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Judicial Review

Though legislature has the power to make laws, this


power is not absolute. Judicial Review is the
process by which the Judiciary review the validity
of laws passed by the legislature.

 From where does the power of Judicial


Review come from: From the Constitution of
India itself (Article 13).
 The power of judicial review is evoked to protect
and enforce the fundamental rights guaranteed
in Part III of the Constitution.
 Article 13 of the Constitution prohibits the
Parliament and the state legislatures from
making laws that “may take away or abridge
the fundamental rights” guaranteed to the
citizens of the country.
 The provisions of Article 13 ensure the
protection of the fundamental rights and
consider any law “inconsistent with or in
derogation of the fundamental rights” as void.
 Under Article 13, the term ‘law’ includes any
“Ordinance, order, bye-law, rule, regulation,
notification, custom or usage” having the force
of law in India.
 Examples of Judicial Review: The striking
down of the Section 66A of the IT Act as it was
against the Fundamental Rights guaranteed by
the constitution.

Judicial Activism
Judicial activism denotes a more active role taken
by Judiciary to dispense social justice. When we
speak of Judicial Activism, we point fingers to the
invented mechanisms which have no constitutional
backing (Eg: Suo moto (on its own) cases, Public
Interest Litigations (PIL), new doctrines etc)

 From where does the power of Judicial


Activism come from: Judicial Activism has no
constitutional articles to support its origin.
Indian Judiciary invented it. There is a similar
concept in the United States of America.
 Suo Motto cases and the innovation of the
Public Interest Litigation (PIL), with
the discontinuation of the principle of Locus
Standi, have allowed the Judiciary to intervene
in many public issues, even when there is no
complaint from the concerned party.
 Although the earlier instances of Judicial
Activism was connected with enforcing
Fundamental Rights, nowadays, Judiciary has
started interfering in the governance issues as
well.
 Examples of Judicial Activism: Invention of
the ‘basic structure doctrine’ in the
‘Keshavanad Bharati case’ (1973) by which
Supreme Court further extended the scope of
Judicial Review, incorporation of due process
of law instead of procedure established by law,
collegium system, institutionalization of PIL,
banning smoking in public places based on
PIL, the order by Supreme Court in 2001 to
provide mid-day meals to schoolchildren, the
order passed by the National Green Tribunal
(NGT) banning diesel trucks older than 10
years in Delhi etc.

Judicial Overreach
The line between Judicial activism and Judicial
Overreach is very narrow. In simple terms, when
Judicial activism crosses its limits and becomes
Judicial adventurism it is known as Judicial
Overreach. When the judiciary oversteps the
powers given to it, it may interfere with the proper
functioning of the legislative or executive organs of
government.

 From where does the power of


Judicial Overreach come from: Nowhere.
This is undesirable in any democracy.
 Judicial Overreach destroys the spirit of
separation of powers.
 Examples of Judicial Overreach: What makes
any action activism or overreach is based upon
the perspective of individuals. But in general,
striking down of NJAC bill and the
99th constitutional amendment, the order
passed by the Allahabad High Court making it
compulsory for all Bureaucrats to send their
children to government school, misuse the
power to punish for contempt of court etc. are
considered as Judicial Overreach.

Examples of Judicial Overreach

 Imposition of Patriotism in National


Anthem Case.

The Supreme Court on December 2016, passed its


judgment in the case of Shyam Narayan Chouksey v.
Union of India, which makes it mandatory, that:

1. All the cinema halls in India shall play the National


Anthem before the feature film starts.
2. All present in the hall are obliged to stand up to show
respect to the National Anthem.
3. The entry and exit doors shall remain closed prior to
the National Anthem is played or sung in the cinema
hall so that no one can create any kind of disturbance.
4. The doors can be opened after the National Anthem is
played or sung.
5. The National Flag should be displayed on the screen
while the National Anthem is played in the hall.

A case of Judicial Overreach

1. Neglected the Bijoe Emmanuel Case – The court in


the order have not referred to the landmark judgment in
Bijoe Emmanuel case. In this case. In this case, three
children were expelled from the school in Kerala for not
singing the National anthem because their religion did
not permit them to join any rituals except in their
prayers to Jehovah. The court had ruled that there is
no legal provision that obliges anyone to sing the
anthem and ordered the school to take back three
children it had expelled. The court has ignored the
situations where the people may not be able to stand
up for physical reasons, intellectual or religious
reasons because they may consciously believe that
their religious beliefs, prevent them from standing up.
2. Ignored the Uphaar Tragedy Case – In ruling that
entry and exit doors be closed while playing the
National Anthem, the Supreme Court ignores its own
earlier judgment in the Uphaar tragedy case where the
court had held that under no circumstances should the
doors in a cinema be shut from the outside.
3. Implementation Issues – This order will face
implementation issues as who will count how many
people are standing and how many are sitting while the
anthem is playing? Who will see if one can’t stand up
due to physical problems or some other reasons? And
then, what if there is an emergency? What if somebody
urgently needs to go to the washroom?
4. Goes beyond the Prevention of Insults to National
Honour Act, 1971 – The direction goes beyond the
Prevention of Insults to National Honour Act, 1971,
which says that no film, drama or show of any sort can
have the National Anthem as part of the show.

