Difference Between Judicial Activism And Judicial Overreach
Introduction
In contrast to judicial overreach, which occurs when the court interferes with the legislative and executive branches' ability to carry out their duties, judicial activism refers to the use of judicial authority to define and enforce what is for the interest of society.
Concept of Judicial Activism
A "judicial philosophy that encourages judges to deviate from standard precedents in favor of progressive and novel social policies" is what it is. Judges are urged to use their authority to correct wrongs, especially when other branches of the government are unable to do so. In other words, the courts ought to be involved in formulating social policy regarding issues like civil rights, the defense of individual rights, political injustice, and public morality.
Historical Background of Judicial Activism
• The roots of judicial activism are not supported by any constitutional provisions. It was developed by India's judicial system. There is a similar idea in the United States of America.
• The creation of Public Interest Litigation (PIL), the abolition of the Locus Standi principle, and Suo Moto cases have all made it possible for the judiciary to get involved in a variety of public issues even when there isn't a complaint from the party who is being harmed.
• Although prior instances of judicial activism were associated with upholding fundamental rights, the court has increasingly started to get involved in issues of governance as well.
What Kind of Judicial Activism Are There?
• The term "procedure established by law" as defined by Article 21 of the Constitution was stated by the court in the Maneka Gandhi v. Union of India case by redefining it as "due process of law," which states that the procedure established by the law must be just, fair, and reasonable.
• Cricket reforms: The Board for the Control of Cricket in India (BCCI) is being reorganized to the best of the Supreme Court's ability. Since the BCCI is a private organization, this is unexpected. The Mudgal committee and the Lodha Panel were established by the Supreme Court to look into the betting allegations and make reform recommendations. Later, the Supreme Court fired BCCI executives for failing to implement the recommended reforms.
• SIT on Black Money: The Supreme Court mandated that the UPA administration establish a SIT to look into black money. Although the UPA administration did not act on this ruling, the NDA administration has now finished the job.
Judiciary Activism's Benefits
• Focuses on the inaction of the executive and legislative branches.
• Creates a more responsive and pro-people judiciary.
• It helps to defend the spirit of the constitution by providing a broader meaning for numerous sections of it, including Articles 14, 19, 21, and 32.
• Encourages transparency and accountability in government.
• Stops the government from violating the fundamental rights of its people and acting arbitrarily.
• Ensures that there are checks and balances in place for the Executive Branch (ex. 2G Allocation, Coal Scam, etc.).
Disadvantages of Judicial Activism
• The decisions made in the judicial activism paradigm established a fundamental standard for subsequent decisions.
• Continual judicial scrutiny may cause people to lose faith in the system.
• Judicial activism limits the operation of the state and federal machinery.
• Legislative and statutory laws are broken.
• For personal advantage, decisions or directives can be swayed.
Judicial Review
Even if the legislature has the authority to enact laws, this authority is not unqualified. The judiciary conducts judicial reviews to determine whether laws passed by the legislature are lawful.
Where Does The Authority For Judicial Review Come From?
• The protection of fundamental rights is guaranteed by Article 13, which also voids any legislation that is "incompatible with or in derogation of fundamental rights."
• Any "Ordinance, order, bye-law, rule, regulation, notification, custom, or usage" that has legal force in India is referred to as "law" according to Article 13 of the Constitution.
• In the event of a breach of fundamental rights, a person may relocate to the Supreme Court under Article 32. Similar to Article 226, Article 226 enables anyone to complain to the High Court when their fundamental rights or other rights are violated. As a result, the High Court and the Supreme Court have the authority to issue writs as legal redress against the perpetrator.
• According to Article 137, the Supreme Court has the power to review any orders or judgments rendered by the Supreme Court. The review will be conducted by a larger SC bench.
• The Supreme Court is empowered under Article 142 to make any ruling or issue any order necessary to administer full justice in any case or subject that comes before it.
• The fundamental elements of judicial review are primarily Articles 13, 32, and 226, Articles 13 and 32 are Fundamental Rights.
