Judicial activism is a proactive approach of judiciary to uphold constitutional values and protect citizens' rights whereas Judicial overreach refers to situations where the judiciary exceeds its mandate or encroaches upon the domain of the executive or legislative branches of government. The characterization of a court decision as judicial activism or judicial overreach can be subjective and open to interpretation. The UPSC Indian Polity and Governance Syllabus includes Judicial Activism & Judicial Overreach which is discussed in this article.

Judicial Activism - Concept

It's a Judicial philosophy that encourages judges to deviate from standard precedents in favor of progressive and novel social policies". Judges are encouraged to use their powers to redress injustices, particularly when the other arms of government fail to do so. In short, the courts should be involved in defining social policy on matters such as civil rights, individual rights protection, political injustice, and public morality.

Judicial Activism - Historical Background

• The concept of judicial activism originated and developed in the USA. The term was first coined in 1947 by historian Arthur Schlesinger, Jr.
• In India, this doctrine was introduced in the mid-1970s. Justice V.R. Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai laid the foundation of this doctrine.
• There are no constitutional articles that support the origins of judicial activism.
• With the repeal of the Locus Standi concept, Suo Moto cases, and the invention of Public Interest Litigation (PIL) have permitted the judiciary to interfere in a wide range of public matters, even when there is no complaint from the affected party.
• In fact PIL is the most popular form of Judicial Activism.

Reasons for the Rise of Judicial Activism:

• Executive and Legislative Failure: There have been instances where the executive or legislative branches have been unable or unwilling to address pressing issues. In such cases, the judiciary has stepped in to fill the gap and provide solutions. This is particularly evident in matters concerning public interest, corruption, and human rights violations. Eg. Rights of undertrials
• Expansive Interpretation of Rights: The judiciary has taken an expansive interpretation of Fundamental Rights to ensure their effective enforcement and protection. This has led to interventions in areas such as environmental protection, right to education, right to privacy, etc.
• Introduction of Public Interest Litigation (PIL): PIL allows any individual or organization to file a petition on behalf of the affected communities or individuals. This has enabled the judiciary to address a wide range of socio-economic issues affecting marginalized communities.
• Weaknesses in Other Institutions: In India, there have been instances of institutional weaknesses and failures, including corruption, inefficiency, and political interference. In such a scenario, the judiciary often emerges as a relatively independent and effective institution, leading to increased reliance on it for addressing societal problems.
• Expansion of Judicial Review: This judicial review process often involves interpreting the Constitution in light of changing societal norms and values, leading to judicial activism.
• Media and Civil Society Influence: The role of media and civil society in highlighting issues and advocating for change has also influenced judicial activism. Public pressure and awareness created by these actors often lead to judicial intervention to address perceived injustices or deficiencies in governance. Eg.Media Groups,Women Rights Groups

Examples of Judicial Activism

• Kesavananda Bharati v. State of Kerala (1973): The Supreme Court upheld the doctrine of basic structure, asserting that certain fundamental features of the Constitution cannot be amended by the Parliament.
• Vishaka v. State of Rajasthan (1997): The Supreme Court laid down guidelines to address sexual harassment in the workplace, filling a legislative vacuum.
• Protection of Tribal Rights (2013): In Niyamgiri Vedanta Resources v. Union of India, the Supreme Court ruled that tribal communities had the right to decide whether mining activities could take place on their ancestral lands. This decision highlighted the importance of tribal autonomy and environmental conservation.
• Reforms in BCCI (2016): Supreme Court intervened to restructure the Board of Control for Cricket in India (BCCI).Set up committees (Mudgal committee, Lodha Panel) to investigate corruption allegations and propose reforms.Dismissed BCCI officials for non-compliance with suggested reforms.
• Right to Privacy (2017): In the landmark case of Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court declared the right to privacy as a fundamental right under the Indian Constitution, expanding the scope of individual liberties.
• Decriminalization of Homosexuality (2018): In Navtej Singh Johar v. Union of India, the Supreme Court struck down Section 377 of the Indian Penal Code, decriminalizing consensual homosexual acts between adults. This decision was hailed as a victory for LGBTQ+ rights.
• Protection of Tribal Rights (2013): In Niyamgiri Vedanta Resources v. Union of India, the Supreme Court ruled that tribal communities had the right to decide whether mining activities could take place on their ancestral lands. This decision highlighted the importance of tribal autonomy and environmental conservation.

