Judicial Review vs Judicial Activism vs Judicial Overreach

Context: The recent Andhra Pradesh High Court order on the inquiry into a ‘constitutional breakdown’ in the State is considered as a clear case of Judicial Overreach. The setting up of a National Task Force on oxygen supply is a case of Judicial Activism. Let's understand the fine line between these two in this article. 

Relevance:
Mains: GSII-

• Structure, organization & functioning of the Executive & the Judiciary

Introduction

• The doctrine of judicial review originated and developed in the USA.
• In India, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts).
• Further, the Supreme Court has declared the power of judicial review as an element of the basic structure of the Constitution.
• Hence, the power of judicial review cannot be curtailed or excluded even by a constitutional amendment.

Meaning

• Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments.
• On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional, and invalid (null and void) by the judiciary.

Classification

Judicial review is classified into the following three categories:

1. Judicial review of constitutional amendments.
2. Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
3. Judicial review of administrative action of the Union and State and authorities under the state.

Constitutional provisions for Judicial review

The phrase ‘Judicial Review’ has nowhere been used in the Constitution. However, the provisions of several Articles explicitly confer the power of judicial review on the Supreme Court and the high courts. 

• The power of judicial review comes from the Constitution of India (Article 13).
  • Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.
• The Constitution of India also provides for judicial review under Articles 32 (Supreme Court) and 226 (High Court).
  • Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.
  • Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and any other purpose.

Scope of Judicial review

The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or the High Courts on the following three grounds.

1. it infringes the Fundamental Rights (Part III),
2. it is outside the competence of the authority which has framed it, and
3. it is repugnant to the constitutional provisions.

Judicial review in India vs the USA

• Constitutions of both countries do not explicitly mention the concept of judicial review.
• However, the scope of judicial review in India is narrower than what exists in the USA.
• This is because the American Constitution provides for due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution.
• This American principle of judicial supremacy is also recognized in our constitutional system but to a limited extent.
• Nor do we fully follow the British Principle of parliamentary supremacy. 
• What exists in India is a synthesis of both.

Importance of Judicial review

Judicial review is needed for the following reasons:

1. To uphold the principle of the supremacy of the Constitution.
2. To maintain federal equilibrium (balance between the Centre and the states).
3. To protect the Fundamental Rights of the citizens.

Application of Judicial review

• The Supreme Court used the power of judicial review in various cases, for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), and so on.
• In 2015, the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional and null and void.

Judicial review of the ninth schedule

• Article 31B saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the Fundamental Rights. 
• However, in a significant judgment delivered in the I.R. Coelho case (2007), the Supreme Court ruled that there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule.
• The court held that judicial review is a ‘basic feature’ of the constitution and it could not be taken away by putting a law under the Ninth Schedule.
• It said that the laws placed under the Ninth Schedule after April 24, 1973, are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19, and 21 or the ‘basic structure’ of the Constitution.

Introduction

• The concept of judicial activism originated and developed in the USA.
• In India, the doctrine of judicial activism was introduced in the mid-1970s.
• Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy, and Justice D.A. Desai laid the foundations of judicial activism in the country.

Meaning

• 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.
• Judicial activism is also known as “judicial dynamism”.

Judicial activism involves

1. Departing from normally practiced strict adherence to judicial precedent in favor of progressive and new social policies
2. Protecting or expanding individual rights through decisions that depart from established precedent
3. Active interpretation of existing legislation by a judge, made to enhance the utility of that legislation for social betterment
4. Judges allowing their personal views about public policy, among other factors, to guide their decisions
5. Evolving new principles, concepts, maxims, formulae, and relief to do justice or to expand the standing of the litigant and open the door of courts for needy or to entertain litigation affecting the entire society or a section of it.
6. Expansion of judicial control over discretionary powers.
7. Promotion of open government

Conditions which give rise to Judicial Activism

1. Written constitution
2. Decline of parliament
3. Overreach by executive
4. Coalition politics
5. Hung legislature
6. Growth in corruption
7. Civil society activism
8. Emergency and violation of rights
9. A political culture where judges enjoy a lot of respect
10. Personal preference of judges
11. Passivity on the part of the other two branches of government
12. When officials unable to take hard decisions for fear of losing power
13. When the legislature and the executive fail to protect the basic rights of citizens
14. When judges have a craze for populism, publicity, and hogging the headlines.

