Judicial Activism is a term used where the judiciary plays an active role to allot social justice. Or it can be said that judicial activism happens when the judiciary upholds the rights of the citizens and preserve the constitutional and legal system of the country. And when judicial activism crosses its limit, it is known as judicial overreach. In simpler terms, it is termed as judicial overreach when the judiciary starts becoming intrusive with the proper functioning of the legislative or executive organs of the government. It can be stated as undesirable, and also, it is against the principle of separation of power. Judicial overreach is considered unwanted in a democracy. After all, it goes in contradiction of the principle of separation of powers. Frequent interventions by the judiciary, which sometimes borders on judicial adventurism, tend to weaken the functioning of the other two branches of the constitution.
Judicial activism is the use of judicial power to articulate and enforce what is beneficial for society. In contrast, judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative and executive, thereby encroaching upon the legislature and executive’s domains. It happens even when the other institutions are incapable of their activities. Although, in defense of the overreach, the judiciary has stated that it stepped in only during the cases which are related to the executive and legislative underreach.
Paradoxically, the greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of Judges to do justice in each individual case.
H.M. Seervai
Article 142 and Judicial Overreach
Article 142 of the Indian Constitution reads as – Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.
- The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
- Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
The article gives wide unrestricted powers to the Supreme court of India to pass any order to do ‘complete justice’ in any matter undecided before it. The article instructs that the supreme court, even in lack of legal protection, the court can take decisions to do complete justice (for example, to save lives). But if we go through some of the judgments that have been passed by the Apex Court under Article 142, it can be said that the Supreme Court believes that it is required to interfere in complex cases, and the current laws were insufficient for the current scenario.
Like in the landmark judgment in the case of Union Carbide Corporation Etc. vs Union of India etc. (Bhopal Gas Tragedy Case) the Hon’ble Supreme Court raised Article 142 and provided relief to the thousands of affected people. In the said judgment, the Hon’ble Supreme Court, while presenting the compensation of $470 million to victims, observed that to do complete justice, it could even override the laws made by Parliament.
The specific part of the judgment is: “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142……..But we think that such prohibition should also be shown to be based on some underlying fundamental and general public policy issues and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of ―” complete justice” of a cause or matter, the apex court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly…….No question of lack of jurisdiction or of nullity can arise.”
The statement of the Supreme Court of India in this judgment positioned itself above the laws and statutes made by Parliament or the legislatures of the States.
The phrase ‘complete justice’ embedded in Article 142 is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or the result of the operation of statute law or law declared under Articles 32, 136, and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Although the term Complete justice is particular to each case depending upon conditions in each case. On the idea of justice that can change according to the case, so there is no correct justification that how to complete justice can be interpreted when there has been no standard form of this described anywhere. Hence the nature and wide range of powers this article tells the judiciary is a matter to be suggested to prevent such concepts from becoming continuing.
In simpler words, it is a power that has not been taken into question. Thus, there exists a clear lack of monitoring framework immediate to the article as over the years this power is used by the court to limit fundamental rights like Articles 21 and 19 of the Constitution by making new laws that did not exist previously and changing the functional law. This has become a concern as the judiciary is invading the other two organs by assuming law-making powers leading to judiciary overreach.
Instances of Judicial Overreach
Even though this is a matter of perspective, many examples are generally regarded as cases of judicial overreach in India –
Judicial Overreach in the National Anthem Case
In the case of Shyam Narayan Chouksey v. Union of India also known as The National Anthem Case, a writ petition was filed to the Supreme Court under Article 32 of the Constitution for the issue of a writ of mandamus or any other writ that the court deems and thereby commanding the Union of India or any appropriate ministry or department to take any supplementary steps required for instilling in public a proper sense of deference towards the National Anthem and other national symbols. The petitioner Shyam Narayan Chouksey filed the petition with the intending that how the National Anthem is disrespected and what constitutes abuse and disrespect of it is still not clear to the public at large. The main issues raised in the case were:
- What constitutes respect and disrespect to the National Anthem under The Prevention of Insults to National Honor Act?
