Judicial Activism in India: A Historical Overview and Its Significance, Cheat Sheet of Law

Download Judicial Activism in India: A Historical Overview and Its Significance and more Cheat Sheet Law in PDF only on Docsity! Nature of Judicial Process Judicial activism signifies the proactive role of the Judiciary in protecting the rights of citizens. The practice of Judicial Activism first originated and developed in the USA. Origin: The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947 in his article “The Supreme Court: 1947,” which appeared in the January 1947 issue of Fortune Magazine. The foundation of Judicial Activism in India was laid down by Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai (IBRD). The theory of judicial activism emerged during the judicial review process in the United Kingdom. The British Constitution is an example of an unwritten constitution that allows for judicial activism. During Stuart’s reign (1603-1688), the unwritten constitution created the possibility of judicial review, and thus judicial activism was born.  The judicial review principle was established in 1610 by Justice Edward Coke. In the Thomas Bonham v. College of Physicians case, he made the decision that any law passed by parliament that is against common law or reason can be reviewed and declared void by the courts.  The first significant case involving the idea of judicial review was Madbury v. Madison (1803) in which the US Supreme Court explicitly declared certain provisions of the Judiciary Act of 1801 unconstitutional. For the first time in American history, a court declared a piece of legislation to be unconstitutional. Since the Supreme Court ruled that federal courts have the authority to invalidate unconstitutional laws, judicial review has gained popularity in the United States. What is judicial activism  The concept of “judicial activism” is opposed to the idea of “judicial restraint.” Both of these terms are frequently used to describe the assertiveness of judicial power, and they are also used from the perspectives of personal and professional views, putting the courts in a position to lean towards one of the views to play the appropriate role. The terms “judicial activism,” “judicial supremacy,” “judicial absolutism,” “judicial anarchy,” and others are frequently used interchangeably in the US. The term “judicial activism” is also regarded as ascriptive. This implies that the judges’ performance is based on their ideologies, opinions, values, and interests.  The scope of judicial activism is so broad that no precise definition exists. It does not have a statutory definition because each jurist or scholar defines it differently. Supporters of judicial activism claim it to be a proper form of judicial review. In contrast, Thomas Jefferson refers to it as the ‘despotic power’ of Federal Judges. According to V.D. Kulshrestha, judicial activism occurs when the judiciary is charged with actually participating in the law-making process and subsequently emerges as a significant player in the legal system.  In contemporary definite terms, judicial activism is frequently seen as a way to correct executive faults by using democratic power within the limits of the Constitution. It is said that judicial activism empowers judges to act as individual policymakers and independent trustees on behalf of the citizens of the country, in addition to their traditional role. In general, judicial activism refers to the judiciary’s proactive role in correcting errors made by the executive or legislative branches to ensure the efficient coordination of all three crucial pillars. Evolution of judicial activism in India  In the early years after independence, India’s courts were technocratic in nature. Although the goal of justice did not always coincide with this fundamental aspect of how courts functioned, the judiciary was more concerned with following the procedures that were expected of it. To put it another way, the majority of judges at the time were not as creative and did not bother to look for ways to carry out the goal of justice for which they held their positions. Some judges in the British Empire and a newly independent India went out of their way to issue decisions that are now regarded as foundational examples of judicial activism.  The beginning of judicial activism can be traced back to 1893 when Justice Mehmood of the Allahabad High Court issued a dissenting decision that sowed the seeds of activism in India. The case involved an undertrial who couldn’t afford legal representation. In his dissenting opinion, he criticised the rule that appeals should be dismissed solely on the basis that the appellant is unable to pay for the translation and printing of the record in English. This amounted to some form of activism meant to defend the severely harmed undertrials. Although it didn’t sit well with the English judges on the bench, J. Mahmood was forced to resign for using these tactics in court.  