Significance of Judicial Activism

• Protection of Fundammental Rights: It play a crucial role in protecting individual rights and liberties. Judges can use their power to strike down laws or governmental actions that infringe upon constitutional rights, such as freedom of speech, religion, or privacy. Eg. Rights of transgender community.
• Agent of Social Change: Judicial activism can drive social change by interpreting laws in a way that reflects evolving societal norms and values. Eg. Sayara Bano judgment (2017) deemed the practice of instant triple talaq unconstitutional, affirming women's rights to equality and dignity.
• Checks and Balances: By actively interpreting laws, judges ensure that government actions remain within constitutional bounds and prevent potential abuses of power.
• Filling Legislative Gaps: In situations where legislative bodies fail to address pressing social issues or where laws are ambiguous, judicial activism can fill these gaps by issuing decisions that provide clarity and guidance. Eg. Enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was the result of the Vishakha case(1997) judgment.

Judicial Overreach

Judicial overreach is defined as a situation where the judiciary, particularly the courts, exceeds its constitutional mandate by encroaching upon the domains of the executive and legislative branches of government. It violates the principle of separation of powers.

Examples of Judicial overreach

• Cancellation of 2G licenses (2012): The Supreme Court canceled 122 2G licenses issued by the government, citing irregularities in the allocation process. While this was seen as addressing corruption, critics argued that it crossed into the realm of executive policy-making.
• Supreme Court's ban on sale of firecrackers in Delhi-NCR to combat air pollution
• National Judicial Appointments Commission (NJAC) Case (2015): The court asserted its authority to protect judicial independence, but it encroached on the domain of the legislature.
• Ban on Diesel Vehicles in Delhi: Supreme Court imposed a ban on diesel vehicles above a certain engine capacity to address the issue of air pollution in Delhi.
• Judicial Censorship in Jolly LLB 2 Case: The Supreme Court's involvement in certifying and altering a film, lacking explicit legal authority, was criticized as judicial overreach into the domain of film certification typically handled by the Central Board of Film Certification.
• Shyam Narayan Chouksey v. Union of India (2016) :Supreme Court mandated all cinema halls in India must play the national anthem before the feature film starts. It was beyond the scope of the Prevention of Insults to National Honour Act 1971, which prohibits the inclusion of the national anthem in films, dramas, or shows.

Criticism of Judicial Overreach

• Violation of the Constitutional Spirit: It violates the principle of separation of powers which is necessary for smooth functioning of government. Excessive judicial activism may upset this balance.
• Increased tensions between organs of the state: It can exacerbate tensions between the legislative and judicial branches of government. When courts intervene extensively in matters that could be deemed within the purview of the legislative branch, it may lead to a breakdown of cooperation and trust between these institutions.
• Erosion of faith in institutions: It can undermine public confidence in governmental institutions. If citizens perceive that unelected judges are making significant policy decisions, it may erode their trust in the democratic process.
• Potential Tyranny of the Unelected: Unelected judges wielding substantial power through judicial overreach can lead to concerns about the tyranny of the unelected as it allows judges to exert undue influence without being directly accountable to the electorate, potentially undermining democratic principles.
• Judicial Resource Overburden: It may overburden the judiciary. This diverts resources away from resolving other pending matters and may result in delays in the dispensation of justice, further undermining public confidence in the legal system's efficacy.

Difference between Judicial Activism and Judicial Overreach

Conclusion

The line between activism and overreach often depends on the degree of judicial restraint exercised by courts. Judicial activism, when coupled with a judicious exercise of restraint, can foster positive legal and social change without unduly infringing on the prerogatives of other branches of government. However, when engage in excessive lawmaking, they risk crossing into the territory of overreach.

