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Critical Analysis Of Judicial Activism, Judicial Restraint And Judicial Overreach In India

Judicial Activism, Judicial Restraint and Judicial Overreach are concepts or ideas that are closely related. Without one, the other cannot be put into perspective. India, the world's largest democracy, gives its citizens the right to freedom and speech enshrined not only as a legal right but as a fundamental right under Article 19 (1) (a) of the Constitution of India. The heterogeneously diverse country also follows the Parliamentary system of governance, which vests the Parliament with the power to make laws on behalf of the citizens the three organs of the government attempt to outline the powers of the legislature, executive and judiciary.

However, due to the importance of bureaucrats in the law-making process, there remains a thin line of difference between all three organs of the government. Another bone of contention is the extent of the power exercised by judges while making crucial decisions. The Parliament (legislature) is vested with making laws for India. However, at the same time, the judiciary is responsible for protecting the citizens by ensuring that no law goes against the Constitution of India. The rights of the citizens have to be protected, but laws also have to be made in favour of the larger public at hand.

Judicial activism is closely linked to the judiciary's role in protecting the rights of the country's residents (India). It first originated in the United States of America. There is a provision in the Constitution of India which states that if a law is made by the legislature (Parliament) that violates the Constitution, the court can declare those laws unlawful. Both the Supreme Court of India and the High Courts have this power in India. Judicial Review is a term which has been frequently used in this context.

Judicial Restraint can be put as the exact opposite of judicial activism. According to this concept, any and every judge who can make a decision should limit his or her power. The judges vested with the decision-making power should only interpret the given law and should not indulge in the interference of policies that have already been put in place. The verdicts pronounced by the judges should be solely based on lex loci (the law of the land) or precedents.

Judicial overreach can be defined as the vehement display of judicial activism. In simpler terms, interference by the judiciary in the functioning of the other two organs of the government- the legislature or the executive can be termed as judicial overreach. The separation of powers doctrine gets infiltrated when judicial overreach comes into effect.

The system of checks and balances is also a distinct feature of the Constitution of India. There have been several instances where judicial intervention has been imperative. One such instance was to step in and curb the atrocious human rights violations in cases such as the Hussainara Khatoon case, the Olga Telis case, the MC Mehta case etc. In Vishaka vs the State of Rajasthan, the Supreme Court framed regulations for protecting women from sexual offences at workplaces.

This was to ensure that women were protected from sexual abuse. Further, Article 32 states that anyone whose fundamental right has been violated can approach the Supreme Court. Through the advent of PILs (Public Interest Litigations), there has been a drastic rise in the number of judicial activists in the country. In the landmark case of Maneka Gandhi vs Union of India, the supremacy of Article 21 (Right to Life and Liberty) of the Constitution of India was highlighted.

Now retired former Chief Justice of the Delhi High Court, Chief Justice D N Patel stated his views and opinions on judicial activism and judicial Restraint in the country. In his opinion, there needs to be a stark balance between judicial activism and judicial Restraint for the betterment of the nation. Chief Justice D N Patel further said that judges are merely responsible for interpreting the law and that making laws is not their responsibility. The legislature (Parliament) is responsible for making laws in the country.

Further, he said there is a slight gap between law and justice. There is no guarantee that justice will be done after passing a particular law. The judges have to play their allotted role to serve justice. In some instances, the judges act as gap-fillers, which is judicial activism in Chief Justice Patel's view. Due to this gap, judicial activism has to come into play. From a philosophical viewpoint, he said that judges should see the law as it is and not as it should be. The division of power is already known to all, but despite this, there has to be some balance between judicial activism and judicial Restraint.

There needs to be an equilibrium between the three closely related concepts of judicial activism, judicial Restraint and judicial overreach. The premise is that since India is a democratic country, every citizen of the country, whether naturalised or converted, is entitled to his or her original opinion. This original expression of thoughts makes India's demographically diverse nation unique from its counterparts like China, Russia and Israel. Only some countries have given their citizens such vast and distinct rights for their citizens to express themselves. When it comes to the judges' decisions, they are put in challenging situations, and while few of the decisions may be controversial, a judge is responsible for making them.

In most cases, the judge has made the decision which has to suffer from the public's wrath and try not to succumb to the pressure put by the public. In any legal scenario, judicial activism is integral because the decisions made by the judges do directly affect the lives of the masses. In the same breath, judicial Restraint has an essential role in judicial decision-making. In many crucial cases, judges are encouraged to make prudent and rational decisions based on two significant factors- precedents and the law of the land (lex loci).

There has been a plethora of cases where despite considering these two factors, there has been controversy. Precedents act as not only referral texts for the judges but, in many cases, also help guide the logical reasoning of the judges. Due to the distinct segregation of the organs of the government that the functions are separated, and roles are defined. If such segregation did not exist, then it would not have been easy to pinpoint who was responsible for whose acts precisely.

The Parliament of every country tries and attempts to do its best for its citizens. The elected representatives, including the MPs and MLAs, are elected by the people and are there because they were chosen to serve the needs of the masses. There are still countries which curb their citizens' fundamental rights, whether or not there will be a change in the stance of the Judicial Activism vs Judicial Restraint debate that is a debate for ages to come.

Link To Newspaper Article
  • Constitution of India
Articles And Research Papers
  • The Hindu
  • The Indian Express
  • The Times of India
  • The Economic Times
  • The Telegraph
  • Indian Polity by Laxmikant
  • The Oxford Companion to Politics in India by Niraja Gopal Jayal and Pratap Bhanu Mehta

Award Winning Article Is Written By: Mr.Kartik Tripathi
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