Power tends to corrupt, and absolute power corrupts absolutely
The Constitution of India lays emphasis on independence of the Judiciary. The
courts in the country have been assigned special powers to keep a check on the
constitutional validity of the laws created for the people. The constitution is
a transformative document and the judiciary has been given the power and
responsibility to interpret its provisions.
In the recent years, the Indian judiciary has been criticized by many legal
scholars, lawyers and judges themselves, for playing an exceedingly activist
role and overreaching. This paper aims at analyzing the role of Indian judiciary
and its current state. The paper initially explains the courts’ power of
judicial review and the concept of judicial activism.
It then continues to highlight how judiciary overreaches by stating certain
evidences. The behavior of the Indian courts in the modern times has been
analyzed with the support of legal literature and case laws.
The Power of Judicial Review
Judicial review is provided by the Indian Constitution under Article 226 for the
High Court and Article 32 for the Supreme Court. The Supreme Court has
asserted that judicial review is a vital element of the constitution of India.
Consequently, the right of the courts to carry out judicial review is not
subject to change and has therefore, been completely excluded from the control
of Parliament's power to amend or to abbreviate in some way. The judiciary has
asserted a hands-off kind of command to the legislature. However, for the
development of a country, the Legislature, Judiciary and the Executive must all
work in harmony without interference with each other.
Judicial activism applies to the decisions of the court depending on the
political and personal reasoning and pragmatism of the judges in charge of the
matter. It is a term often used to refer to court decisions that are based, in
whole or in part, on the Judge's personal or political aspects rather than on
present or established laws.
Judicial activism emerged from the judicial review system that during the Stuart
period (1603-1688) could be followed from the uncodified constitution of
Britain. The capacity of Judicial Review was initially discovered in Britain by
Justice Coke's advocacy around the year 1610.
In India Judicial activism means the power, not of the subordinate courts, but
only of the Supreme Court and the high courts to declare laws unlawful and
invalid if they infringe the human rights or if the law is contradictory with
one or several of the clauses in the constitution.
The system was designed to operate in such a way that the unlawful behaviour of
one of the wings, and vice versa, is reversed by the other. Judicial activism is
simply an intermediate component of judicial review and the objective of
judicial review should not be to challenge legislative or executive decisions,
as it is assumed that the opposition will perform this role in a functional
democracy. Whereas, the judicial system's objective is to evaluate executive and
legislative actions and to confirm whether they comply with the provisions of
the Indian Constitution.
Some of judicial activism and judicial creativity in India are:
- Vishakha v. State of Rajasthan: Where the guidelines for the
protection of women at workplace from sexual harassment were laid down by
- Maneka Gandhi v. Union of India: - In this case, the court tried to
interpret the term 'procedure established by law', by placing it as 'due
process of law'. The provision established by the law must be just, fair,
and reasonable for both the parties as provided under Article 21 of the
- Olga Telis & Ors. v. Bombay Municipal Corporation: - In this case,
the court convened that the essence of Article 21, which gives right to life
does also consist of the Right to work and accommodation
Hence, intervention of the courts, if goes beyond the power assigned to them
by the Indian Constitution, is termed as judicial overreach.
Excessive interference of the judiciary with the legislature and the executive
is known as Judicial Overreach
Pertaining to the judicial activism in India, It is said that it allows
un-elected judges to thwart the will of the people expressed through their
elected representatives; a written Constitution like that of ours, which gives
courts the power to strike down laws made by Parliament and state legislatures,
this is undemocratic and against the rules laid down by our forefathers. When
judges start to infringe from the separation of power in lieu of judicial
activism, then it is considered overreach.
The real explanation of 'judicial overreach' is that, since authority grows by
what it feeds on, judicial authority often appears to grow by consolidation; by
the ignorance or the sheer incompetence of legislative bodies set up to enact
laws and decide on important matters of state, being unable to do so properly.
The direct effect of legislative and executive negligence or inability is
'judicial overreach" .Weak and injudicious results, not only in the making of
laws, but also in their application.
Therefore, when the judiciary oversteps its mandate, they are said to overreach.
A few examples of overreach by the Indian judiciary have been stated in the next
segment of the paper.
