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  • Raghav Sand

Judicial Overreach: How Much is too Much?

Vice-President M. Venkaiah Naidu minced no words while addressing the inaugural session of the 80th All India Conference of Presiding Officers at Kevadia, Gujarat, on the topic Harmonious Coordination between Legislature, Executive and Judiciary — Key to a Vibrant Democracy. He remarked that, there have been more than a few judicial pronouncements that gave a “distinct impression of an overreach”. The opinion of V-P Naidu is significant because it is being made by a seasoned statesman holding a prestigious constitutional position.


“For example, the Diwali fireworks; cess on registration and movement of vehicles from the National Capital Region through Delhi; banning use of vehicles of certain make after 10 or 15 years; monitoring police investigations,” Naidu said, adding that the others included “denying the executive any role in the appointment of judges by instituting collegium, which is said to be an extra-constitutional body, and invalidating the National Judicial Accountability Commission Act are being cited as instances of judicial overreach.” V-P Naidu said that certain pronouncements from judiciary have resulted in “blurring of the contours demarcated by the Constitution”.

“They have led to the question as to how the three organs of the state should respect the jurisdictional sanctity enshrined in the Constitution instead of arrogating to themselves a sense of supremacy,” Naidu said. “The moot question is does our Constitution envisage any of these three to be supreme?… occasionally, concerns have been raised as to whether they were entering the domains of the legislative and the executive wings,”

The distribution of responsibilities and powers between the three organs, i.e., the executive, the legislature and the judiciary, has been clearly defined by the Constitution of India. V-P Naidu voiced his concerns about judiciary entering the domains of the legislative and the executive wings. Articles 122 and 212 of the Constitution of India lays out that Courts should not inquire into proceedings of Parliament and Legislature, respectively.


Apart from independence from politics, the judiciary also needs independence from popular interest.” These are the words of former Chief Justice of India (CJI) S.H. Kapadia. In December 2018, justice S.R. Sen of the Meghalaya High Court said in a ruling that “political leaders were too much in a hurry to get the independence… thus creating all the problems today” and “India, since [it] was divided on the basis of religion, should have also been declared as a Hindu country”.


In the T.N. Godavarman versus Union of India case, the Supreme Court defined a ‘forest’ in the absence of a definition in the Forest Act. In doing so, it took over the governance of the forests in India. One may be tempted to argue that there’s no harm when a political vacuum is filled by the seemingly kind-hearted gesture of the judiciary. It sounds like a fair proposition. However, Indian history is replete with examples where the costs of such judicial interventions have outweighed their gains.


Judicial Activism and Judicial Overreach


The Judiciary, in addition to performing its primary duty of interpretation and adjudication also has to ensure proper deliverance of justice. Since the late 1970s, there was a rapid growth in Public Interest Litigations (PIL) to implement an effective mechanism for delivery of justice. When the Court while deciding on the rights of the parties, passes general orders such as mandatory wearing of helmets, the quantum of fines to be imposed for those who jump a red light etc. amounts to overstepping its ambit. All this is something that has to be done by the executive as making rules and regulations comes under the executive’s purview of work.

In April 2016, the Bombay High Court ordered that cricket matches that are to be held after 30 April in the drought affected state of Maharashtra be shifted to other states. Not only that, the Court also ordered the Board of Control for Cricket in India to ensure that 6.4 million litres of water be supplied to drought-affected villages, which will be nominated by the court.


Courts’ Opinion on Judicial Overreach


Taking the governments head on for their criticism of the judiciary for entertaining PILs, a bench of Justices Madan B Lokur, S Abdul Nazeer and Deepak Gupta said PIL has become a potent and very effective tool to bring about immense social change through judicial interventions. “During the last several decades, PILs have compelled this court to consider issues relating to environment, social justice, violation of human rights and disregard for Article 21 of the Constitution; either because of an absence of governance due to the failure of the state to faithfully and sincerely implement laws enacted by Parliament or due to misgovernance by the state … leading to rampant illegalities,” the bench said.


“In recent times, regrettably, the state has chosen to challenge the idea of PIL or denigrate it by chanting the mantra of judicial activism or separation of powers. In most cases, these mantras are nothing but a fig leaf to cover up the failures of the state to recognize the existence of rule of law and the need for providing social justice to people of the country, as stated in the Preamble to our Constitution. There must be a realisation that PIL has given voice to millions of marginalised sections of society, women and children,” said Justice Lokur who wrote the judgment.


The judiciary must evolve a set of guidelines that lays down a procedure in consonance with the executive so that it does not delve into issues which are beyond its domain of expertise.


Who Decides ‘How Much is too Much’?


The people engaged in the executive, the legislature and the judiciary are more than capable to manage themselves and be mindful about restraining from unnecessary exuberance. They are fully aware of the lines that separate powers and responsibility. It will be in the best interests of everyone when all the three pillars of democracy function in harmony and independence; anything less or more than that would defeat the intent of Constitution of India in both letter and spirit.


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