FAQs

MCQs

1. Which of the following is an example of judicial activism in India?

A) Shah Bano case
B) Keshavananda Bharati case
C) Vishaka Guidelines case
D) Mandal Commission case

2. What is the primary criticism of judicial overreach?

A) It strengthens democracy
B) It upholds constitutional rights
C) It violates the separation of powers
D) It ensures good governance

3. Which case led to the introduction of the Basic Structure Doctrine in India?

A) Indira Sawhney case
B) Vishaka case
C) Keshavananda Bharati case
D) Golaknath case

4. Judicial activism plays a crucial role in which of the following?

A) Protecting fundamental rights
B) Upholding legislative power
C) Strengthening the executive
D) Amending the Constitution

5. Which of the following statements is true regarding judicial activism?

A) It always maintains the separation of powers
B) It can lead to judicial overreach
C) It is limited to constitutional interpretation only
D) It is primarily focused on amending laws

GS Mains Questions and Model Answers

Q1: Discuss the significance of judicial activism in India and its role in protecting constitutional values.

Answer: Judicial activism in India has played a vital role in safeguarding constitutional values and ensuring justice, particularly in cases where the executive and legislative branches have failed to act. It empowers the judiciary to take proactive steps in addressing issues related to human rights, environmental protection, and good governance. For example, cases like the Vishaka Guidelines for preventing sexual harassment at the workplace and the Right to Privacy case have reinforced the role of the judiciary in upholding individual rights.

However, judicial activism must be balanced with respect for the separation of powers. When used responsibly, it strengthens democracy by ensuring that no branch of government exceeds its constitutional limits, thereby maintaining checks and balances.

Q2: Evaluate the impact of judicial overreach on the democratic functioning of the government.

Answer: Judicial overreach occurs when the judiciary intervenes in matters that fall under the purview of the legislature or executive. While judicial activism is necessary to protect rights and enforce laws, overreach can disrupt the balance of power, leading to governance challenges. In India, several instances of judicial overreach have been criticized for undermining the authority of elected representatives and creating inefficiencies in policy implementation.

Although the judiciary plays an essential role in safeguarding rights, it is crucial that it respects the separation of powers. Judicial overreach can weaken democratic processes and reduce accountability by concentrating power in the judiciary, which is not directly answerable to the people.

Q3: Analyze the evolution of judicial activism in India, citing key cases that have shaped its development.

Answer: Judicial activism in India has evolved significantly since the 1970s. One of the key cases that shaped judicial activism was the Kesavananda Bharati case (1973), where the Supreme Court introduced the Basic Structure Doctrine, limiting Parliament’s power to amend the Constitution. Over the years, the judiciary has taken proactive stances on various social, environmental, and human rights issues.

Notable examples include the Vishaka case (1997), where guidelines were issued to prevent sexual harassment at the workplace, and the Right to Privacy case (2017), which recognized privacy as a fundamental right. These cases reflect the judiciary’s role in promoting social justice and reinforcing the rule of law in India.

Previous Year Questions on Judicial Activism and Overreach

1. UPSC CSE Prelims 2019:

Question: In which of the following cases did the Supreme Court of India introduce the Basic Structure Doctrine?

A) Indira Sawhney case
B) Golaknath case
C) Keshavananda Bharati case
D) Vishaka case

Answer: C

Explanation: The Basic Structure Doctrine was introduced by the Supreme Court in the Kesavananda Bharati case (1973), which held that Parliament cannot amend the basic structure of the Constitution.

2. UPSC CSE Mains 2020 (GS Paper 2):

Question: "Examine the role of judicial activism in India’s democratic system. Discuss its benefits and challenges."

Answer: Judicial activism has played a significant role in India’s democratic system by protecting the rights of citizens and ensuring accountability in governance. It has provided remedies for social and environmental issues, such as in cases related to environmental protection, human rights, and corruption. However, judicial activism can also lead to judicial overreach, where the judiciary interferes in matters best left to the executive or legislature. While activism helps check abuses of power, excessive interference can undermine democratic processes and the principle of separation of powers. Therefore, a balance is needed to maintain judicial independence while respecting the domains of other branches of government.

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