rights, fundamental rights to the overall development and proving a fair opportunity to every individual. Judicial activism means power in the hands of the court (Supreme Court/High Courts) to declare the law made by the Parliament unconstitutional or void on the ground that if the law enacted by the Parliament/Legislature is inconsistent with Part III of the Indian Constitution. Black law dictionary defines ‘judicial activism’ “as a means of judicial philosophy of judicial decision making whereby the judges allow their personal views about public policy among other factors to guide their decision”. In simple language, the term judicial activism means the dynamic, innovative and law-making role of the court in which court played a positive role exhibiting the term to be called judicial activism. Professor Upendra Baxi defined the term judicial activism as the way of exercising judicial power which seeks fundamental re-codification of powers and relations among the dominant institutions of state named by the members of the ruling classes. The concept of judicial activism is based upon two models. One model is the one in which judge’s act merely as technocrats and holds the law or act invalid on the ground if such act is ultra-vires or infringes the rights prescribed under Part III of the Indian Constitution. The second model of judicial activism is based on the power of the court to interpret the provision of the Constitution in the light of such facts to keep the Constitution intact. The court giving a new interpretation to the provision of any action so as to suit the changes as per economic and social needs and conditions of the society thus, thereby expanding the ambit of the individual rights as a part of the super activist role of the court. 

WHY JUDICIAL ACTIVISM? - DIMENSIONAL ANALYSIS OF JUDICIAL ACTIVISM

  1. NEAR COLLAPSE OF RESPONSIBLE GOVERNMENT- when the other branches of the government i.e. legislature and executive fails to discharge the functions it gives rise to the near-collapse of the responsible government. Since it a fact that a responsible government is the hallmark of a successful democracy and constitutionalism its collapse may invite drastic and unconventional step and in such extraordinary circumstances the judiciary steps into such areas to earmarked the legislature as well the executive. In Keshvanand Bharati v. State of Kerala popularly known as fundamental Right’s case in which 13 Judge Bench dealt with the constitutionality and validity of 24th and 25th Amendment Act 1971. The principal question before the bench was whether the decision in the Golak Nath’s case was to be upheld or to be overruled. It is pertinent to observe that the court does not define what constitutes the basic structure of the Indian Constitution, but instead of that they illustrate the basic structure embodied in the constitution and they are:

  • The Supremacy of the Constitution

  • Republican and democratic form of government

  • Secular character of the Constitution

  • Separation of power between the legislature, Executive and Judiciary

  • Federal Character of the Constitution

  • Sovereignty of India

  • Fundamental Freedom and Fundamental Rights under Part III of the Constitution 

  1. JUDICIARY TO STEP IN FOR AID: In case the fundamental rights of the citizens are infringed or trampled by the government the judges make take themselves the task for providing aid in such ameliorating circumstances or conditions of the individual or the citizen. In the case of Maneka Gandhi v Union of India which is also known as a watershed in the Indian, Judicial Activism is amongst one of those revolutionized which gives various facet to the Article 21 of the Constitution which guarantees right to life and personal liberty.

  2. FILLING THE LEGISLATIVE VACUUM: It is said that it is the Parliament and the state legislature which is entrusted and concerned with the function to make law but the quantum of the making of such law cannot be sufficient to the needs of the changing society. Thus when the legislature fails to act legislatively and fails to meet the societal needs it is the judiciary that encroaches upon the domain of the legislature. The apex court in a number of its ruling stated that the Parliament could not amend the Constitution so as to take away the fundamental rights.  

  3. PUBLIC CONFIDENCE IN JUDICIARY: The greatest and the strongest asset in the hands of the judiciary is the confidence which commands the faith of public confidence in the judiciary to provide justice and keep the balance of scale between the dispute referred to the court. The Supreme Court in the case of Sakal Newspaper Private Limited v. Union of India held that a newspaper was not a business but it was a vehicle of thoughts and information and therefore could be regulated by any other business. In another case the Supreme Court held that the Constitution in Article 21 has used the word personal liberty which has a definite connotation in law and that the personal liberty stating that it means a personal liberty not to be subjected to imprisonment, detention, arrest or physical coercion in any manner that does not admit of legal justification. 

  4. ENTHUSIASM OF CITIZENS: Professor Upendra Baxi, points out that enthusiasm of citizens to act as a single-player by being civil right activist, consumer group activist, an activist of bonded labor, women rights activist, etc. have laid down the foundation stone of judicial activism in India with this regard. Recently the country has seen beneficial judicial activism to a greater extent. Starting from the case of Indian Young Lawyer Association & Ors. V. State of Kerala & Ors., Joseph Shine v Union of India, Justice K.S Puttaswamy (Retd.) & Anr. V. Union of India, Navtej Singh Johar, and Ors. V. Union of India and Atiya Sabri v. Union of India are the aspects of Judicial Activism of recent times. It cannot be disputed that Judicial activism had done a lot to ameliorate the conditions of the masses of the country. It has set a number of rights and wrongs committed by the states on their individual. The common masses are very often denied the protection of law due to the delayed functioning of the courts also called judicial inertia and judicial tardiness.

JUDICIAL ACTIVISM OVER JUDICIAL OVERREACH

The line between judicial activism and judicial overreach is a thin one. A takeover of a function of one organ over the other organ may become a case of overreach. – Dr. Manmohan Singh 

The line of conflict which is always drawn is that whether independent judiciary in exercising the function of judicial activism is not exceeding to have judicial overreach to the powers of the other organs of the government namely as Legislature and Executive. The former Prime Minister of India says that Supreme Court is accused of having judicial overreach and taking over the functions of Legislature and Executive. There have been several examples as set by former Prime Minister where the apex court taking the plea of judicial activism have crossed the line and interfered in the functioning of other organs of the government. In the case of Delhi sealing drive case, the former Prime Minister was of the opinion that Supreme Court by taking the plea of judicial activism and independence of Judiciary has crossed its power and interferes in the functioning of the executive.

But in the view of mine, Neither the Independence of Judiciary and nor the Judicial Activism hampers the functioning of other organs of the government. Judiciary has been tagged with the titles ‘Protector and Harbinger of human life’ and with ‘watchdog’ which aims to check the arbitrary powers of the other organs of the government. If judiciary was not independent will it able to exercise and provide justice to the citizens of India? Whether the objectives enshrined under the Constitution would be able to achieve. Why judicial activism is said to have judicial overreach, just because it interferes with the functioning of other organs of the government. But nobody looks to the protective role that is being played by the Judiciary that it is the overreaching power of the judiciary that it has been able to provide justice to the citizens which earlier was too far to seek.