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What is the difference between Judicial Activism and Judicial Overreach?

Arfa Javaid

You must have heard the terms 'Judicial Activism' and 'Judicial Overreach' often in the news but do you know what exactly they stand for and what is the difference between the two? If not, this article will provide you with the difference between the aforementioned terms along with examples. 

Judicial Activism

The concept of Judicial activism first originated in the United States in 1947 and was first witnessed in India when Allahabad High Court rejected the candidature of former Prime Minister Indira Gandhi in 1973. In Judicial activism, the judiciary plays an active role to dispense social justice. In simpler terms, judicial activism is when the judiciary upholds the rights of the citizens and preserve the constitutional and legal system of the country. 

Suo Motto cases and Public Interest Litigation (PIL) have allowed the Judiciary to intervene in many public issues even if there is no complaint from the concerned party. 

Examples of Judicial Activism

1- Golak Nath Case: The court held that the Fundamental Rights guaranteed by the Constitution of India cannot be abridged or diluted. However, the Parliament again brought in the 25th Amendment to the Indian Constitution and inserted Article 31C in Part III. 

Provisions of Article 31C

a. If a law is made to give effect to DPSPs in Article 39(b) and Article 39(c) and in the process, the law violates Article 14, Article 19 or Article 31, then the law should not be declared as unconstitutional and void merely on this ground.

b. Any such law which contains the declaration that it is to give effect to DPSPs in Article 39(b) and Article(c) shall not be questioned in a court of law.

2- Kesavanada Bharati Case: The court held that the Parliament can amend any part of the Constitution but cannot destroy its basic structure. The power of judicial review cannot be taken out by the Parliament. The court declared the second clause of Article 31C unconstitutional and void but held the first provision of Article 31C. However, the Parliament brought 42nd Amendment to the Indian Constitution and extended the scope of the first provision of Article 31C by including within its purview any law to implement any of the DPSPs specified in Part IV of the constitutional and not merely Article 39 (b) or (c). 

It is to be noted that in the Minerva Mills Case(1980), SC declared the extension of the first provision of Article 31C unconstitutional and void. At present, only Article 39 (b) and Article 39 (c) can be given precedence over Article 14 and Article 19 and not all the Directive Principles.

Judicial Overreach

When judicial activism crosses its limit, it is referred to as Judicial Overreach. In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. It is undesirable in a democracy and is against the principle of separation of powers. 

In its defence of judicial overreach, the judiciary has maintained that it stepped in only on the cases of executive and legislative underreach. 

Examples of Judicial Overreach

1- Striking down NJAC Bill and the 99th Constitutional Amendment: The Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Constitutional Amendment as unconstitutional and void. It further declared that the judiciary cannot risk being caught in a web of indebtedness towards the government as it sought to give politicians and civil society a final say in the appointment of judges to the highest courts. The court held that the collegium system would again become operative.

2- Jolly LLB 2 Movie: After the Jolly LLB 2 movie was certified by the CBFC, a petition was filed against the movie over the violation of Section 5B of the Cinematograph Act, 1952. A commission was appointed by the court that looked into the matter and ordered a total of 4 cuts in the movie and directed CBFC to recertify it. 

It is to be noted that the Cinematograph Act of 1952 doesn't give power to courts to certify or modify movies. Section 5B of the Act deals with the prevention of the certification of films that involve defamation or contempt of court.

Thus, Judicial Activism is the role played by the judiciary to uphold the legal and constitutional rights of the citizens while Judicial Overreach is when the judiciary crosses its own function and enter the executive and legislative functions.

Judicial Review and Judicial Activism

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