Furthermore, the concept of judicial activism in India gained more traction in the late 1960s or early 1970s, when Mrs. Indira Gandhi served as Prime Minister and Mohan Kumaramangalam, a renowned attorney and legal luminary, served as the Union Minister. In order to better serve the interests of the poorer sections of society, the late Mrs. Gandhi attempted to put into practice her favourite slogan, “Garibi Hatao” (remove poverty), by abolishing the privy purses and privileges granted to the former rajas and princes of the princely States of pre-independent India and nationalising the 14 major banks. However, the conservative judiciary took it personally and overturned her attempts. Mrs. Gandhi responded strongly and unequivocally, viewing the Supreme Court of India’s ruling in the Privy Purse abolition and bank nationalisation cases as an example of judicial overreach. On the recommendation of Mr. Kumaramangalam, it is believed that the conservative and senior Supreme Court justices who participated in the majority decisions in the aforementioned cases were passed over for appointment to the position of Chief Justice of India. The appointment of the dissenting judge, Mr. A.N. Ray, who was fourth in the line of seniority, led to the resignation of the three senior was seen as violative of Article 19(2), as it imposed restriction on freedom of speech and expression. On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops, restaurants, bars within 500m of any national or state highway. There was no evidence presented before the court that demonstrated a relation of ban on liquor on highways with the number of deaths. This judgement also caused loss of revenue to state governments and loss of employment. The case was seen as an Overreach because the matter was administrative, requiring executive knowledge. How is it Manifested?  Through Judicial Review – Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Judicial review is an example of check and balances in a modern governmental system. Judicial review is adopted in the Constitution of India from the Constitution of the United States of America. It gives power to the Supreme Court to examine the constitutionality of any law and if such a law is found to be inconsistent with the provisions of the Constitution, the Court can declare the law as unconstitutional.  Through Public Interest Litigation: PIL means a suit filed in a court of law for the protection of public interest. Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act. In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections of the society who due to poverty and ignorance were not in a position to seek justice from the courts.  Through Constitutional Interpretation: Constitutional interpretation comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the Constitution. The possible sources for interpretation include the text of the Constitution, its "original history," including the general social and political context.  Through Access to international statutes for ensuring constitutional rights: The court refers to various international statutes in its judgements. This is done by the apex courts to ensure the citizens of their rights.  International Law is referred to by Supreme Court's judgments in many cases. Example: Recently, SC reaffirmed the rights of disabled person to live with dignity in Jeeja Ghosh v. Union of India. The court underlined the Vienna Convention on the law of treaties, 1963 which requires India's internal legislation to comply with international commitments. Early cases of judicial activism  During the reign and dominance of British courts, the Supreme Court functioned as a technocratic court, but it gradually began to take an activist stance. The first landmark case in this regard was A.K. Gopalan v. the State of Madras (1950), in which a writ was filed to determine whether detention without trial was a violation of fundamental rights under Article 14, 19, 21, and 22. The Supreme Court opined that the written Constitution contains the authority for judicial review. Even though the challenge was unsuccessful, it did start a new legal trend that became apparent in the years that followed.  Doctrine of prospective overruling – The doctrine of prospective overruling first appeared in the American legal system. It states that a decision made in a specific case will only affect the future and will have no retrospective effect on previous decisions. In Golaknath v. State of Punjab (1971), the Supreme Court of India pioneered the idea of “prospective overruling” while addressing the constitutional validity of the 17th Amendment to the Constitution and determined that Parliament lacked the authority to amend Part III of the Constitution or to abridge any of the fundamental rights.  Doctrine of basic structure – In Keshavananda Bharti v. State of Kerala (1973), the Supreme Court issued a decision that is regarded as a watershed moment in Indian constitutional jurisprudence. While addressing the scope of the amending power conferred by Article 368 of the Constitution, the Court developed the theory of “basic structure.” By a 7:6 majority, a Bench of 13 judges ruled that Parliament had broad powers to amend the Constitution but that power must not abridge or destroy the basic structure or basic framework of the Constitution.  