Independent judiciary is the most essential attribute of the rule of law and is indispensable to sustain democracy. Though legislature has the power to make laws, this power is not absolute. Judicial Review is the process by which the Judiciary review the validity of laws passed by the legislature. Judicial review protects the independence of judiciary. Judicial review was first time pronounced by Justice Marshall in USA in famous MARBURY VS MADISON case (1804).
Constitution of India itself mentions it in Article 13 to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country.
In India Judicial review has three aspects – Judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action.
Examples of Judicial Review : 1. In PUCL Vs Union of India case SC observed that the primary duty of judiciary is to uphold the constitution and the laws without fear or favour, without being biased by political ideology or economic theory. 2. The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.
Limits of Judicial Review : Judicial review is permissible only to the extent of finding weather the process in reaching the decision (policy) has been observed correctly and weather it satisfy test of reasonableness. The courts are further required not to interfere in policy matters and political questions.
B. Judicial Activism
Judicial activism denotes a more active role taken by Judiciary to dispense social justice. When we speak of Judicial Activism, we point fingers to the invented mechanisms which have no constitutional backing (Eg: Suo moto cases, Public Interest Litigations (PIL), new doctrines etc).
Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America. Suo Motto cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party.
Although the earlier instances of Judicial Activism was connected with enforcing Fundamental Rights, nowadays, Judiciary has started interfering in the governance issues as well.
Examples of Judicial Activism :
1. Golaknath case : FRs are immutable and beyond power of amendment of the parliament
2. Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review,
3. Other Examples include, incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL, the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren, the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi etc.
Criticism: In the name of interpreting the provisions of the constitution and legislative enactments, the judiciary often rewrites them without explicitly stating so, in this process some of the personal opinions of the judges metamorphose into legal principles and constitutional values.
C. Judicial Overreach The line between Judicial activism and Judicial Overreach is very narrow. In simple terms, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach.
When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.
Origin : Nowhere.
This is undesirable in any democracy. Judicial Overreach destroys the spirit of separation of powers.
Examples of Judicial Overreach : Classical Example is Guinda Ram and others Vs Municipal Corporation of Delhi and others (2010) case in which Supreme Court directed the appropriate Government to enact law regulating the hawking in Delhi by June 2011. Also active monitoring of the investigation by CBI by Supreme court in 2G scam case.
Other examples include the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach.
Critical View : Judicial Overreach though undesirable, it also implies failure on the part of executive/ legislature to fulfil their constitutional role, so courts are left with no choice but to step beyond their traditional domain and make the executive discharge its constitutional role.
No comments:
Post a Comment