NJAC bill and the 99th Constitutional Amendment
Appointment and transfer of judges of High Courts and the Supreme Court of India
is made as per the existing collegium system. In accordance with Articles 124,
217 and 222 of the Constitution of India, the President, in consultation with
the Chief Justice of India and other senior judges, makes appointment of
This Collegium System was created in India in 1993 as the court decided the case
of the Supreme Court Advocate Association- On Record- Association v. Union of
India. Since then, this procedure of judicial appointment and transfer as been
constantly criticized by senior judges, lawyers as well as legal scholars.
Despite the severe criticism, the collegium system continues to prevail and
judicial overreach has been considered a reason for the same.
Justice Ruma Pal, in the Fifth V M Tarkunde Memorial Lecture An Independent
, spoke about ‘seven sins’ that are being committed by higher
judiciary in India. She listed appointment of judges as one of them. Since
judges are themselves responsible for appointing other judges, the process, as
Pal says, does not remain transparent. She points out how the process of
appointment of a judge or elevating one to the Supreme Court is ‘one of the best
kept secrets’ that remains unknown to the world.
Justice S.S. Sodhi, in his book ‘The Other Side of Justice’ writes about how
the collegium system has unfortunately turned into a means of networking,
channelizing and promoting certain candidates. Similarly, Justice U.L. Bhat, in
his book- ‘Story of a Chief Justice’ mentions how the existing system
promotes nepotism and networking amidst the judicial appointments, escalations
and transfers. Justice V.R. Krishnan Iyer has openly spoken about the lack of
transparency and prevailing secrecy in the process quite often.
The Parliament had made a remedial attempt to put an end to the opaqueness in
the system by passing the Ninety-ninth Constitutional Amendment Act of 2014. The
Act aimed at abolishing the existing collegiums system and establishing a
National Judicial Appointments Commission to bring an end to inbreeding and
bringing in transparency.
The proposed commission, as per the Act consisted of six members. These
included the Chief Justice of India, two other senior judges next to the Chief
Justice, The Union Minister of Law and Justice and two other eminent persons.
These two eminent persons would further be appointed by a committee consisting
of the Chief Justice, the Prime Minister of India and the leader of opposition
in the Lok Sabha. One of these two eminent persons would have been either from
minority communities (including Scheduled Castes, Scheduled Tribes and OBCs) or
women. The Act aimed at appointment and transfer on the basis of ability and
merit rather than just seniority or network.
A five-judge Constitutional bench presided over by Justice J.S. Khehar declared
the Act unconstitutional and rejected the NJAC. The court said that setting up
the NJAC would be a clear interference with the power of the judiciary and
giving unnecessary authority to politicians. Senior Lawyer Harish Salve
criticized the judgment. He said, Supreme Court is giving a message that the
power is with them.
Attorney General Mukul Rohatgi said:
It is a flawed judgment ignoring the unanimous will of the Parliament, half the
state legislatures and the will of the people for transparency in judicial
appointments. Many other prominent persons including senior Advocate KTS Tulsi
criticized the judgment and expressed disappointed on the same. The Supreme
Court made use of the final power bestowed on them by the Constitution of India
to scrap off the Act that had the consensus of both the houses and more than
twenty state legislatures.
This decision of the court is considered a case of judicial overreach because
the collegium system is of no benefit to the nation and is considered a failed
attempt by several senior judges and lawyers. No other prominent power in the
world practices such a system of judicial appointment or transfer. Even in the
most liberal democracies across the world, judges do have such unbridled power
as is given to the judges in India.
For instance, in the United States, appointment of the judges is made by the
President and confirmed by the Senate Judiciary Committee. The Senate holds
hearings and draws votes about the nominations. Similarly in England, the
committee comprises the Supreme Court President, their deputy, one member
appointed by each of the JACs of Scotland, England and Northern Ireland.
Law Minister D.V. Sadananda Gowda expressed his disappointment on the judgment
as according to him, the Act had 100% support of the people of India. The
Constitution of India has provided for the separation of power among the
Legislature, Executive and Judiciary. Each of the wings should remain in its
remit. NJAC composed of both, judges and non judges. Establishment of NJAC would
have ensured that the power did not entirely lie within the hands of judiciary
or the legislature. The representatives appointed by the citizens of India
themselves must be trusted and should be in power with the judges while making
judicial appointments. 
