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JUDICIAL REVIEW AND JUDICIAL OVER-REACH: TRANSITION OF SCENARIO
JUDICIAL REVIEW AND JUDICIAL OVER-REACH: TRANSITION OF SCENARIO
If judicial review means anything, it is that judicial restraint does not allow everything.
-Don Willet
The modern form of India was originally formed through the Constitution of India. The constitution of this country has divided the government into three branches that serve as individuals. They work to maintain a system of checks and balances, to prevent one branch from having more power, or more than the others. The judiciary is one of the three branches of democracy, the other two being the legislature and the executive. Each branch has its own set of work that helps in the smooth functioning of a country which has a population of over one billion. It helps in creating, maintaining and defending law and order.
Judiciary is the most exclusive branch of the government. It is an essential part of the government system and has a critical role in our democracy to work. The governments depend on courts to interpret laws and citizens look to it to uphold their rights. To function smoothly, there should be independent of the judiciary. According to B.R. Ambedkar- “The people of a nation may lose confidence in the Executive (The King), or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human rights and civil liberties.” The supreme law of the land- Constitution has an ambiguous language. It also establishes the rule of law, on which the whole system of law works in the country. The meaning is taken different at different times by different people. So, it is natural that disputes might arise between the authorities regarding their power. Thus, the independent judiciary will help in maintaining balances between the authorities.
Judiciary has a great responsibility to maintain the balance between the powers of different branches. The term mainly refers to the courts, judges, magistrates and other support personnel who run the system. To maintain the dignity of the supreme law and prevent the tyranny of powers there comes a concept of judicial review. It is the power of the courts to scrutinize the actions of the legislative, executive, and administrative branches of the government. It also determines whether the actions of these arms are consistent with the constitution or not. Being the guardian of the constitution, judicial review is an essential tool to determine the validity of a rule of law.
A Judicial review of legislation is the outcome of the two very fundamental and basic features of the constitution. The first is the system, where there are two types of laws namely the supreme law and the ordinary laws that are only valid when they are consistent with the constitution. The second system is the division of government into three organs. The legislature has a job to form laws. It passes laws that are for which they are competent to pass. They would be invalid to the extent of their hostility with the constitution. ‘Judicial Review’ is something that is exercised by a court to verify the correctness of the action of some other agency related to the making of laws.
The concept of Judicial Review has its origin in the theory of limited government. This doctrine has been originated and developed by the American Supreme Court. However, there is no explicit provision in the American Constitution for judicial review. This doctrine was first acquired by the Supreme Court in Marbury vs. Madison case, 1803. In this case for the first time, the legislature had to face the review by the supreme court in the United States.
Parliament is not supreme under the Indian Constitution. The power is limited as it is divided between the center and the states. So, in India, the Supreme Court holds a position that has the power of reviewing the legislative enactments of both the Parliament and the State Legislatures. This gives the court an instrument of judicial review under the constitution. There are several specific articles in the Indian constitution for judicial review of legislation such as Article 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.
Judicial review has been seen in Constitutional amendments. The apex court has considered using the judicial review in various cases like Indira Gandhi case, Shankari Prasad case, Sajjan Singh case, Kesavananda Bharati case, Minerva Mills case and Golak Nath case. The test of the validity of Constitutional amendments is conforming to the basic features of the Constitution. It has also been seen in the various legislation of Parliament, State Legislatures and subordinate legislation. It is used for legislative competence and violation of fundamental rights. Judicial review is used for the actions of the administration of the Union of India along with State Governments falling within the meaning of State.
The Judicial review comes with a misconception of judicial control. It is very necessary to differentiate between ‘judicial review’ and ‘judicial control’. Judicial review is denoted by the system of writs which works in India under Arts. 32 and 226 of the Constitution. Whereas, judicial control is a broader term that includes all methods by which a citizen can seek relief against the tyranny of authority through the help of courts such as appeal, writs, and injunctions.
There is an expansion of this doctrine which is called judicial activism. It is a philosophy of judiciary that motivates the judges to deviate from the traditional precedents and move towards new social policies. It allows judges to use their powers to correct injustices when other arms of government do work for it. In literal terms, there is only a thin line of separation between review and activism. Review means to decide whether the law is inconsistent with the constitution whereas activism is more of a concept of behavior that a judge is concerned about. It is majorly based on speedy disposal of cases, and public interest.
For judicial activism, Article 13 is read with Articles 32 and 226 as it happens when the court has the power to review the actions of the state. The first instances of judicial activism were seen when the apex court ruled that the parliament can amend any part of the constitution except the basic structure of the constitution. The court then had to move on to make this paramount in the Maneka Gandhi case and has used many times the power with is known as Activism. Further in cases like Kesavanand Bharati Case, Maneka Gandhi Case, Gopalan case and many more landmark cases the court has taken a step further to make the condition better in society.
There is again a very thin line of difference between judicial activism and judicial overreach. It is very difficult to identify the line between the two concepts. When the judiciary crosses the limit of interfering with the functioning of the other two organs of the government and by causing a grave breach of the doctrine of separation of powers, judicial activism becomes judicial overreach. It is also called judicial adventurism. In the name of interpretation of the laws, the judiciary cannot create new laws or amend the existing laws. It must interpret laws and not interfere in the work of other organs.
Judicial overreach is nothing but an expansion of judicial activism. In recent years, it has been seen in many cases like the case of Shyam Narayan Chouksey v. Union of India, in which the court made it mandatory for all cinema halls to play National Anthem before the film starts, Proactive censorship in case of Jolly LLB 2 which is against the Cinematograph Act, 1952 and is also a violation of Article 19(2). Similar, cases have been witnessed where judicial overreach has been practiced.
The real threat is that the overreach of the judiciary aggravates the condition by creating an imbalance of power between the other two organs of the government. Judicial review and judicial overreach go hand in hand. The judiciary must take care of the matters lying against the constitution. So, the solution can be that the task of the court should be to compel the authorities to act and to pass appropriate executive orders rather than substitute judicial orders for the administrative ones. There should be a proper balance and understanding between the three organs of the government for the smooth functioning and welfare of the country.
