Judicial overreach: It’s the order of the day

  • Fali S Nariman
  • Updated: Aug 10, 2016 11:55 IST
Supreme Court of India, New Delhi. (HT Photo)

In England, excessive judicial interference with executive action is called ‘judicial activism’, a leading lawyer there once poked fun at the Judges. Adapting Lord Acton’s hackneyed dictum: “Power tends to corrupt, and absolute power corrupts absolutely” was for those who indulged in too much judicial activism.

In India, excessive judicial interference with laws and executive action is called ‘judicial overreach’, an expression used by Manmohan Singh, the former prime minister. In my experience, however, the expression is used pejoratively by governments — Central and state — and by other public bodies only when they lose their cases in courts. When they win (a more frequent occurrence), they ought to but do not praise the judges for their judicial rectitude.

The complaint is that a written Constitution (like ours) that confers power on courts to strike down laws made by Parliament and state legislatures is undemocratic; it is said that it enables unelected judges to thwart the will of the people expressed through their elected representatives. There is something to be said for this complaint, but in my view it is too late to ventilate it.

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For 66 years, we have been working (or trying our best to work) a Constitution — federal in nature — with subjects of legislation separately allocated to the states and to the Union. The Constitution also contains a chapter on Fundamental Rights (Part III): All laws and all executive action inconsistent with its provisions are declared (by the Constitution) to be “void”. There has to be a final arbiter who must decide this, and under the Constitution, the arbiter is the courts — high courts and the Supreme Court.

The real reason, for ‘judicial overreach’ is, that since all power grows by what it feeds on, judicial power also tends to grow by accretion; by the indifference or ineptitude of Constitutional bodies — set up to pass laws and to deliberate on vital affairs of the State — of not being able to effectively do so. ‘Judicial overreach’ then is the direct result of legislative as well as executive neglect or inaction: Poor and dilatory performance, not only in the making of laws, but also in their implementation.

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If judges need to introspect on the excessive use of ‘judicial review’ (and I agree that some of them do need to reflect) our lawmakers, in turn, also need to ask themselves whether they are fulfilling the aspirations of the people who have put them in the driving seats of governance.

In India’s constitutional history, the experience of judicial power has been vacillating — expanding at times, contracting at other times. During the Emergency (June 1975 to March 1977), it had contracted to almost a vanishing point, thanks or rather no thanks to the majority judgment in ADM Jabalpur (1976). But the role of Parliament has not been all that heroic either. After Article 31B and the Ninth Schedule were added to the Constitution (by the First Constitutional (Amendment) Act of 1951): All laws — whether Central or State — which Parliament chose to place in the Ninth Schedule, received absolute constitutional immunity; they were immune from all judicial reviews, even where such laws violated fundamental rights, and even when such laws had been already struck down by the courts. All such laws got automatically revived “notwithstanding any judgment decree or order of any court or tribunal”. This total denial of judicial review was tolerated (over the years) only because its sole purpose was to save from constitutional challenge the take-over by the State of large tracts of land held by zamindars (and the like); and the vast majority of laws inserted in the Ninth Schedule were land reform laws.

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But when it was held that on a textual interpretation of Article 31B, laws that were placed in the Ninth Schedule were not confined solely to land reform laws, Parliament and the government of the day did something which was contrary to the spirit of a liberal Constitution: The dreaded, internal security law MISA (1971) was placed in the Ninth Schedule, making its noxious provisions impervious to all judicial review. Parliament also enacted the Prevention of Publication of Objectionable Matter Act 1976, and also placed it in the Ninth Schedule: It was a law avowedly to control and muzzle the free press. It was only when the Janata government came to power in March 1977 (after the end of the Emergency), that the new Parliament (in a fortuitous moment of legislative wisdom) deleted MISA from the Ninth Schedule, and wholly repealed the ’Press Gagging Act’ (as that law came to be known).

In India, every law, every action of officers of State and of public bodies is within the reach of the courts’ ample jurisdiction under Articles 32 and 226 of the Constitution. There is therefore no judicial ‘overreach’. There are only instances of excessive, sometimes unwarranted, interference with laws and governmental action. But the fact is that judicial review of all laws, and all governmental action, has come to stay — having been authoritatively declared to be a basic feature of the Constitution — not amenable to the Amending Power in Article 368.

Fali S Nariman is eminent constitutional jurist. The views expressed are personal

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