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JUDICIAL OVERREACH: A CONSTITUTIONAL NECESSITY OR JUST ENCROACHING UPON OTHERS JURISDICTION

OVERVIEW

Recently the guardian of our constitution in its 5-judge bench has passed a judgment which says that it has the power to grant a divorce in matters of irretrievable breakdown of marriages and the usual long cumbersome 6-month perquisites need not be necessarily followed.[1] This is not the first time that the Supreme Court has gone out of its way to produce such judgments. In fact to do ‘complete justice’ the SC has passed such judgments earlier like that in the case of Vishaka and Ors v The State Of Rajasthan[2] where it has laid down the guidelines to protect women from sexual harassment in workplaces and Union Carbide Corporation v Union of India, 1992[3] where the SC has invoked the concept of absolute liability to compensate all the victims. This power to do ‘complete justice’ has been given in Article 142[4] of our Holy Book of Law which gives the SC power to provide solutions when the existing state laws do not provide the remedy. Judicial activism allows the Supreme Court and High courts to protect the constitutional rights of the people and promote the spread of justice and equity in the country. The problem starts when the courts go overboard in ensuring these rights and passed judgments on matters where it does not have jurisdiction. Then the same Activism becomes judicial overreach and causes conflict with the functioning of the legislature, executive, and other domains.

CASES OF JUDICIAL OVERREACH IN INDIA

Instances and cases of Judicial overarch are not something new but keeps sparking controversies for many years and many scholars, ministers, and even retired judges have spoken openly about it in different forums. Here are some of the examples:-

In the 1993 Hazratbal siege the militants took control of the Hazratbal mosque and took some hostages. The government and other agencies decided to supply food, water, and electricity to the hostages which the army strongly opposed but in the case of State of Jammu and Kashmir vs Jammu and Kashmir High Court Bar Association[5], The Supreme Court allows the claim of the state and permitted supply of electricity, food (not exceeding 1200 calories) and water in small plastic bottles. This ultimately resulted in the militants misusing this resource. The court faced backlash with this judgment overstepping in the domain of the military.

The Interlinking of rivers was a brainchild of the Atal Bihari Vajpayee government in 2002 but when the government changed in 2004 then the new congress government do not take any interest in continuing it except by signing some memorandums. The Supreme Court taking cognizance of a civil petition passed a judgment 10 years later in 2012 directing the government to constitute a high-powered committee to plan the execution of the project. [6] The judgment sought to provide relief to the people living in drought-prone areas but the matter of fact is that the Supreme Court cannot direct a democratically elected government to carry on some developmental project like that and thus the judgment is heavily criticized.

One of the most controversial cases of judicial overreach which draws lots of criticism is striking down the NJAC bill and the 99th amendment in 2015 which attempt to do away with the collegiums system and bring a new system in place but the SC struck it with a majority of 4:5.[7]Apart from the criticisms from the ministers recently Former Supreme Court Judge Mr. Kurian Joseph also expresses his regret over his decision in The India Today Conclave platform[8].

In the case of Ajaykuma Shankarrao Waghmare v The Union of India and others[9], a 3 judge bench of The Bombay High Court passed the judgment directing the Central Board of Film Certification to rectify and delete some of the objectionable scenes and dialogues in the movie Jolly LLB 2 portraying judiciary in a bad light. This judgment of the judiciary is considered to be an attack on the creativity of the filmmakers and the independence of central authorities in the country sparking criticism regarding the same.

When it comes to the interpretation of religious texts and dealing with religious matters the courts of Law often faced the allegation of Judicial overreaching from time to time. One such example is the controversial judgment regarding the Sabarimala temple[10]. A 4:1 majority of the bench held that barring women of menstruating age (10 years to 50 years) from entering the temple premises does violate articles 14 and 15, 19(1), 21 and 25[11] of the constitution ignoring the year-old practice and rituals of the temple. In the case of Venkataramana Devaru and others vs. The State of Mysore, 1958[12] The SC indulges in the active interpretation of Hindu texts and passed the judgment that ‘Untouchability’ is not an essential practice according to the texts. While it is a noble judgment but many people criticize the court’s interpretation of religious texts in its way while passing such judgments.