- Are the arguments made by the Attorney General of India applicable to disabled people of India within the ambit of Sections 2(i) and 2(t) of the Persons with Disabilities Act?
- And whether the National Song and National Flag are also regarded as the symbol of a secular nation under Article 51(A) of The Constitution of India and what else comes under such symbols.
The final verdict passed in December 2016; the Supreme Court made it compulsory for all cinema halls to play the National Anthem at the beginning of the film. Furthermore, all persons present in the hall have to stand up while the Anthem is playing to show their respect. This can be regarded as an instance of judicial overreach due to the following broad reasons:
- Pretermitted Bijoe Emmanuel v. State of Kerala Case – The decision fails to take into account the Courts’ own earlier decision where 3 students were expelled for not singing the National Anthem and were later taken back into the school on the court’s order with the perceptive that no provision indulges one to sing the national anthem. The court has suitably ignored situations where some of the people may not be able to stand up due to physical disability, intellectual or religious reasons because they may willfully believe that their religious belief prevents them from doing so.
- Overlooked the verdict of the Uphaar Tragedy Case – In the case of Association of Victims of Uphaar Tragedy v. Union of India & Ors, the decision requires closing the doors of the hall before and while the National Anthem is being played; thereby ignoring its own earlier judgment which stated that under no circumstances should the doors be locked from outside.
Proactive Censorship in case of Jolly LLB 2
In this case, a lawyer filed a writ petition before the Bombay High Court for the removal of certain scenes that damaged the solemnity and gravitas of a judge’s seat, claiming that the film violated Section 5(B) of the Cinematograph Act. Based on two trailers and some photographs, the High Court seemingly agreed, observing, prima facie, the above-referred photographs do indicate total disrespect or disregard to the high office of this Court. It then went on to appoint a three-member committee, comprising two lawyers to watch the movie and submit a report. Even after the producers moved to the Supreme Court, after hearing the parties, it did not restrict the committee’s functioning and left it to the High Court to pass appropriate orders after revising its report.
The committee’s report listed various scenes it found objectionable, including a scene of a shoe being thrown at a judge, which, it concluded, amounted to defamation and contempt of court. Significantly, as a measure of compromise and in view of the imminent release of the film, the director undertook to make four cuts and modify the objectionable scenes, after which the CBFC was directed to re-certify the movie. The petition before the Supreme Court was then withdrawn, with no clarity on the question of whether a court-appointed Committee could review the certification granted by a statutory body/CBFC.
- The Cinematograph Act deals with the provisions related to the certification of films and makes it very clear that only the Board of Film Certification has the power to censor movies along with the Government, which has revisional powers. Under the Act, the Courts have no power to verify, change, or refuse certification of films.
- The order of the court is viewed as a control on freedom of speech and expression as defined under Article 19(2) of the Constitution. Moreover, the order of a court in such a case does not undercome under the fundamental rights. Thus, it can be said that the Court’s order instructing removals in Jolly LLB 2 was passed without any authority.
Further, there was nothing stated in the Contempt of Courts Act that allowed for pre-censorship or justified the Bombay High Court’s creation of a committee. Finally, the orders of the courts efficiently contributed to a bad effect on freedom of speech and resulted in pre-censorship. The courts’ leaning to exercise their contempt powers to regulate hostile speech, instead of protecting it, is viewpoint discrimination, which is a far cry from their role as protectors of rights.
Kesavananda Bharati Case
In the famous case of Kesavananda Bharati Sripadagalvaru v. the State of Kerala, also known as Kesavananda Bharati Case the petitioner, Kesavananda Bharati challenged the Kerala land reforms acts in 1970, which imposed restrictions on the management of the religious property under Article 26 of the Constitution concerning the right to manage religiously owned property without government interference. The issue raised was that whether the Parliament altered, amended, abrogated any part of the Constitution even to the extent of taking away all fundamental rights?
