The Saga of Judicial Overreach and Restraint – Is Indian Judiciary overstepping its Boundary?

Supreme Court

The Indian Judiciary has been playing an active role and is no longer a silent spectator. When the legislature and the executive fail in their duties, the Judiciary takes action in the guise of judicial review. However, judicial activism has always been a controversial and heated debatable topic, due to the recent developments in this regard.

The phrase judicial review refers to a court’s authority to review and potentially quash a legislative act as unconstitutional. The courts investigate or scrutinize the actions of other organs of the government to make sure everything is running within the bounds of the Indian Constitution. Countries having written constitutions are governed by them, and laws passed by the legislature can be overturned by the courts if they are deemed to be invalid or ultra vires.

Judicial restraint is a method of exercising judicial scrutiny that can be either legal or substantive. The concept of restraint, as a procedural theory, encourages courts to refrain from ruling on legal problems, particularly constitutional ones, until the judgment is required to resolve a specific disagreement between opposing parties. As a substantive one, it encourages courts debating constitutional issues to give the elected branches significant credibility and to reject their acts only when constitutional boundaries have been explicitly breached. 

Ambiguous and abstract statements are common in constitutions. A court discussing political dimensions discusses expressions such as the right to life, the procedure established by law, but, except for philosophers, judges are constrained by the reasonable limits of the need to define their ideology. Judges involved in judicial review of legislative action should be imaginative in their interpretations rather than mechanical. While interpreting the written constitution, judges cannot simply adopt the law to the circumstances before them.

Judicial Overreach

Judicial Overreach is a type of activism in which the judiciary makes arbitrary, unjustified, and frequent incursions into the legislative realm, typically to disrupt the flow of powers between the executive, legislature, and judiciary. This is a situation in which the legislature’s function is encroached upon by the judiciary by passing legislation. Judicial overreach occurs when the courts infringe on the executive branch’s authority by issuing rules or engaging in censorship.

The distinction between judicial activism and overreach is razor-thin. To put it bluntly, judicial overreach occurs when judicial activism exceeds its bounds and becomes judicial adventurism. When the court exceeds its authority, it risks interfering with the legislative and executive branches of government’s functions.

At one stage, this was seen to be required to remedy the legislature’s failures and the executive’s transgressions. However, it has now progressed to the point where the concept of division of powers, which should be regarded as a component of the Constitution’s basic construction, is being questioned. Since this executive’s job of policy creation and policy execution is more difficult and dependent on the fund, function, framework, and functionary, judicial overreach may have a detrimental influence on the executive spirit. Because of judicial overreach, the executive and judiciary’s collaboration is often harmed, which has a detrimental influence on the constitutional structure and framework.

It serves as a check and balance for the government’s other institutions, and it keeps the judiciary alive, well-informed, and for the people. It aids in the safeguarding of the constitution’s essence by expanding the definition of a number of life-giving provisions such as Articles 14, 19, 21, and 32, among others. The judiciary is attempting to foster more transparency, trust, and accountability in government through judicial activism.

Harms of Judicial Overreach


Words fail to express gratitude for the judiciary’s attempts to bring the country out of its grimmest period of emergency. The Indira Gandhi administration attempted to vandalize and pollute the Constitution before and during the Emergency, using a captive legislature. People sense the necessity for an independent and robust court that can stand up to an authoritarian administration in such situations. As time has passed, the Indian judiciary has gotten overly active, and it is frequently criticized for judicial overreach. Even inside the judicial process, politicians and other advocates frequently make this charge. Previously, Chief Justice Hidyatullah and H. M. Seervai opposed judicial activism; today, their supporters are attacking the aggressive response of the judiciary by calling it a threat to the constitution’s core framework of separation of powers.

The following are some key Supreme Court rulings that can be used to better comprehend these arguments: To begin, the Supreme Court of India held in Advocates on Record v. Union of India that – It is the responsibility of the Judiciary to determine the interpretation of constitutional provisions and legislation passed by the Legislature. This demonstrates the emergence of an overly active court that felt compelled to rule even when it was not deemed necessary.