FOREIGN CASES ON JUDICIAL OVERREACH

It is not like the issue of judicial overreach is something specific to developing countries like that of India whose courts of Law often have to cross the ‘Laxman Rekha’ to ensure justice and equity for its people. Even in Developed countries like the United States, the courts of law faces harsh criticism and backlash from scholars and executives for judicial overreach. Like for example, Professor Samuel Bray of Notre Law Dame School criticizes the judgment of the United States Supreme Court overturning the decision of the Biden administration waiving off student loan debt worth $430 billion in a majority of 6:3 judgment. He says “Courts would be overreaching, and it would shift a court from a judicial role where it decides a specific dispute to something more like a legislative role where it decides a question or an issue without a factual dispute between the parties”[13]. Another judgment of the US Supreme Court which attracts so much backlash from the people and different organizations is the judgment of Dobbs vs Jackson Women’s Health Organization which overturns the 5-decade-long judgment of Roe vs Wade which gives pregnant women the constitutional right to abortion[14]. This judgment is considered a gross injustice and .put the health of millions of girls and women who do not want pregnancy at risk according to ONCHRC experts. [15]

CONCLUSION

Overall if we see then the courts of law around the globe surely have overreached in their jurisdiction from time to time while passing their Ratio decidendi. It causes conflicts between the judiciary and various organs of democracy as our constitution supports the ‘doctrine of separation of power’ and every organ has its specified role and jurisdiction in this system. It instigates a feeling of resentment among the public when they see that their representatives and executives taking a back seat in decision-making. It is considered a loss of judicial time when the judiciary unnecessarily tries to poke its noses in other’s jurisdictions. All of these are surely the backdrops of judicial overreach but it is also true as said in the starting that the same judicial overreach has helped us to curb many social menaces and even save the basic structure of the constitution. As very aptly said by senior Advocate Arvind Datar while delivering a speech on the topic of ‘50 years of basic structure doctrine ‘Democracy has nowhere collapsed due to judiciary overprotecting human rights’.[16] In such cases, the very judicial overreach becomes a constitutional necessity for our democracy. What is needed today is that our Supreme Court and High courts maintain a balance between these 2 namely ‘Constitutional Necessity’ and ‘Judicial overreach’.

Author(s) Name: Shivam Tah (Nirma University, Ahmedabad)

Reference(s):

[1] Dhananjay Mahapatra, ‘Supreme Court rules it can grant a divorce under article 142’ (The Times of India, May 2 2023)

[2] Vishaka and others v State of Rajasthan and others (1997) SC 3011

[3] Union Carbide Corporation v Union Of India AIR 1988 SC 1531

[4] Constitution of India 1950, art 142

[5] State of J and K v High Court Bar Association (1994) Supp (3) SCC 7

[6] Ramaswamy R Iyer, ‘River Linking project: A Disquieting Judgment’ (2012) 47(14) Economic and Political Weekly <https://www.epw.in/journal/2012/14/perspectives/river-linking-project-disquieting-judgment.html> accessed 4 July 2023

[7] ET Bureau, ‘Supreme Court Strikes Down NJAC Act As Flawed Says Collegium System More Transparent’ (The Economic Times, 17 October 2015)

[8] Padmakshi Sharma, ‘Regret NJAC Decision,2018 Press Conference A Story Of ‘Lost Expectations’: Ex-Judge Justice Kurian Joseph’ (Live Law, 03 June 2023) <https://www.livelaw.in/top-stories/supreme-court-justice-kurian-joseph-njac-decision-press-conference> accessed 5 July 2023

[9] Ajay Kumar Shankarrao Waghmare v The Union Of India and others (2017)

[10] Indian Young Lawyers Association v The State Of Kerala WP (C) 373/2006

[11] Constitution of  India 1950, arts 14, 15, 19(1), 21, 25

[12] Pragya Nagpal, ‘Judicial overreach In India’ (Legal Service India) <https://www.legalserviceindia.com/legal/article-6024-judicial-overreach-in-india.html> accessed  5 July 2023

[13] Ariane De Vogue, ‘The Supreme Court’s student Loans Case is about more than student loans’ (CNN Politics, 31 January  2023)

[14] Adam Liptak, ‘In 6-3 Ruling, Supreme Court Ends Nearly 50 years of Abortion Rights’ (The New York Times, 24 June 2022)

[15] United Nations Human Rights, ‘Abortion Ban Put Millions of Women And Girls At Risk’ (02 June 2023)

[16] Anurag Tiwari, ‘Judiciary Has Nowhere Collapsed Due To Judiciary Overprotecting Human Rights’ (Live Law, 4 February 2023) <https://www.livelaw.in/top-stories/arvind-datar-basic-structure-doctrine-220761> accessed 5 July 2023