 Lodha Committee report on the


Board of Control for Cricket in India

The Lodha Panel was set up by the Supreme Court,


following 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. The
recommendations made were aimed at making the
reforms and changing the year-old elite formation of
BCCI that ruled the Indian cricket at central and state
levels.

The key recommendations of the committee are:

1. BCCI should come under RTI.


2. Cricket betting should be made legal.
3. More than two consecutive terms for holding office
positions should be barred.
4. Ministers or government servants should not hold
official positions in BCCI.
5. There shall be only one post per one person.
6. Only the cricket bodies that represent states should
have full membership and voting rights in BCCI.
7. Other members of the board like All India Universities,
Railway Sports Promotion Board etc. should be given
the status of associate members without voting rights.

5.
Implications of Judicial Overreach
1. It destroys the spirit of the constitution as the
democracy stands on the separation of powers
between the organs.
2. It creates a conflict between the legislative and the
judicial system. As the message which is conveyed
with these decisions among the people is of legislative
inactivity.
3. When Judicial activism helps in strengthening the
people’s faith in the judiciary, the very act of overreach
destroys it. As it appears an act of ‘tyranny of
unelected’ in a democracy where elected
representatives rule.
4. It reduces the trust of the people in public institutions
which can be dangerous for democracy.
5. It is a waste of Judicial time, which can otherwise be
utilized for hearing various important matters relating to
public importance pending before the court.
JUDICIAL ACTIVISM
AND JUDICIAL
OVERREACH (ARTICLE
142)
Context: Judiciary is increasingly being attacked by civil
society for its new orientation towards the philosophy of
political executive and becoming a part of partisan politics.

Judicial activism:

 It is a “judicial philosophy which motivates judges to


depart from the traditional precedents in favour of
progressive and new social policies”.
 Judicial activism enjoins judges to use their powers to
correct injustices, especially when the other branches
of government do not act to do so.
 In short, the courts should play an active role in
shaping social policy on such issues as civil rights,
protection of individual rights, political unfairness, and
public morality.

Judicial overreach:When judiciary assumes the roles and


functions of the legislature and executive, thus diluting the
concept of separation of powers, it becomes judicial
overreach. Unrestrained activism on the part of judiciary
often leads to its overreach.
Article 142:
Article 142 provides that “the Supreme Court in the exercise
of its jurisdiction may pass such decree or make such order
as is necessary for doing complete justicein any cause or
matter pending before it…”

Activism can be either conservative or liberal:

 Conservative activism tends to narrow the scope of


interpretation to restrict government or individual rights.
 Liberal activism tends to broaden the scope of
interpretation to expand individual rights in keeping
with progressive social norms.

Evolution of Judicial Activism in India and its forms:

The Constitution ensures “independence of judiciary” from


government influence through fixed salaries, security of
tenure etc. but ‘independence’ is a much broader term that
also includes independence from personal biases, political
and moral beliefs, and partisan ideologies to save judges
from turning into a politician. Independence of judiciary from
executive and its relations with the executive has had a
chequered history since 1947.

Passive phase of Indian Judiciary:


 In early years after independence, there was thus little
dispute regarding the role of the Court between the
political establishment and the Court due to:
o Nehruvian era judges were drawn from amongst
the judges of the Federal Court and various High
Courts of India appointed during the colonial
government who firmly believed in the supremacy
of the Imperial Parliament.
o Courts believed that what was declared by the
Parliament was the ‘law’and it was the duty of the
courts to interpret the law as it is and uphold it. It
was based on the Anglo–Saxon tradition that a
judge does not make law; he merely interprets.
o Nehruvian era parliamentarians were statesman
and men of unity and integrity, who had
participated in the national movement. They not
only commanded respect from the people but also
from the courts.
 The courts therefore supported the Parliament in their
efforts as highlighted by:
o Gopalan Case1950: SC taking a narrow
interpretation of Article 21, held that protection
under Article 21 is available only against arbitrary
executive action and not from arbitrary legislative
action i.e. State can deprive the right to life and
personal liberty of a person based on a law.
o Shankari Prasad Case 1951:SC held that the
power to amend the Constitution, including the
fundamental rights, was contained in Article 368
and that Article 13(2) does not protect
fundamental rights if infringed by amendment of
the Constitution, as amendment is made in the
exercise of constituent power of Parliament and
not legislative power.

