Judicial Overreach in India: Called out or Swept under the rug? | Among the three forms of Government which were constituted to maintain law and order in the Republic of India, the judiciary is arguably the most sacrosanct as it is the supreme interpreter of the longest charter among world nations[i], the Indian Constitution. The judiciary is solely responsible for bringing down the hammer of justice on the wicked when both the executive and the legislature fail in that regard, and this has received widespread fame as the term ‘judicial activism’.
Time and again, there have been sundry cases which presented themselves before the judiciary with regards to a broad range of issues such as fundamental rights, right to privacy, environmental issues, rape laws, right to equality for people with different sexual orientations and it has resulted in new precedents which favor the people of this country. Those familiar with the law need no introduction to cases such as Kesavananda Bharti[ii], Hussainara Khatoon[iii], Vishaka Guidelines[iv], Kanpur Tanneries[v], Puttuswamy[vi], Navtej Singh Johar[vii] and many more. Each of these cases, aptly termed as ‘landmark judgements’ by the legal fraternity has introduced a new dimension to the laws which pervade the nation, an example being the “basic structure doctrine” postulated by Justice Khanna in the aforementioned Kesavananda case. It is as plain as a pikestaff that throughout the years the judiciary, despite going through some rough patches[viii], have been the watchdogs who have maintained the paramountcy of the Constitution like King Arthur’s knights did to the round table. Its service towards upholding the laws of the nation to the highest level is nothing short of sterling.
This brings us to a rather interesting conundrum. If the judiciary, being the savior of democracy in this country on countless occasions consists of morally upright judges who are the harbingers of propriety, can there be a possibility that there exists a flip side to the juristic coin? Yes. There are certain members of the jury who do soil the reputation of the judicial brand. Many a times, there are errors committed by the judiciary in terms of interpreting the law, applying faulty reasoning to determine a case and delivering judgements which may not favor the people of India at large due to the binding precedents of their decisions on how the law should be interpreted. There does exist the capacity to appeal to higher courts if the lower courts deliver an erroneous judgement and judicial review, where the courts look back at past precedents established by them and if said precedents are wide of the mark, then they are overruled. And it should also be remembered that the honorable judges due to their human nature, can be prone to shortcomings.
One peculiar term has risen out of the bowels of scrutiny which is attributed to the judiciary by skeptics. It is called ‘judicial overreach’. Judicial activism and judicial overreach are separated by a very thin line. Judicial activism arises when both sister organs of the judiciary fail to act as per what is necessary and the courts must step in and compel the respective organ in question to perform its duty. Judicial overreach is when the courts frequently intervene with the executive and legislature’s functioning and dangerously comes close to encroaching upon their jurisdictions. This upsets the balance of power within the nation, weakening the other two organs and thereby establishing a single-organ hegemon.
In India, a long running critique of the judiciary has been that due to the courts embarking on a journey of judicial activism, they often obtrude upon the duties of the legislature. This belief has been spurred tremendously in the past few years as many decisions taken by the High Courts and the Supreme Court has been met with vociferous opposition by various proponents of the doctrine of separation of powers.
An illustration of this growing phenomenon is perhaps necessary to understand if this problem is discussed about or is merely glossed over by the plebeians. To start off, the Supreme Court’s ban on firecracker sales in 2017[ix] was criticized by many on the grounds that the decision was for the legislature to make via an ordinance. So was the decision to ban use of 15-year-old petrol and 10-year-old diesel vehicles[x]. Some more to be cited here are- denying the executive any role in appointing judges by establishing a collegium which is an extra-constitutional body[xi], cancelling telecom licenses in the 2G spectrum case[xii] and interference in the educational policies of the government[xiii].
