India is the largest democracy in the world and its judiciary plays an important role to protect this status. For decades, the judiciary has played a proactive role in the protection of the rights of citizens and the promotion of justice in society.

In India, we observe the separation of power between the three organs of the government I.e. Legislature, Executive, and judiciary. These three organs function separately in their own domain to maintain the balance of power. But there's occur a time when the two organs of the government don't discharge their functions well, so to fill this gap, the judiciary enters into their domain and performs functions that are outside its jurisdiction. This is when judicial activism comes into play.

What is judicial activism?

•  Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and the promotion of justice in society. In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
• Judicial activism is also known as “judicial dynamism”. It is the antithesis of “judicial restraint”, which means the self-control exercised by the judiciary.
• In simple terms, judicial activism takes place when judges depart from normally practiced strict adherence to judicial precedent in favor of progressive new social policies.
• Judicial activism can also be defined as the process of law-making by judges. It means an active interpretation of existing legislation by a judge, made to enhance the utility of that legislation for social betterment.

The concept of judicial activism is closely related to the concept
of Public Interest Litigation (PIL). It was the judicial activism of the Supreme Court that led to the rise of PIL. In other words, PIL is an outcome of judicial activism. In fact, PIL is the most popular form (or manifestation) of judicial activism. Now after knowing the basic meaning of judicial activism, let us look into the reasons given to justify this act of judiciary.

Justification of judicial activism

According to Dr. B.L. Wadehra, the reasons for judicial activism are as follows:

1. There is a near-collapse of the responsible government when the Legislature and Executive fail to discharge their respective functions. This results in erosion of the confidence in the Constitution and democracy amongst the citizens.
2. The citizens of the country look up to the judiciary for the protection of their rights and freedoms. This leads to tremendous pressure on the judiciary to step in aid for the suffering masses.
3.  Judicial Enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages Public Interest Litigation and liberalizes the principle of ‘Locus Standi’.
   
4. Legislative Vacuum, that is, there may be certain areas, which have not been legislated upon. It is, therefore, upon the court to indulge in judicial legislation and to meet the changing social needs.
   
5. The Constitution of India has itself adopted certain provisions, which gives the judiciary enough scope to legislate or to play an active role.
   

When does judicial activism take place?

According to Subhash Kashyap, there may be certain eventualities when the judiciary has to overstep its normal jurisdiction and intervene in areas otherwise falling within the domain of the legislature and the executive. These are:

• When legislatures fail to discharge their duties.
• In the case of a 'hung legislature'. It means the government which provides the legislation is weak, insecure, and busy only in the struggle for power, and its survival and, therefore, unable to take any decision which displeases any caste, community, or other groups.
• Where the legislature and the executive fail to protect the basic rights of citizens.
• Those in power may be afraid to take honest and hard decisions for fear of losing their power.
• Where the court of law is misused by a strong authoritarian government for ulterior motives, as was sought to be done during the emergency.
• Sometimes, the courts themselves knowingly or unknowingly become victims of human, all too human, weaknesses of craze for populism, publicity, playing to the media, and hogging the headlines.

Activators of judicial activism

Upendra Baxi, an eminent jurist, has identified the following typology of social/human rights activists who activated judicial activism:

1. Civil Rights Activists: These groups predominantly focus on civil and political rights issues.
2. People Rights Activists: These groups primarily focus on social and economic rights within the contexts of state repression of people’s movements.
3. Consumer Rights Groups: These factions raise issues of consumer rights within the framework of accountability of the polity and the economy.
4. Bonded Labour Groups: These groups chiefly ask for the annihilation of wage slavery in India.
5. Citizens for Environmental Action: These groups activate an activist judiciary to take action against increasing environmental degradation and pollution.
6. Citizen Groups against Large Irrigation Projects: These activist formations ask the Indian judiciary the impossible for any judiciary in the world, namely, cease to and desist from ordering against mega irrigation operations.
7. Rights of Child Groups: These groups primarily focus on child labor, the right to literacy, juveniles in custodial institutions, and the rights of children born to sex workers.
8. Custodial Rights Groups: These groups include social action by prisoners’ rights groups, women under state ‘protective’ custody, and persons under preventive detention. They look after that decent custodial rights are being provided to prisoners.
9. Poverty Rights Groups: These groups litigate issues concerning drought and famine relief and urban impoverishment.
10. Indigenous People’s Rights Groups: These groups chiefly agitate for issues of forest dwellers, citizens of the Fifth and Sixth Schedules of the Indian Constitution and identity rights.
11. Women’s Rights Groups: These groups stand for issues of gender equality, gender-based violence and harassment, rape, eve-teasing, and dowry murders.
12. Bar-based Groups: These associations agitate for issues concerning autonomy and accountability of the Indian judiciary.
13. Media Autonomy Groups: These groups stress on the autonomy and accountability of the press and instruments of mass media owned by the State.
14. Assorted Lawyer-Based Groups: This category includes the critically influential lawyers’ groups that agitate for various laws-related causes.
15. Assorted Individual Petitioners: This category comprises freelance activist individuals.