The final verdict was delivered on 24th April 1973 by a majority of 7:6 in which the majority held that any provision of the Constitution could be amended by the Parliament to accomplish its socio-economic responsibilities that were guaranteed to the citizens as stated in the Preamble, provided that such amendment did not change the Constitution’s basic structure. The minority, however, was suspicious of giving the Parliament unlimited amending power. Despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental property right.
Lodha Committee report on the Board of Control for Cricket in India
The Lodha Committee was set up by the Supreme Court against the allegations of corruption, match-fixing, and betting scandals in Indian cricket. The committee was set up in an attempt to bring back law and order into the BCCI and the game of cricket. It was a case of Judicial overreach as:
- The BCCI is listed and governed by the Tamil Nadu Societies Act. Moreover, it is a trust and was not controlled by the central or any of the state governments. The BCCI officials were elected based on their bye-laws. So, the Lodha committee had no authority to make the recommendations. The court could have instructed that the BCCI run in agreement with the provisions of the Societies Act.
- It was not the job of the court to run a sports association or to prescribe how it should be run. The self-rule of the institutions should be respected. External interfering and violation of their sovereignty were not good for the developments. If they would have violated they would have been removed through the proper given procedure.
- With the one state one vote rule, the court had ignored the cricket history in India when teams participating in the Ranji Trophy were from Railways and Services. They have now been given the status of secondary members with no voting rights.
Conclusion
With great powers comes great responsibility, was said by Voltaire. It is the responsibility of the stakeholders of the judiciary to uphold the powers within the constitutional framework. However, it remains to be seen that if the courts choose to overlook errors and uphold the principle of the Constitution, which undoubtedly criticizes judicial overreach. It destroys the essence of the constitution as the democracy stands on the separation of powers between the organs as it creates a conflict between the two organs, legislative and the judiciary. It reduces the trust of the people in public institutions, which can be dangerous for democracy. It leads to a waste of Judicial time, which can then be utilized for hearing of other various important matters relating to public standing pending before the court.
The fact that there is an ever-increasing pendency rate is still to be understood. India currently has over 4 crores pending cases across various courts. And when Judicial activism helps in the establishment of the people’s trust in the judiciary, the act of overreach destroys it. As it appears an act of ‘tyranny of unelected’ in a democracy where elected representatives rule. And the other thing is that the Indian Judiciary and the Constitution of India under Article 142 believe that every citizen of India must get complete justice.
But since the past few years, Article 142 has become a gigantic part of the Supreme Court, which is invoked several times to decide the case and to do complete justice. Further, there is no specific guideline or rule provided by the law which explains when, where, and under which circumstances the Apex Court can invoke the said article to do complete justice. Moreover, such power to issue any order in the benefit of justice has been discussed on the Supreme Court only in the absence of Article 142.
Accordingly, the Supreme Court, being the sole repository of such a wide-ranging power, can, under this article, issue several orders. One of the disadvantages of the powers of the Supreme Court under Article 142 is that, unlike the executive and legislature, it cannot be held accountable for its decisions. For example, in one of the decisions, the apex court banned e-rickshaws in certain parts of Delhi without making provisions for substitute employment. Thus, there is a need to maintain a balance between the three pillars of government without invading each other’s area.
The powers under Article 142 being healing in nature cannot be construed as powers that allow the court to assume the role of executive or legislature. In the case of Bar association of Supreme court vs. The Union of India, Supreme Court itself held that the power to do complete justice under Article 142 is, in a way, remedial power, which gives partiality to equity over the law, but it cannot be used to violate substantial rights.
Editor’s Note
The author of this article talks about Judicial Overreach in current times. It talks about the unrestricted power given by Article 142 of the Constitution to the Supreme Court. The author also gives examples of various instances of Judicial Overreach like the National Anthem Case and the Keshvananda Case. Finally, the author concludes that there is a need to maintain a balance between the three pillars of government without invading each other’s area.