Habeas corpus case – The case of ADM Jabalpur v. Shivkant Shukla (1976), in which Article 21 was brought up, resulted in the most contentious Supreme Court decision regarding judicial activism. The majority of the Bench hearing the case of ADM Jabalpur held that in cases of dire emergencies, such as those that existed between 1975 and 1977, a legal procedure could be established, following which even human life could be taken away. Although Justice Chandrachud, who wrote the decision, faced criticism for penning a pro-government opinion, the legal theory he advanced was an excellent illustration of judicial activism. Justice Chandrachud has interpreted Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to maintain the country’s sovereignty if it is threatened by either internal or external aggression.  In the case of Maneka Gandhi v. Union of India (1978) , Maneka Gandhi argued that the government had violated her personal freedom by seizing her passport. The court ruled that the seizure of the passports was unlawful. The A.K. Gopalan case ruling was overturned by the Supreme Court, ensuring the legitimacy of personal liberty under Articles 14, and 21.  In Minerva Mills v. Union of India (1980), the Supreme Court rejected the attempt by the government to overturn the Kesavananda Bharti decision and usurp unrestricted power to amend the Constitution to its liking. As a result, the Court decided that judicial review is an essential part of the legal system and that Parliament is not permitted to broaden the purview of the previously granted limited powers.  Furthermore, Justice P.N. Bhagwati, India’s father of judicial activism, strengthened the concept in several decisions, including Hussainara Khatoon v. Home Secretary, State of Bihar (1979), and Khatri v. the State of Bihar (1981).  Thus, the evolution of judicial activism in India can be divided into three broad stages: a) 1950-1970: The period of the classical judiciary, which did not engage in any kind of activism. b) 1970-2000: The period in which the judiciary and judges established the concept of judicial activism and it gained popularity. c) 2000-till now: Judicial activism has flourished and touched various aspects, but it has also been infested by judicial overreach. Constitutional powers of the Supreme Court and High Courts in India – Judicial activism is the practice of using the courts’ authority to examine state actions. According to Articles 32 and 226 of the Indian Constitution, the higher judiciary has the power to consider any legislative, executive, or administrative action as unconstitutional and void if it does so. One of the core provisions of the Indian Constitution is the right to judicial review.  Article 32 – It provides that every person has the right to directly file a case with the Supreme Court of India for the enforcement of their fundamental rights. Any fundamental right under Article 32 may be enforced by an order or writ issued by the Supreme Court . The Supreme Court held in Fertilizer Corporation Kamgar Union v. Union of India (1981) that the Supreme Court’s authority granted by Article 32 is an important part of the fundamental framework of the Indian Constitution because “it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.” It cannot be suspended, even in an emergency. In many cases, the Supreme Court has increasingly used a very liberal interpretation of Article 32 to uphold fundamental rights even when faced with private entities performing public duties.  Article 226 – It provides that the High Courts have the power to issue any suitable order or writ for the enforcement of basic rights and other legal rights. In this case, it appears that the High Court’s jurisdiction under Article 226 goes beyond the Supreme Court’s jurisdiction under Article 32. Articles 32 and 226 form the foundation of the Indian Constitution. Furthermore, the High Court was also granted authority over lower courts, tribunals, and special courts by Article 227.  Article 136 – In addition, the Supreme Court may grant special leave to appeal any judgment, decree, determination, sentence, or order made by any court or tribunal in any cause or matter . In situations where there has been grave injustice or there is a significant legal issue, the Supreme Court uses its unique authority. With the discretionary authority provided by Article 136, a case may be decided in accordance with justice, equity, and good conscience. However, it In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court ruled that Parliament had expanded its limited power of amendment contained in Article 368 into absolute power. In Kihoto Hollohan v. Zachillhu, the Supreme Court determined that paragraph seven of the Constitution’s 10th Schedule, which prohibited judicial review of the Speaker’s or Chairperson of the House’s decision regarding the disqualification of MLAs or MPs, violated the basic structure of the Constitution. Article 21 and judicial activism – If there is a Supreme Court decision that has revolutionised the interpretation of Article 21, which safeguards the right to life and personal liberty, it is Maneka Gandhi v. Union of India (1978). This decision has awakened the Indian judiciary from a persistent state of dormancy with regard to the right to life and the freedom of the individual guaranteed by Article 21 of the Constitution. A new interpretation of Article 21 of the Indian Constitution was provided by the Supreme Court of India in the case of Maneka Gandhi v. Union