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Judicial Overreach in India

Power tends to corrupt, and absolute power corrupts absolutely- Lord Acton.
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.[1] 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[2].

Judicial Activism
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.[3]

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[4]: Where the guidelines for the protection of women at workplace from sexual harassment were laid down by the court.
Maneka Gandhi v. Union of India[5]: - 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 Constitution.
Olga Telis & Ors. v. Bombay Municipal Corporation[6]: - 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.

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.[7]

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 judges[8].

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.[9]

Justice Ruma Pal, in the Fifth V M Tarkunde Memorial Lecture An Independent Judiciary[10], 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.[11]

Justice S.S. Sodhi, in his book ‘The Other Side of Justice[12]’ 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[13]’ 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[14]. 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.[15]

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.[16]

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. [17]

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)[18] 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[19].

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[20], the court had stated that the state shall only make regulations in economic, commercial or religious practices.

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 reasonable.

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[21], 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 overreach.[22]

For instance, in Venkatarama Devaru v. State of Mysore[23], the 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.[24] 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[25], 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.).

In the case of Sastri Yagnapurushadji & Ors. V. Muldas Bhudardas Vaishya[26], the 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.[27] In Nikhil Soni v. Union of India[28], 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[29]. 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 orders.

Conclusion
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.[30] 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[31], 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.

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