JUDICIAL ACTIVISM V JUDICIAL OVERREACH: DEFINING BOUNDARIES

1. INTRODUCTION

• WHY THIS TOPIC MATTER?

Judiciary plays an important role to protect the rights of the citizen and to promote the justice for the people. Judiciary derives its power from the Constitution and constitution separates the three organs of the government so that the power can’t overlap but judicial activism and judicial overreach raises the concern over the separation of powers between the legislature, executive and the Judiciary.   

• KNOW YOUR RIGHTS

Constitution provides every citizen the remedy to go the higher court directly if their fundamental rights are violated under Article 32 and Article 226. Judiciary ensures that justice must be served to every citizen but to provide justice if judiciary go beyond their domain its called judicial overreach, which affect the principle of the constitution.  

• AN INTRODUCTION TO JUDICIAL ACTIVISM AND JUDICIAL OVERREACH

When the court actively participated in the law making decision to protect the rights of the citizens while filling the gaps between the legislature and the executive within the constitutional spirit called judicial activism. Whereas when the court cross the fine line drawn between the three organs to interpret the law according to its own and beyond the constitutional mandate it is called Judicial Overreach.  

2. LEGAL BACKGROUND

• WHAT THE LAW SAYS

India follows the Doctrine of Separation of Powers embodied under the constitution of India to keep the check and balances between the three organs of the government. This Doctrine comes under the Basic Structure of the Constitution, and if there is any overreach or violation of the basic structure than the Court have the power of judicial review. 

• LEGAL PROVISIONS YOU SHOULD KNOW

ARTICLE 32 is said to be the heart and soul of the Constitution. It provides the right to directly approach the Supreme Court in case there is a infringement of the Fundamental Right. This Article also lays down certain writs which the Supreme Court issue depending upon the facts and circumstances of the case.

Article 226 provides power to the high court to order writs in case of breach of Fundamental Rights or any other rights.

RELEVANT ARTICLES

• Article 142  gives enormous powers to the Supreme Court to introduce new means and mechanism to do complete justice. Supreme Court has invoked this Article in many instances in interest of justice where the Supreme Court has delivered the judgment in such a manner as to give Precedents on the matter where laws were silent.
• Doctrine of Basic Structure: – The Doctrine of Basic Structure was propounded in the case of Keshvananda Bharati v State of Kerela (1973). According to this Doctrine the Legislature cannot amend constitution in such a way as to dilute the basic structure. The basic structure of the constitution involves Separation of Power, Rule of Law, and Supremacy of the Constitution, Judicial Review, and Independence of Judiciary etc.  Judiciary has the power to declare as void the amendments of the legislature that shake the basic structure of the Constitution. 

3. KEY POINTS

• YOUR LEGAL RIGHTS EXPLAINED

Judicial Activism protects yours rights when legislative and the executive fails to do so or in case where the laws were silent. However judicial overreach is done when in order to protect your rights judiciary crosses the boundaries made by the Constitution. 

• KEY PROVISIONS AT GLANCE

1. PIL (Public Interest Litigation) is an important aspect of Judicial Activism.
2. Judiciary acts as a guardian of the constitution.
3. Judicial overreach affect the doctrine of Separation of powers and the basic structure.
4. Judicial Review ensures constitutional Supremacy.

• 5 THIINGS YOU MUST KNOW

1. PIL are both powerful and sometimes misused.
2. Overreach of Judiciary threatens the Democracy.
3. Balancing between Judicial Activism and Judicial Overreach is important.
4. Separation of power helps to keep the check and balance on the all three organs of the government.
5. The main aim of the Judicial Activism is to protect the rights of the citizens in one way or the other.

4. REAL LIFE APPLICATION

• HOW THIS AFFECTS YOU

If your rights are violated and the government agencies fail to provide justice, Judicial Activism allows you to seek remedies directly in court under Article 32 and Article 226 of the Indian Constitution. In case there is a Judicial overreach to provide justice to the victims , Supreme Court have the power of Judicial Review over the judgement.

• WHEN CAN YOU USE THIS RIGHT

1. In case there is a violation of the Fundamental Rights or any other rights.
2. In case there is negligence by the government to any inaction towards a fact.
3. In cases of Environmental Protection (Pollution, Deforestation etc.)