of India. It set a great precedent for the further evolution of concepts of reasonableness and fairness. According to the Supreme Court, the concept of life encompasses not just a mere animal existence but also an existence with all the rights that entails. The Supreme Court declared for the first time that simply outlining a process for denying life and liberty is insufficient; the process itself must be just and reasonable. In the case of P. Rathinam v. Union of India (1994), the Court was asked whether the right to die falls under the purview of the right to life. The majority of the Bench found that it does, and Section 309 of the Indian Penal Code was ruled invalid and unconstitutional. This was overruled in the case of Gian Kaur v. State of Punjab (1996), where the Court ruled that while Article 21 does include the right to die with dignity, the right to life does not include the right to die and that committing suicide is punishable under Indian law. Furthermore, the Supreme Court determined that passive euthanasia is covered by the definition of the right to life under Article 21 in one of the most well-known cases, Common Cause (A Regd. Society) v. Union of India (2018). The right to privacy is now recognised as an essential component of the right to life and personal liberty. The sanctity of a person’s private sphere is upheld by the ruling in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2018). The “right to be alone” is only one aspect of the right to privacy, and it has grown significantly since then. It includes the freedom to make important personal decisions without unjustified state interference, including those involving intimate sexual behaviour. In the case of Navtej Singh Johar v. Union of India (2018), the Supreme Court declared a portion of Section 377 of the Indian Penal Code to be unconstitutional and stated that it “violates the right to life and liberty guaranteed by Article 21, which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions of a human being”. In the case of Shakti Vahini v. Union of India (2018), the Supreme Court ruled that the right to choose one’s life partner is a fundamental right protected by Article 21 and ordered the government to take all reasonable preventive steps to prevent honour killings and related crimes. The pro-environmental stance of the judiciary The Indian judiciary has taken an active role in protecting the environment for the benefit of the population. Given that a pollution-free environment was deemed to be a fundamental right pursuant to Article 21 of the Constitution, the Indian judiciary deserves all the credit for sustainable development and environmental protection. The courts have decided on a number of historic rulings requiring public bodies to address environmental issues. One of the judiciary’s most crucial tools was Public Interest Litigation. Several cases involving environmental protection, preservation, and sustainability have been handled through PIL, making environmental protection a constitutional duty and obligation. The principles and doctrines that have enriched environmental jurisprudence have steadily grown as a result of PIL cases and the accompanying activist approach of the judiciary. The Indian Supreme Court’s interpretation of the scope of the authority granted by Article 32 of the Indian Constitution to issue directions and orders ‘whichever may be appropriate’ in appropriate proceedings led to the establishment of the doctrine of absolute liability for harm brought on by hazardous and inherently dangerous industries. There are no exceptions to the newly developed doctrine of absolute liability for damages brought on by industry engaged in hazardous and inherently dangerous activities. This doctrine substitutes the English common law’s strict liability rule. This rule was developed in the case of M.C. Mehta v. UOI, also known as the “oil gas leak case.” The Court in the above case held that the addition of exceptions to the rule, such as an act of God, the plaintiff’s default, the plaintiff’s consent, an independent act of a third party, and statutory authority, greatly diminished the strict liability principle developed in England more than a century ago in Rylands v. Fletcher (1868). The Supreme Court ruled that cases involving the determination of liability in hazardous and inherently dangerous industries in India did not fall under the exceptions to the strict liability principle. Since then, beginning with the Rural Litigation Kendra case (1985), the Court has introduced concepts like “sustainable development,” “polluter pay,” and the public trust doctrine principle. It has also adopted some other concepts from international treaties like the Stockholm Declaration, Rio Declaration, Kyoto Protocol, Biodiversity Convention, various United Nations Environmental Programs, and so forth. In a progressive development of environmental jurisprudence, the Supreme Court elevated the right to a clean and healthy environment to the status of a fundamental human right under Article 21 of the constitution. India’s environmental governance has benefited from the application of such a constitutional shield to environmental concerns through active judicial activism. The Supreme Court has changed the