Judicial Review, Activism & Overreach – What is the Difference?

In recent times there have been intense debates and speculations about increasing judicial interventions into the legislative and executive policies of the government. Being a parliamentary democracy, it is essential to understand the limitations and distinctions of the authority vested in the executive, legislative and judiciary to ensure proper cooperation and coordination within the government.

What is Judicial Review?

It is the power of the judiciary to review the constitutionality of the laws passed by the legislature and executive orders of the Centre and the State governments.
If the legislative enactments or the executive orders of either the state or the Central governments are found to be in violation of the Constitution of India during the judicial review, then the said laws or orders are termed to be null and void.
Those laws that were considered to be unconstitutional or invalid by the judiciary cannot be enforced by the government.
According to Justice Syed Shah Mohamed Quadri, the Judicial Review is classified into 3 categories. They are:

Judicial review of constitutional amendments.
Judicial review of legislation of the parliament, State Legislatures and subordinate legislations.
Judicial review of administrative action of the Union and the State and authorities under the State.

In India, though the phrase “Judicial Review” is not mentioned within the constitution, there are certain articles that explicitly grants the power of Judicial review to the Supreme Court and the High courts.

Why do we need Judicial Review?

It helps safeguard the supremacy of the principles of the constitution.
It maintains the power balance between the Centre and the State and helps the judiciary maintain the proper functioning of the government.
The Fundamental Rights of the citizens are protected.
It prevents the parliament and the executive to pass laws/policies that jeopardize any provisions of the Constitution of India.

What is the difference between Judicial Review and Judicial Activism?

Judicial Activism is very much different from the Judicial Review.
Judicial activism does not have constitutional backing while the judicial review has the legal backing through Articles 13, 131, 246, 251, etc.
Judicial activism based on the individual decisions of the judges that overlook the legal constraints and limitations. These judgments are in favor of progression and new social policies. The judgments in the judicial review cases are more of a verification process of the legality of the laws.
While the Judicial review looks into the constitutionality of the laws and policies of the government the judicial activism involves the judgments for public welfare, speedy judgments, etc.
The Public Interest Litigation comes under the purview of the Judicial Activism as it involves relaxing the norms of the “Locus Standi”. However during the PIL cases, sometimes, the courts have overreached their jurisdictions. For example, the SC had given a landmark verdict that involves banning liquor sales in retail outlets, hotels, restaurants, and bars that are located within 500m distance from highways. This is a Judicial Overreach as the matters related to the banning of liquor are an administrative matter.

What is Judicial Overreach?

The Constitution provides for judicial safety through the judiciary against illicit laws and policies of the government.
However, during recent times the judiciary is moving beyond its jurisdiction from reviewing of violation of rights to interference in the policies of the executive.
Some view it as a necessity. It helps protects human rights and maintains tolerance within society.
In essence, it is argued that by expanding the judicial powers, it helps maintain moral principles on par with the rapid changing of the laws and policies of the government.

Why is Judicial Overreach deemed to be undemocratic?

Though judiciary can be applauded for its role in guarding the moral and ethical ideals of the people, it is operating beyond its jurisdiction.
The judges within the courts are unelected not the representatives of the people.
To refute the majority opinions of the people is undemocratic in nature.
It is sometimes essential for either the executive or the legislature to make laws or policies to ensure rapid and efficient response to any problems or crisis that may arise within the nation. The judicial overreach on these issues may create a further crisis within the nation.
It breaks the very essence of our government’s structure of separation of powers between the executive, legislature and judiciary. The balance between these three is essential for the efficient functioning of the government.
While the Judicial Activism helps maintain the public confidence in the judiciary, the judicial overreach destroys the same as it may be viewed as the hegemony of the judiciary.
Though judicial overreach is sometimes essential, it sacrifices the very structure, principle, and essence of the democracy.

What are some of the examples for the judicial overreach?

Shyam Narayan Chouksey vs. Union of India:

In this case, it was mandatory:

For the theatres to play the National Anthem prior to the commencement of the featured film.
Everyone present in the cinema halls must stand up while the anthem is played or sung.
All the entry and exit doors must be shut while the anthem is played and shall be opened only after it has finished playing.
The National Flag will be displayed on the screens of the theatres while the anthem is played.

Why this case is viewed to be judicial overreach:

It is in violation of Prevention of Insults to National Honor Act, 1971: According to this act, no film/drama/show must include the National Anthem as a part of it.
Bijoe Emmanuel case: This was the case that involved the expulsion of 3 school children in Kerala for not singing the national anthem. In this case, the court’s judgment was that there were no legal provisions that make singing the Anthem mandatory.
Uphaar tragedy case: The Supreme Court’s judgment of the Shyam Narayan Chouskey vs. Union of India is in violation of its own previous judgment on Uphaar Tragedy case. In this case, the SC mandated that under no circumstances should the doors of the Cinema halls be closed.

BCCI and Lodha Committee report:

The Lodha Committee was set up by the SC following the allegations of corruption, match-fixing and betting in the Indian Cricket.
Why this case is viewed as judicial overreach:

No jurisdiction: The BCCI is registered and governed by the Tamil Nadu Societies Act. It is not run by either the center or state governments. The key appointments are based on the bye-laws within the BCCI. Therefore the Lodha committee cannot make any recommendations to the same.
Interference in the autonomous functioning of the BCCI: BCCI is an autonomous institution and no part of the government can interfere into its internal affairs without proper procedures.

Way forward

Judiciary is the guardian of democracy. However, in the recent era, when the judiciary is undertaking both the legislative an executive functions of the government, the accountability of its actions is a need of the hour to make the distinction between judicial activism and judicial overreach.
There aren’t any constitutional provisions that create boundaries for the powers of the judiciary. This lead to the emergence of judicial activism and judicial overreach.
Though the pro-active measures taken by the judiciary to safeguard the citizens from social problems are appreciable, it is essential to maintain the power balance between the executive, judiciary and the legislature to ensure that the democratic principles are not being violated by those in the position of power.

Article by: K.G.Karishma