Two major legal developments have played a crucial role in strengthening the judiciary as an activist institution

1. Enlargement of the subjects considered fit for judicial resolution thought the doctrine of the Basic structure by which SC placed limits on parliament power to amend the constitution. (Keshavananda Bharathi case, 1973). This marked a significant shift in the role of the judiciary from the practice of constitutional interpretation to a creative role where the judiciary goes beyond the constitution. 
2. Emergence of substantive 'due process of law', which become a constitutional guarantee in Maneka Gandhi case (1978)

The result of these two legal developments was that a range of matters that had been part of political life, from the substantive character of constitutional amendments to the social welfare policies, were transformed into matters of law. 

Justification of Judicial activism

The reasons for judicial activism are as follows:

1. Judicial activism will act as a safety valve when parliament is in decline, the executive is not fulfilling its duty. If the judiciary closed its door, the only option left will be the revolution.
2. To avoid erosion of the confidence in the Constitution and democracy amongst the citizens.
3. 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 of the suffering masses.
4. Judicial Enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages PIL and liberalizes the principle of ‘Locus Standi’.
5. Legislative Vacuum makes courts indulge in judicial legislation and meet the changing social needs.
6. The Constitution of India has itself adopted certain provisions, which give the judiciary enough scope to legislate or to play an active role.

Is judicial activism desirable?

• There are different opinions about its desirability.
• Conventionally it is believed that the judiciary has neither expertise nor resources to micro-manage administration.
• In contemporary times it is believed that the era of literal legalism is over and the era of judicial activism has started, where the court is seen as a political and public institution that can answer social & political disagreement.
• If the judiciary doesn’t go for activism, it means judges are trying to escape from responsibilities.
• Scholars like Upendra Baxi believe that the SC of India is essentially acting as an institution of governance and not merely settling disputes. 

Judicial activism in India has protected:

1. Sanctity of constitution
2. Strengthened Human rights
3. Tried to address corruption
4. Filled gap when there was policy paralysis
5. Tried to bring Electoral reforms
6. Strengthened substantive justice in the context of the Right to education, right to food, etc.

Judicial review and Judicial activism

• The concepts of judicial review and judicial activism are closely related to each other. But, there is also a difference between them
• Judicial review is the ordinary function of the judiciary of reviewing legislative & executive decisions in the constitutional context. 
• However, when the judiciary does not limit itself to the task of Judicial review & starts suggesting what should be the law and starts taking responsibility for implementation it amounts to a case of judicial activism. 
• Thus, Judicial activism is a form of Judicial review in which judges participate in law-making policies, i.e., not only do they uphold or invalidate laws in terms of constitutional provisions, but also exercise their policy preferences in doing so.
• And the concept of judicial activism is inherent in judicial review.
• Judicial activism stresses the importance of judicial review and a powerful judiciary in the protection and promotion of certain core rights.

Judicial activism vs judicial restraint

• Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; their job is merely to say what the law is, leaving the business of lawmaking where it properly belongs, that is, with the legislators and the executives.
• There is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on others’ domain. 
• Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state. It accomplishes this in two ways:
  1. Judicial restraint not only recognizes the equality of the other two branches with the judiciary, but it also fosters that equality by minimizing inter-branch interference by the judiciary.
  2. Judicial restraint tends to protect the independence of the judiciary. When courts encroach on the other branches, the activities of judges will be closely monitored.
• However, Judicial activism or judicial restraint by itself is neither a virtue nor a vice. It all depends on the context.
• Few developments in the superior courts of India in recent times have evoked such enthusiasm and interest and also some criticism as judicial activism.

Meaning

• Judicial overreach is when the judiciary oversteps and dons the mantle of the executive and the legislature.
• Under it arbitrary, unreasonable, and frequent interventions are made by the judiciary into the legislature’s domain, often to disrupt the balance of powers between the executive, legislature, and judiciary.

Judicial activism vs judicial overreach

• When judicial activism goes overboard and becomes judicial adventurism, it is called judicial overreach.
• The dividing line between judicial activism and judicial overreach is a thin one.
• While in cases related to labour policy (eg minimum wages, working conditions, etc) and also in respect of issues related to environmental and ecological matters judicial behavior can be perceived to be proactive, judicial intervention in matters related to fiscal policy, (political affairs, internal proceedings of the legislature, etc) can be categorized as judicial overreach.
• What makes any action one of activism or overreach is based entirely upon the perspective of the citizens of the country and is, hence, difficult to regulate.
• This establishes the onus even more on the judiciary to be more cautious and particular in the PIL and suo moto cases they choose to address.