definition of life from mere animal existence to a meaningful existence through a number of judicial decisions. Women empowerment The role of judicial activism extends beyond the aforementioned forms. Another area where this has been seen is in women’s empowerment. The judiciary has made significant progress in preventing workplace exploitation of women and improving conditions for women. This was also made clear in the case of Air India v. Nargesh Meerza (1981), where the Supreme Court ruled that the rule requiring an air hostess to leave the workforce following her first pregnancy was invalid, unconstitutional, and in violation of Article 14 of the Indian Constitution. In Mohd. Ahmed Khan v. Shah Bano Begum and Others, the Supreme Court overruled Muslim Law and extended the period of Iddat from four months and ten days to provide justice to Shah Bano Begum. In Vishakha v. State of Rajasthan (1997), the Supreme Court issued guidelines for the prevention of sexual harassment cases under Article 32 read with Articles 141 and 142. These regulations from 1997 have been replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013. In the Railway Board v. Chandrima Das (2000) case, employees of the Indian Railway gang-raped a Bangladeshi national in a room at Howrah’s Yatriniwas station. The government argued that it was immune from liability under tort law because the ‘Yatriniwas’ were not committed while it was performing its official duties. The Hon’ble Court, on the other hand, rejected this claim, stating that the Union of Indians employees, who are in charge of managing the establishment, including Yatrinivas and the railway station, are important components of the machinery of government that carries out commercial activity. If any of these employees violate the law, the union government where they work can be held vicariously liable for compensating the victim of their actions, provided that other legal requirements are met. The Supreme Court granted the victim a compensation award of Rs. 10 lakh. The scope of the right is very broad because it extends to non- citizens as well. In the Laxmi v. Union of India (2015) case, in 2006, Laxmi, a victim of an acid attack, filed a petition calling for laws to control the sale of acid and to compensate the victim. In 2013, the Supreme Court put strict restrictions on the sale of acid due to the rise in cases involving acid attacks on women. The decision made it unlawful to sell acid. Dealers are only permitted to sell acid to customers who have valid identification and can justify the purchase. The dealer is required to notify the police of the sale within three days. Additionally, it prohibited the sale of acid to anyone under the age of 18. The Delhi High Court’s decision to commission women into the Army on a permanent basis was recently upheld by a Supreme Court Bench in Defense Secretary v. Babita Puniya and Others Judicial activism – Judicial activism is the term for the judiciary’s proactive role in defending the rights of citizens. Judicial philosophy drives judges to reject established precedents in favour of innovative and progressive social policies. Judicial restraint – Judicial restraint is the exact opposite of judicial activism. It is a theory of judicial interpretation that urges judges to restrain their power. As a procedural theory, the idea of restraint urges courts to hold off on making decisions on legal matters, especially constitutional ones, unless the decision is necessary to settle a particular dispute between opposing parties. It encourages courts debating constitutional matters to accord the elected branches considerable credibility and to only reject their acts when they violate the constitution. Judicial overreach – Judicial overreach is the term used when judicial activism turns into judicial adventurism. This type of activism involves frequent, arbitrary, and unjustified intrusions by the judiciary into legislative affairs. By doing this, the judiciary goes beyond its authority, risks interfering with the legislative or executive branches of government, and goes against the spirit of the separation of powers. Difference between judicial activism and judicial restraint – Using the Constitution to promote existing values and conditions is known as judicial activism. Contrastingly, judicial restraint restricts the power of the judge to strike down a law. Judicial activism and judicial restraint have different objectives. Judicial restraint aids in the preservation of the balance of power among the three branches of government: the judiciary, the executive, and the legislative. In this case, the judges and the court advocated reviewing an existing law rather than changing it. Judicial activism contributes significantly to the creation of social policies on issues like the protection of individual rights, civil rights, public morality, and political injustice. Judicial activism considers changing aspects of society, whereas judicial restraint is not required to consider wider issues. Difference between judicial activism and judicial overreach – There is very little difference between judicial activism and overreach. Simply put, judicial overreach happens when judicial activism goes too far and turns into judicial adventurism. The