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JUDICIAL ACTIVISM – A PRETEXT FOR JUDICIAL OVERREACH

The judiciary was not hesitant to encroach into the military sphere as well when in 1993 it passed guidelines for an ongoing military operation in Srinagar.

Sonakshi Singh, 17 August, 2020 6:58 pm IST, Judicial Activism

The Constitution has divided powers amongst the three branches of the government – the Legislature, the Executive and the Judiciary. The Constitution highlights the separation of powers between these branches.

However, in reality, the functions of these organs overlap a lot of times, making strict separation of powers difficult. While the judiciary may overlap its functions with that of the other organs in balancing the functions of all, it cannot overreach and trample upon the functions of the other organs entirely. 

The most accurate rationale behind curtailing the administrative and legislative powers of the judiciary is the fact that it is non-elected. A non-elected body cannot take away the rights and duties of the elected Parliament.

Therefore, when the judiciary overtakes the functions of either of the other organ in the guise of judicial function, it is nothing but an act of tyranny by the non-elected judiciary over the elected body of the government. While the judiciary is the guardian of the Constitution and a savior of people’s rights, it cannot be tyrant in its sphere so as to exceed its authority and cross over the constitutional limits set by the separation of powers. 

Judiciary is approached by the people to uplift them from the tyranny of the government. The judiciary is supposed to redress the complaints of the people and to suggest executive or legislative action on that aspect, but it cannot itself takeover that function and directly exercise executive or legislative role. This transcendence of constitutional boundary by the judiciary is termed as ‘judicial overreach’. 

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Although the Supreme Court has cautioned the judges from exceeding their authority and calling such act as unconstitutional; in practice, more and more judges are overreaching and taking over the day-to-day functions of the government. For instance, in 2015, the Supreme Court while hearing a case on Delhi pollution issued certain directions to curb the pollution in Delhi. By encroaching upon the executive function, the Hon’ble Court went on to pass directions on the ban of entry of commercial vehicles into the national capital.

In observance of separation of powers, the court should have just issued recommendations to be followed by the government, but instead, it exercised tyranny in judicial sphere and passed executive directions, which is a function of the Executive organ and not the judiciary.

The Executive and not the judiciary is the appropriate organ to issue such directions as the former has the resources and capability of enforcement and assessment of the impact of such directions on the supply of essential goods in Delhi. In the case of Vishaka v State of Rajasthan, the Supreme Court overtook the function of the Legislature and formulated comprehensive guidelines on sexual harassment of women at workplace. 

The judiciary was not hesitant to encroach into the military sphere as well when in 1993 it passed guidelines for an ongoing military operation in Srinagar. The military had restricted food supply in the target area to call out the militants as a strategy. However, the Supreme Court interfered in the operation and ordered the compulsory provision of access to food to such hostages, thereby encroaching upon the authority of the military to carry out its operation for the first time in history.

The most recent example of tyranny of judiciary can be seen in its decision of rejecting the NJAC Act as unconstitutional as it included the Parliament role’s in the selection of judges.   

How is this possible?

Although the judiciary, especially the Supreme Court has been conferred wide powers vide Articles 32, 136, 141, 142 and 144, there is no provision for accountability of the actions of the judiciary. The wide powers which are exercised by the judiciary without the concomitant bounds of accountability have rendered the judiciary as a tyrant.

This enables the judiciary to take bold actions, which the Executive or Legislature cannot take due to their accountability to the public. Due to the lack of expertise and special knowledge, the judiciary quite often passes such directions which are extremely difficult to implement, may be due to budgetary restrictions or other reasons. It hides behind the veil of judicial activism, and covertly interferes with the functioning of the other organs of the Constitution, defended by its non-accountability.

The most blatantly tyrant actions and decisions are taken by the Supreme Court in light of Article 142 which allows it to “make such order as is necessary for doing complete justice”. This has been recently used to pass a decision in favor of Hindu religion in the Ram Mandir case.  

Selective Activism:

Moreover, it is no secret that the Supreme Court rejects more than 90% of the petitions filed under Article 136 without citing proper reasons for doing so. The petitions which it accepts seem to be those which either attract a plethora of publicity and recognition or are important for the political party in power. Why else would the Supreme Court hear the unimportant petition seeking the change of the country’s name official name to ‘Bharat’ rather than hearing more pressing petitions? Here again we see the tyrannical nature of the judiciary.

Conclusion: Is it a boon or a bane?

It is very often argued that the judicial overreach has helped the petitioners to seek better relief than by going through the complex procedure laid down by the separation of powers. However, while it may provide temporary relief, it lays down an unconstitutional precedent for the future generations to follow. Further, since the judges lack resources and expertise to handle executive and legislative functions, it leads to inadequate and superficial relief to the people.

Although the people might consider judiciary as their savior for providing relief to them when the government fails to do so, in reality, the correct solution is to hold the government responsible and not for the judiciary to act as the government itself as it is an unelected body. Furthermore, the executive and legislative functions represent the collective will of the people as they are elected, but when judiciary overtakes these functions, it is often the peculiarities of a particular judge that guide those decisions and actions and not the people’s will.

Through this article, it can be observed that judiciary is becoming tyrant and is interfering increasingly in the separate domains of the Legislature and Executive, thereby disrupting the balance of powers amongst the three organs of the Constitution. It is unconstitutional to shield judicial overreach in the cover of judicial activism or judicial review.

Since judiciary is a constitutional body, it must also be held accountable like other organs and must function within boundaries. If such a breach is allowed, then judiciary will become a super body which will have the capability to make laws, implement them and also to test their constitutionality.

The solution to this is for increasing the accountability of the judiciary and to disallow the frequent overstepping of the judiciary into the functions of the other organs. It is high time that the tyranny of the judiciary is called out as since this body is unelected, there is no check and balance available for the general public. 

In conclusion, it can be said that while the judiciary protects the rights and interests of the people, over exercise of judicial review and activism has disturbed the balance of powers between the organs and proved to be a bane for the people. While the independence of the judiciary is a part of basic structure of the Constitution, such reasons must not be used to impose tyranny on the people, thereby taking away the very spirit of democracy. 

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