Instances of judicial activism

1. Golak Nath Case: the court held that the Fundamental Rights guaranteed by the Constitution of India cannot be abridged or taken away by any legislation. Regardless, the Parliament again brought in the 25th Amendment to the Indian Constitution and inserted Article 31C in Part III.
2. Evolution of the basic structure of the Indian constitution: In Kesavanada Bharati Case the court held that the Parliament can amend any part of the Constitution but cannot destroy its basic structures. The power of judicial review cannot be taken out by the Parliament.
3. Protection of prisoners' rights: Court passed landmark verdicts for the protection of prisoners' rights against illegal detention, police torture, fake encounters, and inhuman treatment in cases of Joginder Kumar, people's union for civil liberties, Sunil Batra, Hussainaira Khatun, and Inder Singh.
4. Child welfare: Court in the cases of Laxmikanth Pandey, M.C. Mehta pronounced landmark judgment in the field of child welfare, their protection, and development.
5. Banning of smoking in public places: This is one of the most pronounced judgments in the field of judicial activism. Supreme Court in the case of Murli S. Deora v/s Union of India banned smoking in public places. The court in this case had recognized the harmful effects of public smoking and the absence of any legislation in this regard. The legislature thereafter enacted a new law called cigarettes and other tobacco products banning act, 2003.
6. Prevention of sexual offenses against women at the workplace: In Vishakha v/s state of Rajasthan the court laid down the guidelines for the protection of women from sexual harassment at the workplace. This was one of the most appreciated judgments of the supreme court

Advantages of judicial activism

• It addresses inaction on the part of legislature and executive.
•  Judicial activism makes the judiciary more vibrant and pro-people.
• Helps in the protection of the spirit and principles of the constitution by giving a wider definition to various articles of the constitution such as article 14, article 15, article 19, article 21, etc.
• It also promotes transparency and accountability in governance.
• Prevents arbitrary state action that curbs the fundamental rights of citizens.
• Ensures checks and balances on the executive (Eg- 2G allocation, coal scam, etc.)

Now, understanding what judicial activism means and how it is beneficial for the functioning of a vibrant democracy, let us move our focus towards judicial overreach which is very similar to it but slightly differs in its impact.

What is meant by judicial overreach?

When judicial activism crosses its limit, it is called Judicial Overreach. In simpler terms, it is when the judiciary starts interfering with the normal functioning of the legislative or executive organs of the government, even when there is no need to do so. It is undesirable in any democracy and is against the principle of separation of powers.

Instances of judicial overreach:

1. Ban on liquors: based on PIL, the SC banned the sale of liquor at retail outlets, hotels, and bars that are within 500 meters of any national or state highway. It was an administrative matter where the decision was rest on the Executive. The court was not the appropriate authority for this decision.
   
   
2. Imposition of patriotism: In Shyam Narayan Chauksey v/s Union of India, the SC made it mandatory for all the cinema halls to play the national anthem before the start of the movie. The act provides that no film, drama, or show of any sort can have the national anthem as part of the show.
   
   
3. Striking down NJAC bill and 99th Amendment: SC held NJAC bill and 99th amendment as unconstitutional and void. The NJAC Act, 2014 was enacted by the Narendra Modi government to regulate the procedure to be followed NJAC for recommending names for appointment as Chief Justice of India and other judges of Supreme Court and Chief Justices and judges of High Courts and their transfers. It was also an infamous case of judicial overreach.
   
   
4. Cancellation of 2G licenses: The Supreme Court had ordered to cancel 122 licenses and spectrum allocated to eight companies. The Supreme Court held that process of allocation was flawed and inappropriate. This is a clear case of judicial overreach wherein the court took the decision without taking into account the adverse impacts of its decision.
   
   
5. Jolly LLB 2 movie: The movie was certified by CBFC. But on the petition, the court asked the CBFC to re-certify the film as it was found that some scenes in the movie are found to be objectionable. CBFC is a statutory body and overstepping its function is surely a case of judicial overreach.

What are the apprehensions of judicial overreach?

• It destroys the spirit of the Constitution as democracy stands on the separation of powers between the different organs of the government.
• It creates a conflict between the legislative, executive, and judicial systems.
• It diminishes the trust of the people in public institutions which can prove dangerous for democracy.
• It results in the tyranny of unelected as judges assume a central role in day-to-day decision-making.
• Taking functions that should be performed by the other two organs of the government, overburdens the judiciary which is already burdened with loads of pending cases.

Conclusion

The principal role of the judiciary is to protect rule of law and ensure the supremacy of law. It safeguards the rights of the individual, settles disputes by the law, and ensures that democracy does not give way to individual or group dictatorship. In this way, the judiciary plays an important role in the protection of democracy. Its proper functioning is vital for any democracy to remain stable.

Judicial activism is a healthy approach in this direction. But anything beyond a certain limit can always cause harm, so the judicial overreach.

In recent times, the judiciary is often seen as overreaching and intruding in the space of legislature and executive. This can create unhealthy asymmetry in the delicate balance among different institutions in the country as envisaged in the constitution. Judiciary, for all purposes, must act as a guardian and interpreter of the Constitution and must observe judicial restraint wherever and whenever necessary, especially to avoid face-off either with the legislature or the executive which can shake off the harmony of Indian democracy.

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References:

• Indian polity by M.Laxmikanth
• Dr. B.L. Wadehra, Public Interest Litigation: A Handbook, Second Edition, 2009, Universal Law Publishing Co., pp.
• Upendra Baxi, “Judicial Activism: Legal Education and
• Research in Globalising India” in Mainstream, New Delhi, 24 February 1996, p. 16.
• Indian polity by Sri Ram Srirangam