court runs the risk of interfering with the operations of the legislative and executive branches of government when it exceeds its authority. Although judicial activism is viewed favourably as a supplement to the executive’s failings, overreaching into the executive’s purview is seen as an intrusion into the democratic process. Individual perceptions influence whether an action is considered activist or excessive. The court, on the other hand, has always contended that they must intervene and issue orders due to legislative and executive overreach. However, when judicial activism goes too far and becomes judicial overreach, it poses significant challenges to the democratic system. Judicial overreach occurs when the judiciary excessively interferes with the legislative and executive branches. It can lead to a breach of the principle of separation of powers, a lack of harmony between the branches, and a decrease in public trust in democracy. For instance, Jolly LLB 2, Liquor case Conclusion – In conclusion, judicial activism, restraint, and overreach represent the multifaceted roles of the judiciary in a democracy. While judicial activism is necessary to protect rights, address failures in other branches, and promote justice, it must be tempered with judicial restraint to maintain the separation of powers and uphold democratic principles. Judicial overreach, although occasionally warranted, should be approached with caution to avoid undermining the democratic process. Striking the right balance ensures that the judiciary remains a cornerstone of democracy, upholding the rule of law while respecting the roles of other branches of government. Judicial Review vs Judicial Activism vs Judicial Overreach Judicial Review: Judicial review is the power of a court, typically a constitutional court, to review the actions, laws, and policies of the legislative and executive branches of government to ensure they conform with the Constitution. The primary purpose of judicial review is to uphold the rule of law and protect the Constitution. It allows courts to strike down laws or government actions that are unconstitutional, ensuring that government actions remain within the bounds of the Constitution. From where does the power of Judicial Review come: From the Constitution of India itself (Article 13). The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country. The provisions of Article 13 ensure the protection of fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void. Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India. Examples of Judicial Review: The striking down of Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution. Judicial Activism: Judicial activism occurs when a court, typically through its rulings , takes an active and assertive role in shaping social, economic, or political policies. Judges who engage in judicial activism often interpret the Constitution and laws broadly and flexibly to achieve what they consider just outcomes. Judicial activism is often driven by the belief that the judiciary should play a proactive role in addressing societal issues and injustices. Proponents argue that it can lead to progressive and more equitable outcomes. When we speak of Judicial Activism, we point fingers at the invented mechanisms that have no constitutional backing (e.g.: Suo moto (on its own) cases, Public Interest Litigation (PIL), new doctrines, etc.). Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America. Suo Motto cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party. Although the earlier instances of Judicial Activism were connected with enforcing Fundamental Rights, nowadays, the Judiciary has started interfering in governance issues as well. Examples of Judicial Activism: Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL, the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren, the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi etc Judicial Overreach: Judicial overreach occurs when a court goes beyond its constitutional mandate and interferes excessively in the domains of the legislative or executive branches. It often involves decisions that are seen as overly intrusive or beyond the scope of judicial authority. Judicial overreach is generally not a purposeful or deliberate action; instead, it is considered a misuse or abuse of judicial power. It may result from judges making decisions that are highly controversial or seen as exceeding their authority. The line between Judicial activism and Judicial Overreach is very narrow. In simple terms, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government. From where does the power of Judicial Overreach come from: Nowhere. This is undesirable in any democracy. Judicial Overreach destroys the spirit of separation of powers. Examples of Judicial Overreach: What makes any action activism or overreach is based upon the perspective of individuals. