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
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
Authentication No: JU316411725182-13-0623