Activism phase of Judiciary (Judicial Activism):

 Overall the relations were cordial between judiciary


and Parliament but some dents were evident since as
early as 1950. SC’s activist decisions in
RomeshThappar v. State of Madras,
ChampakamDorairajan v. State of Madras invalidating
the laws passed by the Parliament forced the
Parliament to pass 1st Amendment Act, 1951 which
added Ninth Schedule to the Constitution.
 Kharak Singh Case 1962: It was the first case of
judicial activism on the right to liberty. SC held that
‘personal liberty’ was not only limited to bodily restraint
or confinement to person only but something more
than mere animal existence. It extends to all those
limits and faculties by which life is enjoyed.
 Golak Nath case 1967: An example of judicial
activism as SC for the first time, SC dissented from
Shankari Prasad judgement and despite the earlier
holding that Parliament can amend any provision of the
Constitution, SC declared that the fundamental rights
as enshrined in Part III of the Constitution are
immutable and not amendable.
 Kesavananda Bharti Case 1973: SC upheld the
sovereign right of Parliament to amend the Constitution
but laid the concept of ‘basic structure’ i.e. some basic
features of Constitution could not be amended by the
Parliament.
 While the creative interpretations of the text of law had
started earlier (Golaknath Case, Kesavananda Bharti),
the post-Emergency phase marked a distinct
turnaround in the Indian judiciary’s activism.
 After the ignominious failure to protect the fundamental
rights of the citizens in ADM Jabalpur vs Shivakant
Shukla (1976), the court believed aconstitutional
correction would be insufficient. So, the pursuance
of constitutional legitimacy was replaced“by a
quest for popular legitimacy”.
 Menaka Case 1978: SC overruled its judgement in the
Gopalan case by taking a wider interpretation of the
Article 21. Right to life and personal liberty of a person
can be deprived by a law provided the procedure
prescribed by that law is reasonable, fair and just. In
other words, it has introduced the American
expression ‘due process of law’.
 A series of judgements, most notably S.P. Gupta vs
President of India and others (1981), gave rise to a
new legal instrument calledpublic interest litigation,
which diluted the rule of ‘locus standi’
Due process:

o The word ‘due’ implies ‘just’, ‘proper’ or
‘reasonable’, accordingly to the judicial view.
Therefore, the Courts can evaluate whether a law
affecting a person’s life, liberty or property is
reasonable or not. The Court may declare a law
invalid if it does not accord with its notions of what
is just and fair in the circumstances.
Procedure established by law:
 It means that a law that is duly enacted by the
legislature is valid if it has followed the correct
procedure.A strict literal interpretation of Procedure
established by Law gives the legislature an upper hand
which may enact laws which may not be fair from a
liberal perspective.
 SC in India followed the ‘procedure established by law’
to evaluate the validity of a law in the initial decades
after independenceeg.Shankari Prasad Case, but later
at the onset of activist judiciary, courts started to
evaluate law on the basis of ‘due process’ i.e. fairness
and reasonableness, egMenaka Case.

Judicial Activism to Administrative Judiciary:

 Judiciary’s role got further evolved and it started


turning into administrative judiciary while assuming the
administrative functions of the executive i.e.
‘constitutional court turning into Supreme
’Administrative’ Court.
 Indian Council for Enviro-Legal Action Case 1999:
SC adopted the‘polluter pays principle’ for environment
conservation by mandating that financial costs of
preventing or remedying damage caused by pollution
should lie with the undertakings which cause the
pollution.
 BCCI Caseand Lodha report: SC removed office-
bearers of BCCI and appointed Committee of
Administrators to oversee and implement
recommendations given by Lodha panel.
 Liquor shops on highways: SC not only asked
removal of all liquor shops along highways but went on
to demarcate the precise distance in meters within
which the law had to be implemented. The verdict and
its details lacked evidence and rendered many jobless.
 National Anthem Case: SC mandated all cinema
halls to play National Anthem before the feature film
starts, during which all people should stand and the
doors should be closed prior to starting of the anthem.

Administrative Judiciary to Executive Judiciary:

 When judges or their judgments depict inclination


topartisan politics of the executive and they start toeing
in the line of executive by compromising their moral
and philosophical independence, the institution
becomes ‘executive judiciary’. The evolution of
‘executive judiciary’ is reflected in:
 Meghalaya High Court Case 2018: Recently Justice
S. R. Sen of Meghalaya HC raised doubts about
secular basis of Indian polity while stating that
“anybody opposing… Indian laws and the Constitution
cannot be considered… citizens of the country.”
 Master of Roster Issue: The Chief Justice of India
assigns cases to different benches and judges and has
sole discretion in this regard, but his/her decisions
have often been charged with bias. Example,4 senior
most judges earlier this year raised concerns that
cases of “far reaching consequences for the nation”
are “assigned selectively” to “benches of preference.”
 Though the judiciary has not completely turned into
‘executive judiciary’ but the damaging trend ought to
be contained in its early phases.