The accusations against the judiciary are as recent as last month when several bizarre cases were reported by the media. On May 12, the Punjab and Haryana High Court in a brief order, dismissed the plea of a live-in couple who sought protection the relatives of the woman [xiv] in contravention a Supreme Court ruling in 2018 which decreed that married and live-in couples should be protected from the threat of violence[xv]. The reason cited by the High Court was that the petitioners were seeking a garb of approval for their live-in status which is “morally and socially not acceptable”. Many found this posturing by the High Court to be incredulous and stated that they abdicated legal responsibility. Furthermore, the Supreme Court’s decision to form a 12- member national task force for effective translocation of medical oxygen to states was again met with opposition from the government on the same ground. Here, Justice D.Y Chandrachud proclaimed that the Supreme Court was merely trying to facilitate a dialogue among stakeholders[xvi]. The apparent final nail in the coffin is Madras High Court Chief Justice Sanjib Banerjee’ impassioned tirade against the Election Commission of India where he termed them murderers and blamed them for being solely responsible for the spread of the second wave of COVID-19’s Delta variant.
The purpose of this article is not to criticize or defend the accusations hurled against the judiciary despite the possibility of doing both. It merely deals with the effervescent question: Is judicial overreach called out or is it extenuated? The truth is it is a matter of perspective. The proletarian who passionately believes in judicial infallibility is not likely to acknowledge the accusations hurled at the courts for the judges are the primus inter pares. The skeptic who appropriates the laws to his own liking and who believes that there is something wrong in the judicial system by making special note of the cases listed above (as there is no obscurantism with regards to information about cases pending before the courts) is likely to believe in the opposite. Perhaps one can narrow the spectrum of the above two viewpoints down to the Indian Left and the Indian Right respectively although the sample size of ideologues is too small to term this as a general phenomenon.
However, the answer leans more towards a ‘yes’ than a ‘no’. Countless articles written by various news outlets and government supporters have accused the judiciary of extra-constitutionality. And since all of this has been documented by the Internet, judicial overreach is indeed called out.
[i] Radhika Chugh, India has the world’s longest written Constitution, INSHORTS (November 26, 2017, 05.40 p.m.), https://inshorts.com/en/news/india-has-the-worlds-longest-written-constitution-1511698251134.
[ii] His Holiness Sri Kesavananda Bharati Sripadvalagaru v. State of Kerala, (1973) 4 SCC 225.
[iii] Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, 1979 AIR 1369.
[iv] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
[v] M.C. Mehta v. Union of India, 1988 SCR (2) 530.
[vi] Justice K.S. Puttuswamy (Retd) vs Union of India, AIR 2017 SC 4161.
[vii] Navtej Singh Johar vs Union of India, AIR 2018 SC 4321.
[viii] Vicky, 1973: When Indira Gandhi eroded the independence of the judiciary and Morarji Desai restored it, ONEINDIA (January 13, 2018, 12.09 p.m.), https://www.oneindia.com/india/1973-when-indira-gandhi-eroded-the-independence-of-the-judiciary-and-morarji-desai-2619309.html.
[ix] Arjun Gopal vs Union of India, (2017) 16 SCC 280.
[x] M.C. Mehta vs Union of India, (2018) 2 SCC 144.
[xi] Supreme Court Advocates-on-Record -Association vs Union of India, (2016) 5 SCC 1.
[xii] Subramanian Swamy vs A. Raja, (2012) 9 SCC 257.
[xiii] Islamic Academy of Education vs State of Karnataka, 2005 (6) SCALE 769.
[xiv] Gulza Kumari v. State of Punjab, 2021 SCC OnLine P&H 896.
[xv] Nandakumar vs The State of Kerala, 2018 SCC OnLine SC 492.
[xvi] Editorial, Outreach and overreach: On judicial intervention during COVID-19 crisis, THE HINDU (May 10, 2021, 01.47 p.m.), https://www.thehindu.com/opinion/editorial/outreach-and-overreach-the-hindu-editorial-on-judicial-intervention-against-the-union-governments-flailing-response-to-covid-19-crisis/article34522564.ece.
Rizvi Law College