• Additional judicial review has also been regarded as a fundamental component of the Indian Constitution and cannot therefore be changed.
Judicial Overreach
There is a very thin line separating judicial activism from overreach. When judicial activism goes too far and turns into judicial adventurism, it is called judicial overreach. When the court goes beyond its authority, it runs the risk of interfering with the duties of the legislative and executive branches of the government.
Where Does The Authority For Judicial Excess Come From?
Nowhere. This is not desirable in any democracy.
The excess of the judiciary destroys the spirit of the separation of powers.
Examples of Judicial Overreach:
Imposing patriotism in a case involving the national anthem
In the case of Shyam Narayan Chouksey v. Union of India, the Supreme Court issued its ruling in December 2016, which mandates that:
• Before a feature film begins, the National Anthem must be played in all Indian movie theatres.
• Every cinema in India will play the National Anthem before the main feature starts.
• Everyone in the room must stand during the playing of the National Anthem as a sign of respect.
• The entry and exit doors must be shut before the National Anthem is played or sung in the theatre to prevent any disruptions.
• The doors can be opened once the National Anthem has been played or sung.
• The national flag need to be visible on the screen as the national anthem is being played in the hall.
Ban on Firecrackers
• During the 80th All India Presiding Officers' Conference in November 2020, the Vice-President of India referred to the Supreme Court's ban on fireworks during Diwali as "judicial overreach." Aspirants must develop their ability to critically assess concepts because there are various viewpoints on the Supreme Court's decisions.
The NJAC bill and the 99th Amendment to the Constitution
• The Supreme Court ruled that the National Judicial Appointments Commission (NJAC), which was established by the 99th Constitutional Amendment, was unconstitutional. The collegiate system was expected to be replaced by this.
In the instance of the movie Jolly LLB 2, proactive censorship
• Following the Central Board for Film Certification's (CBFC) certification of the film Jolly LLB 2, a petition was submitted alleging that the picture had broken Section 5B of the Cinematograph Act of 1952. The restriction of the certification of films that contain defamation or courtroom contempt is covered in Section 5B.
• The court established a committee to investigate, and after its investigation was complete, the commission imposed four edits to the movie and requested that the CBFC recertify it. This was against the Cinematograph Act, which prohibits courts from approving or changing motion pictures.
The 2G case's termination of telecom licenses
• After the CBI filed a FIR against Department of Telecom officials in the 2G scam case, the Supreme Court ordered the cancellation of 122 telecom licenses and spectrum granted to eight companies. According to the Supreme Court, the allocation process was flawed. Additionally, it informed the administration that only auctions would be used to distribute national resources.
Concerns About Judicial Overreach
• Democracy is founded on the division of powers among the organs, hence it goes against the letter of the constitution.
• It separates the judicial and legislative branches of government.
• It damages citizens' trust in governmental institutions, which could be fatal for democracy.
• The daily decision-making process is heavily influenced by unelected judges, leading to the tyranny of the unelected.
• The judiciary would be overworked if all PILs were heard, as they could otherwise be utilized to address open cases in the courts.
Judiciary Overreach And Judicial Activism: Differences
• The line separating judicial activism and overreach is razor-thin, when activity crosses it and turns into judicial adventurism, it crosses the line into judicial overreach.
• Whether an action is activism or excess depends on how the people see it.
• On the other side, the judiciary has consistently asserted that they must step in and issue the orders because of legislative and executive overreach.
Conclusion
There are signs that the judiciary is abusing its power and encroaching more and more on the exclusive domain of the legislature and the executive, throwing off the delicate balance between the many institutions in the nation and leading to unhealthful imbalance. We cannot allow the country to be ruled by judicial orders, leaving other democratic institutions becoming ineffective and powerless.
Although judicial review is a legitimate area of the judiciary's purview, there needs to be a limit or boundary established. A comprehensive and integrative strategy aimed at enhancing the judicial infrastructure and lowering indiscipline can enhance the quality and efficiency of the mainstream judicial system.