Reasons/causes for judicial activism:

 The Constitution is a written document which


elaborately mentions the powers of judicial review of
courts under Articles 32, 136, 142, 226 etc. Articles 50
enjoins upon the state to ensure separation of judiciary
from the executive.
 Gradual establishment of supremacy of human rights
in India and around the world.
 Tyranny of the central executive and its trampling of
the basic structure.
 Rise and growth of corruption followed by resentment
of people towards ineffective governments.
 Public confidence in the judiciary.
 Rise of civil society activism by using law to promote
social change through legal information, legal
education, legal assistance, and law reform. Example:
o Campaign for Judicial Accountability and
JudicialReforms (CJAR)initiated a variety of
activities to highlight and advocate for judicial
accountability like advocating for asset declaration
by judges and greater transparency in their
appointments and transfers.
o Indian Association of People’s Lawyers:
Raised the issue of allocation of various important
and sensitive cases in a manner that is violative of
court traditions, and formulating norms and
decorum to junior or handpicked judges to
maintain the integrity of the Supreme Court.

Judicial activism is needed as:

 Using judge’s wisdom when law fails: Many


sensitive issues need a different perspective and care
which laws don’t allow, hence judicial activism
allows a judge to use his personal judgement in
situations where the law fails. Example,triple
talaqcase.
 Filling the legal vacuum:It gives judges a personal
voice to fight unjust issues which though important but
evade the eye of legislature, for example, countering
harassment against women at workplace through
Vishakha guidelines.
 Legislative and executive control:It provides a
system of checks and balances to the other
government branches, like SC laid conditions for
imposition of Governor Rule in states in S.R. Bommai
Case, to bring objectivity in the application of the rule.
 Reviewing its own judgements: Courts maintain
checks and balances on themselves through judicial
review mechanism. Any verdict can be reviewed and
made better with an appeal to the court.
 Complete justice: Judicial review allows a court to do
complete justice in any case by using its powers under
Article 142 and taking suo-motu action based on its
own appraisal of the situation.

Issues with judicial overreach:

 Dilutes ‘separation of powers’:It destroys the spirit of


‘separation of powers’ between Parliament, Executive
and Judiciary, enshrined in the constitution.
 Limited experience:In many cases, courts are often
ill-equipped and lack experience to weigh the
economic, environmental and political costs involved
like liquor ban case.
 No external regulation:The executive remains
“accountable” to the people through 5 year election
process but judges exercise self-regulationand are
insulated from any external control and thus
accountable only to themselves, and their own
sense of their limits.
 Conflict of interest:Sometimes when judicial activism
is exercised it is done for solely selfish, political or
personal reasons.
 Undermines trust in Parliament:It reduces the trust
people pose in the Parliament and elected
representatives as frequent overreach signals
executive inactivity and incompetency.
 Minority rule/ Undemocratic: Judicial overreach
appears as an act of ‘tyranny of unelected’ in a
democracy.
 Wastage of court’s time:It is wastage of court’s time,
which can otherwise be used for adjudicating other
important matters relating to public importance pending
before the court.

Way-forward:

Though Article 142 and judicial review has been put to


many constructive uses but some actions, like declaring
the National Judicial Appointments Commission
unconstitutional as it tried to apply checks on judicial
powers, highlight the need for more judicial restraints in
using judicial review.

 Maintaining ‘independence’:Judiciary is expected to


maintain its primary allegiance to the law and the
Constitution i.e. to the text of legal instruments and
legal interpretation, and to the body of judicial
precedents. Though there exists a two-way interaction
between judiciary and executive but the judiciary
should keep its moral and philosophical independence
intact.
 Limiting judicial discretion: All cases invoking
Article 142 should be referred to a Constitution
Bench of at least five judges so that this exercise of
discretion may be the outcome of five independent
judicial minds.
 Review and feedback mechanism:In all cases where
the court invokes Article 142, the government must
bring out a white paper to study the effects of the
judgment after a period of six months or so from its
date.

The time has come for the Supreme Court to introspect on


whether the use of judicial review as an independent source
of power should be regulated by strict guidelines so
that, in the words of Justice Benjamin Cardozo, the judge
does not become “a knight-errant roaming at will in pursuit
of his own ideal…”