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Question – Though judicial activism has made the judiciary more people friendly, there is also a negative side to the idea of a pro-active judiciary in the form of judicial overreach. Discuss with examples.
- January 25, 2023
- Posted by: Pallavi Singh
- Category: Blog
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Answer:
Judicial activism is an approach to the exercise of judicial review in which judiciary is generally more willing to decide on constitutional issues and to invalidate or subordinate the legislative or executive actions.
Judicial review has evolved under article 32 of Indian constitution which ensures the fundamental rights of people. Since fundamental rights have been evolved to include almost all aspect of life of people, judiciary has also taken keen interest to safeguard same. It has been very helpful for judiciary to increase its overreach and positive influence on people.
But there are some instances when it has been found that the same judicial review process of judiciary is overlapping with the areas of governance of legislatures and executives. It is where negative side of judicial review comes in the form of judicial overreach. Some examples could be discussed as below:
1) The issue of judicial appointments: The NJAC provided a say of executive in the appointments of judges, but has been declared void by judiciary. It impacts the accountability and also the overall functioning of the judiciary.
2) The judiciary has given judgement on most matters which fall under domain of executive, which no doubt beneficial for the public such as: control over automobile emissions, air and noise and traffic pollution, orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, compulsory wearing of seat belts, banning of fire crackers, etc.
3) The Supreme Court has directed the most complex engineering of interlinking rivers in India.
4)The Court has ordered the exclusion of tourists in the core area of tiger reserves.
5) The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. For eg. investigation in cases such as Hawala, fodder scam, Taj corridor case, 2G spectrum case, etc..
Even though protection of Fundamental Rights under Article 32 is the premise for such activism, in reality, the Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
These examples indicate that judiciary is overreaching the domains of legislatures and especially to the domain of executives. The negative side of this overreach is that it endangers democratic establishment of the country as well as may destabilize the governing machinery of the country.
But it has to be also seen that judiciary is extending its limits only when it sees or people approach it to interfere with the process since the other two organs of the government fail to function effectively, due to political reasons.