• EXAMPLE FROM REAL LIFE

• Vishakha v State of Rajasthan (1997) In this case the Supreme Court provide guidelines on Sexual Harassment at Workplace , as there is no such laws at that time who governs issues like this. As a result of these guidelines The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was enacted.
• Lalita Kumari v State of U.P (2014) In this case the Supreme Court provides the guidelines related to the mandatory registration of the FIR in the cases of cognizable offences.
• Sunil Batra v Delhi Administration (1978):- In this case the Supreme Court expanded the rights of the prisoners. It also provided for the guidelines to prevent torture and inhumane treatment of the prisoners. Thus, this case is an example of Judicial Activism whereby the Supreme Court safeguarded the fundamental rights of the prisoners. 

5. LEGAL REMEDIES

• WHAT TO DO IF YOUR RIGHT IS VIOLATED

If your right is violated you can approach the court to seek remedy and if your fundamental rights are violated than you can directly approach the court under Article 32 and Article 226.

• HOW TO FILE A COMPLAINT

1. You have to draft a petition stating the violation of your rights.
2. Approach a lawyer for further guidance or you can file a PIL directly to a High Court or Supreme court.
3.  Submit your Petition in the appropriate court.

• WHERE TO GO FOR HELP

1. High court , Supreme Court
2. Human Rights Commission.
3. Legal Aid Services Under Article 39A

6. LANDMARK CASE LAWS

• Keshvananda  Bharati v State of Kerela (1973) :- In this case the question before the Court was Whether the Parliament have the power to amend the Constitution under Article 368 or not. The Supreme Court held that the Parliament can amend any part of the constitution but cannot alter the Basic Structure of the Constitution as it is the violation of the Fundamental Rights. 

• I.R Coelho v State of Tamil Nadu (2007):- In this case there was question on the laws placed in the 9^th Schedule of the Constitution which immunizes them from the Judicial Review. The Supreme Court held that Judicial Review is a part and parcel of the Constitution and comes under the basic structure so the laws placed under the 9^th Schedule is subject to Judicial Review if its violates the Basic Structure Doctrine.

• Aruna Shanbaugh v Union of India (2011):- In this case Aruna Shanbaugh is in a vegetative state for 42 years due to a brutal rape case, the petition was filed for Active Euthanasia (Mercy Killing),but the Supreme Court  rejected the petition and does not allow Active Euthanasia as there is no law which deals with mercy killing,  instead  stepping into the moral and legal issue the court  allows the Passive Euthanasia(Omission of an act to provide ventilators or food or medicine ) under the strict guidance. The court also gave direction to the Parliament to make laws on this matter to provide justice to the people.

CHALLENGES

• COMMON MISUNDERSTANDINGS

1. Judicial activism is Supremacy of the Constitution of India but people often get confused between Activism and Overreach.
2. PIL is known as the tool for judicial Activism but sometimes it was misused for Publicity and Political Agendas.
3. AREA OF CONCERN

1. Excessive interference in the policies of other organs of the  government.
2. Judicial overreach concerns the democratic principles.
3. Judicial Overreach leads to the Violation of the Basic Structure Doctrine 

CONCLUSION 

• KNOW THE LAW, USE THE LAW

Judicial Activism helps to strengthen the democracy by protecting the rights of the individual but it must be exercised within the constitutional spirit to avoid the judicial overreach.

• FINAL THOUGHTS

Judicial Activism is important if other organs fails to provide justice but the balance between the Activism and Overreach must be maintained so that there is no violation of the democratic principles. 

• STAY INFORMED, STATY EMPOWERED

As the citizen we must know when to approach the court in case there is violation of any rights, as it empowers us to protect our rights while respecting the roles of the democratic institutions.

7. REFERENCES

• Constitution of India
• Doctrine of Separation of Powers by Montesquieu 
• Vishakha v State of Rajasthan (1997)
• Lalita Kumari v State of U.P (2014)
• Keshvananda  Bharati v State of Kerela (1973)
• I.R Coelho v State of Tamil Nadu (2007)
• Aruna Shanbaugh v Union of India (2011)

Written by Anamika Kumari, student of Panjab University Regional Center, Hoshiarpur, Punjab, and an intern under Legal Vidhiya.

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