Religious Freedom and Social Reform
Article 25 of the Constitution of India mentions about the ‘freedom of
conscience and free profession, practice and propagation of religion’ while
25(2) (b) stands as an exception to the general rule. Article 25(2)(b)
states as follows:
Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law- providing for social welfare and reform
or the throwing open of Hindu religious institutions of a public character to
all classes and sections of Hindus.
The above two provisions have often seen contradicting each other with people
insisting on freedom of their religion while courts go on making decisions as
social reform legislations. It is the duty of the judges to create a balance
between individual religious freedom and social justice. State interference to a
certain extent is a necessity in a country like India. But sometimes courts tend
to go beyond what is required and practice overreach.
One such instance is the laying down of the ERP Test by the Supreme Court. ERP
stands for Essentially Religious Practices. The court initially stated that the
religious practices that were ‘essentially religious’ fell under the ambit of
Article 25 and were protected from state intervention. Only religious
denominations themselves had the right to make an absolute decision regarding
which rights were essential. The state could interfere only when such practices
stood against public order, social welfare or violated any of the fundamental
provisions of the constitution. In Ratilal v. State of Bombay
, the court had
stated that the state shall only make regulations in economic, commercial or
Presently, according to the ERP test, certain religious practices that are
‘essential to religion’ and have a fundamental relevance are the only once
protected by the Constitution. Practices that are completely fundamental,
changing which would alter the very character of the religion, now fall under
the ambit of Article 25. Although the Constitution does not mention any such pre
requisite, the courts have interpreted the law in a manner that does not stand
Courts have assumed and assigned themselves the power to decide
which practices are essential to the religion. They have further expanded their
self assigned power by conducting interpretation of religious texts and laying
down additional tests for determination of religious essentiality. By taking
such unreasonable actions, courts undermine religious freedom in general and
secularism on the whole.
In Ram Prasad Seth v. State of Uttar Pradesh
, the two terms ‘essential to
religion’ and ‘essentially religious’ were put to use by the Allahabad High
Court in a manner that left religion open to the scrutiny and interpretation of
the courts. Subsequent cases since, have been examples of judicial
For instance, in Venkatarama Devaru v. State of Mysore
SC indulged in an active interpretation of the Hindu texts and declared that untouchability did not constitute an important part of Hinduism. Even though the
cause for which the court made the decision was a valid one, the approach that
was used is still criticized. Scholars and senior lawyers suggest that the
courts could have simply declared the concept of untouchability unconstitutional
as it violated the provisions of Articles 14 and 17. Rather, the court went on
interpreting the religious text itself.
The courts have been assigned the responsibility of reading and interpreting the
law and not the religion. An example of this is the case of Adhitayan v.
Travancore Devasam Board
. The court declared that the appointment of temple
priests of only Brahmin origin was in violation of Article 17 of the
Constitution of India. This case is a sensible example of how the court
interpreted a practice in accordance with the provisions of law, without trying
to deduce the religious texts.
Similarly, in the Shah Bano case, adjudication of the courts could have been
based on the sections of Criminal Procedure Code. The court instead went on to
interpret the Quran and conducted an analysis of verse 241 of the religious
text. This case was decided by Justice Chandrachud, who was a secular jurist and
not some trained Islamic scholar. He being trained in secular law, made an
interpretation of integral Islamic principles (Sanskriti Prakash n.d.).
case of Sastri Yagnapurushadji & Ors. V. Muldas Bhudardas Vaishya
petitioners were Satsangis. They claimed that they were not Hindus. They argued
that the laws and legislations of the temple were strictly for Hindus and hence,
did not apply to them. The court conducted their own interpretation of the Hindu
texts and declared all Satsangis as Hindus straight away. It also held that the
principles claimed by the petitioners were irrelevant as the teachings of their
founder Swami Narayan were false and superstitious.
Courts are not trained in theology and not equipped to tutor people about their
own religion. In Nikhil Soni v. Union of India
, the court banned
‘santhara’ by stating that it was not an integral part or an essential religious
practice. They stated that banning of santhara was valid under Article 25(2)(b).
The courts have been seen interfering in religious practices by imposing
unnecessary restrictions on festivals too. Several protests have been witnessed
through the years on the restrictions imposed on Dahi Handi, Ganesh Visarjan,
Moharram, cracker ban on Diwali, etc.