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court, etc. are considered as Judicial Overreach. Elements of judicial review – Both the Supreme Court and the high courts have the power to exercise this judicial review under Articles 32 and 226 respectively. While Article 32 provides that a person can approach the Supreme Court for any violation or infringement of his or her fundamental rights, Article 226 clearly states that a person can approach high courts on similar grounds. Judicial review can be done over laws formulated by both the state and the Centre. Types of judicial review – Judicial reviews are of three types, namely- (1) Legislative decision – Judicial review for legislative decisions means that whatever law is passed by the legislative organ of the government, the same must follow the provisions of the Constitution. It should not disrespect or disobey any provisions of the Constitution. (2) Administrative decision – Judicial review for administrative decisions means that the court has the power to review an action of legislature and executive. If their actions are found to be in violation of any of the provisions of the Constitution, then they will be declared as void. Therefore, their actions should follow the provisions of the Constitution. (3) Judicial decision – Judicial review of judicial decisions signifies higher courts overviewing the decision passed by the lower courts without intervening in their functionality. The same is required for the efficient functioning of the Indian judiciary. HISTORICAL VIEW – The most distinctive feature of the United States supreme court is its power of judicial review. As the guardians of the constitution the judiciary is that they can review the laws which may violate the constitution of the country. The power of judicial review was first introduced in the supreme court in the case of Marbury v. Madison (1803) in which the powers of the supreme court was established by limiting the power of the congressional by declaring the legislation unconstitutional. The Constitution of India is more tilted towards the U.S Constitution in the aspect of this prospect of judicial review than that of Britain. In Britain, no court can declare any law invalid passed by the British parliament whereas in India parliament is not supreme it cannot make and any laws executed there are always under the scope of judicial review. EVOLUTION OF JUDICIAL REVIEW IN INDIA Indian Constitution has, since its inception, conferred judicial review power on the Apex Court as well as the High Courts. The Apex Court has time and again asserted that courts have the power to review constitutional amendments, which is opposed to the practice in the United States. Apex Court noted in N.B. Khare v. State of Delhi that the issue to be decided was whether or not the limitations imposed by the impugned legislation on the exercise of the rights were reasonable or not and held that it had the right to evaluate the same. Till the present day, several constitutional amendments have been challenged on substantive grounds in India. The 1st Constitutional Amendment was contested in Shankari Prasad case. The Petitioner argued that even in the absence of an express bar, constitutional amendments cannot change the fundamental rights. The Hon'ble Supreme Court ruled that in the Constitution there was no such restriction. The Apex Court made it clear in Golak Nath case, that constitutional amendments can be reviewed as well as nullified for unconstitutionality. The Apex Court observed that a constitutional amendment is a law as per Article 13 and consequently, the Court has the power to exercise judicial review. Further, it was ruled that the Parliament does not have the authority to change Part III of the Constitution in any way that would limit or take away the fundamental rights guaranteed therein. The decision rendered in Sankari Prasad case was overturned by the Court for the reason that fundamental rights cannot be altered by amending the Constitution, but, interestingly, it did not strike down the 1st, 4th and 17th Constitutional Amendment despite observing that they abridged the scope of the fundamental rights. After the Golaknath case, the government vehemently reacted and passed the 24th Constitutional Amendment, which superseded the judgment rendered in the said case and extended the Parliament's amending power. In Kesavananda Bharati the aforementioned Amendment Act along with two others were challenged. The basic structure doctrine was propounded by the Apex Court in this case. As a result, there was an increase in the Court's capacity for judicial review. The Apex Court opined that one of the elements on which our Constitution's system of checks and balances is based is judicial review, which is expressly provided in Article 32 and Article 226 of the Indian Constitution. Thus, constitutional interpretation is a function of the judiciary. Since the Kesavananda Bharati case, it is an accepted principle that constitutional amendments are judicially reviewable on both substantive and procedural grounds. However, in 1976, the Parliament passed the 42nd Amendment for curtailing the power of the Apex Court to review constitutional amendments. In Minerva Mills the clauses of the 42nd Amendment was slashed because they were incoherent with the Constitution's basic structure. It was held that an essential tenet of our constitutional system is that every organ derives its power from the Constitution itself. As a result, it is imperative that it functions within the limits of such power. The Judiciary has the power of judicial review to determine the legality of any legislative or executive act as per Articles 32 and 226 of the Constitution. Cases on Judicial Review in India – The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honored by all courts of the land. There is no appeal against the judgement of the Supreme Court. 