Instances of Judicial overreach:

• Police reforms case
• The sealing of unauthorized commercial operations in Delhi
• Demolition of unauthorized constructions in the city of Chennai and the creation of a Monitoring Committee to oversee the same
• The Supreme Court’s directions to videography the proceedings of the Jharkhand Assembly
• The creation of a high-powered Committee to monitor parking charges; the wearing of helmets; parking space; one-way traffic; black film or vehicle windows; removal of billboards;
• The usurping of the functions of the TN Public Service Commission by the High Court in the matter of recruitment of District Judges;
• Interference in the educational policies of the Government in examples such as the TMA Pai Foundation case and the Islamic Academy case

Why judicial overreach is harmful? 

• Violates the principle of separation of powers.
• Frequent interventions tend to weaken the functioning of those two wings of the constitution, which are expected to perform by themselves.
• Interfering with the proper functioning of the legislative or executive organs of government is undesirable in any democracy.

Case Study of National Task Force (NTF) set up by the Supreme Court

• In the wake of the oxygen supply crisis in Covid-19 management, the Supreme Court has set up a 12-member National Task Force to guide the central government allocation of medical oxygen to the states.
• The task force will work with senior officials of NITI Aayog, the Ministry of Home Affairs, DPIIT, AIIMS, ICMR, and the Directorate General of Health Services. 
• A long-term and effective pandemic response needs broader additional expertise than medical care. The NTF will have the responsibility to ensure that India does not end up with a medicalised response to a public health challenge.
• Managing Public health crisis is the domain of the executive and here supreme court stepped into the executive's domain.
• However, it is not considered as Judicial overreach, because the public at large considers the supreme court's intervention as necessary.
• This is because the government is struggling to mount an effective response to the second wave of the pandemic.
• Hence, it is a case of judicial activism.
• It is hoped that the establishment of the NTF will help the decision-makers with inputs that can enable them to go beyond ad hoc solutions to the unprecedented challenge. 
• It ensures the participation of independent subject experts in policy decisions, which have often been criticized as being overly led by a techno-bureaucratic process. 

Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate.

• This is also known as the system of checks and balances because each branch is given certain powers to check and balance the other branches.
• Each branch has separate powers, and generally, each branch is not allowed to exercise the powers of the other branches. 

Article 50 of the Indian constitution

According to article 50 of the Constitution Of India, the State shall take steps to separate the judiciary from the executive in the public services of the State.

Evolution of the doctrine in India

• Apart from the directive principles laid down in Part-IV of the constitution which provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic division of powers.
• It appeared in various judgments handed down by the Supreme Court after the Constitution was adopted.
• It is through these judicial pronouncements, passed from time to time, that the boundaries of applicability of the doctrine have been determined.

Re Delhi Laws Act case

• In the Re Delhi Laws Act case, it was for the first time observed by the Supreme Court that except where the Constitution has vested power in a body, the principle that one organ should not perform functions that essentially belong to others is followed in India.
• By a majority of 5:2, the Court held that the theory of separation of powers though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself.
• In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities, and relationship with one another.
• Also, that it can be assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution.

Kesavananda Bharti Case

• The court ruled that the doctrine of separation of powers was a part of the “basic structure” of our Constitution.
• Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our Constitution.
• As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly recognized as a part of the Indian Constitution, unalterable even by an Act of Parliament.
• Thus, the doctrine of separation of powers has been incorporated, in its essence, into the Indian laws.

Indira Nehru Gandhi v. Raj Narain

• However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the Indian context was made clearer.
• It was observed by Chandrachud J: “That is the Indian Constitution, there is the separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India.”

Judicial review must have limits

• Judicial review is a legitimate domain of the judiciary but a limit or boundary has to be drawn.
• The exercise of the power of judicial review has to be robust and balanced.
• Judiciary, like all institutions in a democracy, should be accountable and know its limits.

The principle of separation of powers must be upheld

• The acknowledgement of the difference between “judicial activism” and “judicial overreach” is vital for the smooth functioning of a constitutional democracy with the separation of powers as its central characteristic and supremacy of the constitution as the foundation of its edifice.
• Judicial activism has benefitted the country but it does not mean that country should be run by judges.
• Judicial activism can be medicine but it cannot become a daily need.
• Just as the independence of the judiciary is a part of the basic structure of the Constitution, the principle of separation of powers is also a part of that basic structure.
• Judiciary must only look at “genuine” issues such as compensation, working conditions of the working classes, and so on.
• Governance and lawmaking should be left to elected members who are accountable to the legislature.