In addition, the Court established the Central Vigilance Commission by judicial order, which was not anticipated by the legislation (the Delhi Special Police Establishment Act, 1946), for overseeing the operation of a statutory entity, the Central Bureau of Investigation. Apart from the Chiefs of the State Police, the Court also established a set of rules for the selection of chiefs of investigative agencies such as the Central Bureau of Investigation, the Central Vigilance Commission, and the Enforcement Directorate.

These criteria applied not only to their appointment but also to their status, transfer, and tenure, among other things. Other cases include Sheela Barse v. State of Maharashtra, in which the Court established guidelines for the operation of jails and mental intuitions. The Court ordered the government to enforce labor rules at construction sites in Labors Sala Hydro Electricity Project v. State of J&K. In Pradeep Kumar Jain v. B.M.C., the Supreme Court upheld admittance to medical institutions across India and established test schedules.

Times when Judiciary Overreached

NJAC Bill and the 99th Constitutional Amendment being struck down – The National Judicial Appointments Commission (NJAC) and the 99th Constitutional Amendment were declared illegal and invalid by the Supreme Court. It also stated that the judiciary could not simply risk being entangled in a web of government debt as it attempted to give politics and civilized society the final say in appointing justices to the highest courts. The court decided that the college system would be reinstated.

Following the CBFC’s certification of the Jolly LLB 2 film, a petition was filed alleging that it violated Section 5B of the Cinematograph Act of 1952. The court formed a committee to investigate the case, which imposed four changes to the film and required the CBFC to recertify it. Thereby, Judicial Activism refers to the judiciary’s role in upholding people’s legal and constitutional rights, whereas Judicial Overreach occurs when the judiciary’s role is expanded to include executive and legislative duties.

Judicial Activism in contrast with Judicial Restraint

Judicial activism has become one of today’s most contentious issues. Previously, its critics would use Raul Berger’s reasoning to criticize Judicial Activism, claiming that the touchstone of activism is the judiciary’s inability to interpret constitutional provisions and legislation in conformity with the will of the founding fathers and lawmakers accordingly. Professor Waldron’s thesis that empowering judges to decide on policy problems amounts to disregarding the democratically elected representatives of the people is used in today’s critiques.

This theory is based on the idea that judicial activism disrupts the distribution of forces between the executive, legislature, and judiciary. The underlying critique in both of the preceding reasons is that the judiciary is overly concerned with meddling in the Executive and Legislative branches of government and that it does so without respect for the founding lawmakers’ intentions. Simply put, the judiciary does not exercise judicial restraint.

The proponents of judicial restraint have frequently stated that the Supreme Court has taken the position of the Legislature through its activism; the accusation is that it has not only executed the assigned role of a lawgiver but has also assumed the role of plenary law-making authority, similar to the Legislature. Simply expressed, it has been argued that the Supreme Court has obviously overstepped its bounds and infiltrated the realms of the other parts of government.

Many supporters of judicial restraint have argued that by offering remedies such as continuous mandamus, the court has violated judicial restraint, demonstrating a blatant lack of respect for the other co-equal institutions of government. The judiciary, according to this viewpoint, operates as if it were the very first equals.


There are signs that the judiciary is overstepping its bounds and entering more and more into the exclusive domains of the legislative and the executive, causing an undesirable imbalance in the country’s delicate institutional and political balance. We cannot have a scenario in which the nation is controlled by court decrees, with other democratic authorities unable to make sound choices and progressively becoming obsolete. Although judicial review is a legitimate judicial function, a limit or boundary must be established. The judiciary, like other democratic institutions, should be responsible and aware of its own limitations. It should not become a super-parliament that makes laws and a super-executive that carries them out. A comprehensive and integrated approach focused on strengthening judicial infrastructure and eliminating indiscipline can improve the quality and speed of the mainstream court system.

The judiciary, like other democratic institutions, ought to be responsible and aware of its limitations. It should not supersede parliament, which makes laws, and an ultra-superior executive that carries them out. An extensive and integrated approach focused on strengthening judicial infrastructure and eliminating misbehavior can enhance the effectiveness and efficacy of the conventional judicial process.

Editor’s Note
The distinction between judicial activism and judicial overreach is razor-thin. Judicial Overreach occurs when judicial activism exceeds its bounds and becomes judicial adventurism. When the court exceeds its authority, it may obstruct the effective functioning of the legislative or executive branches of government.

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