1. Shankari Prasad vs. Union of India – Here, the first Amendment Act of 1951 was challenged before the Supreme Court on the ground that the said Act abridged the right to property and that it could not be done as there was a restriction on the amendment of Fundamental Rights under Article 13 (2). The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever. In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368. 2. Sajjan Singh's case – Here, the competence of parliament to enact 17th amendment was challenged before the constitution. Bench comprising of five judges on the ground that it violated the Fundamental Rights under Article 31 (A). Supreme court reiterated its earlier stand taken in Shankari Prasad’s case and held, "when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368. Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2). 3. Golak Nath vs. The state of Punjab – The historic case of Golak Nath vs. The state of Punjab28was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed: (1) Article368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power., (5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article13 (2) of it takes away or abridges the rights conferred by part III of the constitution. (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined therein. 4. Keshavananda Bharti – The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of 8. Reversal of its own decisions by the Supreme Court: It is on record that on several occasions the Supreme Court reversed its earlier decisions. The judgment in the Golaknath case reversed the earlier judgments and the judgment in the Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactmentwas held valid, then invalid and then again valid. Such reversals reflect the element of subjectivity in the judgments. On all these grounds the critics strongly criticise the system of Judicial Reviewas it operates in India. Some important doctrines formulated by Courts through the judicial interpretation: Judicial review in India is based on various dimensions like judicial review of legislative, executive and judicial acts which are clearly provided some doctrines such as: (A) Doctrine of Severability: Under Article 13 of the constitution incorporates this doctrine. In Art. 13 the word “to the extent of contravention” are the basis of doctrine of severability. This doctrine enumerates that the court can separate the offending part unconstitutional of the impugned legislation from the rest of its legislation. Other parts of the legislation shall remain operative, if that is possible. This doctrine has been considerations of equality and prudence. It the valid and invalid parts are so inextricably mixed up that they cannot be separated the entire provision is to be void. This is known as “doctrine of severability”. (B) Doctrine of Waiver: The question of waiving of fundamental rights arose in Bashesher Nath v. I.T. Commissioner. In this case, the petitioner regarding Income Tax had been referred to the Income Tax Commissioner under Section 5(1) of the Income Tax Act, 1947 and it was found that he had concealed a large amount of his income. In order to escape from heavy punishment, he agreed as a settlement under section 5-A of the Act to pay Rs. 3 lack in in instalments by way of arrears of tax and penalty. In Kerala Education Bill, 1957,29 also the Supreme Court had held that a fundamental right cannot be lost or deemed to have been waived merely on the ground that such right cannot be exercised. (C) Doctrine of eclipse: An existing law inconsistent with a fundamental right, though becomes inoperative from the date of the commencement of the Constitution, is not dead altogether. “It is overshadowed by the fundamental right and remains dormant, but is not dead. It is a good law if a question arises for determination of rights and obligations incurred before the commencement of the Constitution, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. This has led the Supreme Court to apply to the existing laws. i.e. the Pre-Constitution laws, what may be described as the doctrine of eclipse. (D) Doctrine of prospective overruling: The basic meaning of prospective overruling is to construe an earlier decision in a way so as to suit the present-day needs, but in such a way that it does not create a binding effect upon the parties to the case or other parties bound by the precedent. The use of this doctrine overrules an earlier laid down precedent with effect limited to future cases and all the events that occurred before it are bound by the old precedent itself. In simpler terms it means that the court is laying down a new law for the future. This doctrine was propounded in India in the case of GolakNathv. State of Punjab,36 the court overruled the decisions laid down in Sajjan Singh37 and Shankari Prasad38 cases and propounded doctrine of prospective overruling. (E) Doctrine of colourable legislation: what cannot be done directly cannot be done indirectly.