Censorship in case of the film- Jolly LLB II
In this case, the movie Jolly LLB-2 was named when a lawyer from Mumbai filled a
writ petition before the Bombay High court for some of the scenes in the movie’s
trailer. It was alleged that the scenes were harming the Solemnity and
Gravitas of the court as well as the profession of law. The petitioner also
wanted a written apology from the producers and directors of the film for
portraying the legal profession as a joke, which in essence was an act of
contempt and provocation.
The Bombay High Court, based on the evidence provided
by just the two trailers and posters of the movie, agreed with the contentions
of the petitioner. The court said that prima facie, the trailers and the
posters indicate disrespect towards the profession and disregard towards the
court. It went on to form a three person committee to watch the movie and report
on what issues exist in it.
The producers then appealed to the Supreme Court, but it provided no background
to the appeal and left everything in the hands of the Bombay High Court and the
three-man committee. This was in ignorance of a simple fact that a revisionary
board for movies already exists.
The committee after watching the movie reported that there were nearly 4-5
scenes in the whole movie that were not at par with the integrity of the
profession of law and of the court itself and were declared objectionable. In
lieu of this report, the directors had to delete the four objectionable scenes
from the movie because of the release date being near. The petition by the
producers of the film was then withdrawn and the film was released.
This was a case of unnecessary interference by the court. Section 5(b) of the
Cinematograph Act, 1952 states that the power to censor movies lies only with
the Board of Film Certification. The Act also grants a revisional power to the
Government but the courts of the country are not authorised to certify or modify
a film. The court went beyond the ambit of its power in this case.
This order by the court is considered violative of Article 19(2) of the
Constitution of India as it imposes a restriction on the freedom of speech and
expression. An order passed by a court does not pass as law under Part III of
the constitution and hence the court did not have the authority to pass such
Many a times, judicial overreach is a matter of perception. In cases where
courts rule in favour of a side, it appreciates the judicial rectitude of the
court. The opposite side on the other hand criticises the decision. The term
‘overreach’ is used pejoratively, particularly by the Government. This however,
is not always the case. The Indian Constitution has vested the courts with the
power to strike down laws made by the legislature. It is the final arbiter in
such matters. It is thereby expected to confine to power bestowed to it and
respect the independence of the three wings.
Apart from the examples cited above, there have been many other instances in
the country where judiciary has overreached. The imposition of liquor ban near
national and state highways was one such decision. The court forced the
government to implement Directive Principles of State Policy. It made use of the
extraordinary power granted to it under Article 142 of the Constitution which
was not fit to be used in such a situation. Similarly, the imposition of
patriotism in the National Anthem Case, the cancellation of telecom licenses
in the 2G case, the Lodha Committee report on the Board of Control for Cricket
in India (BCCI), etc. are all examples of judicial overreach in India.
Independence of judiciary is an essential condition for the progress of a
nation. The courts must however, make decisions by staying within the power
granted to them by the Constitution of India and fulfilled the responsibility
assigned to them.
- Sharma 2018
- Nariman 2016
- Bhandari 2017
- Vishaka & Ors vs State Of Rajasthan & Ors 13 August, 1997
- Maneka Gandhi vs Union Of India 1978
- Olga Tellis & Ors vs Bombay Municipal Corporation & ... 1985
- Shunmugasundaram 2007
- Singh 2020
- NJAC overturned in judicial overreach 2015
- Chibber 2011
- Jain 2011
- Sodhi 2007
- Bhat 2015
- Rajagopal 2015
- Shambhu Sharan 2017
- NJAC overturned in judicial overreach 2015
- Rajagopal 2015
- The Constitution of India, 1958
- Sanskriti Prakash n.d.
- Ratilal Panachand Gandhi v. The State Of Bombay And ... 1954
- Prasad Seth v. State of Uttar Pradesh 1957
- Sanskriti Prakash n.d.
- Venkatarama Devaru v. State of Mysore 1957
- N. Adithayan vs The Travancore Devaswom Board 2002
- Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985
- Sastri Yagnapurushadji & Ors. V. Muldas Bhudardas Vaishya 1966
- Sanskriti Prakash n.d.
- Nikhil Soni v. Union of India 2015
- Ajaykumar Shankarrao Waghmare vs The Union Of India And Others 2017
- The State Of Tamil Nadu Rep. By ... vs K. Balu & Anr 2016
- Shyam Narayan Chouksey vs Union Of India 2018
- Pragya Nagpal - O.P Jindal Global University
- Shashank Tomar - O.P Jindal Global University