Is Judiciary exploiting its powers?

Introduction

Lord Acton, Associate in Nursing English Catholic student, politician, and writer, once aforesaid that “Power tends to corrupt, and absolute power corrupts completely.”[1]

The Constitution of India is particularly highlighting the independence of the Judiciary. The Indian Constitution have provided with the system of “Check and Balances” to avoid the misuse of power by the Legislature and the Executives. Under Article 137 which provides that “Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power  to review any judgment pronounced or order made by it” , the Constitution of India also confers the power to The Supreme Court to review its judgments.

The power of judicial review has been held to be an integral and essential part of the Constitution. Judicial review is provided by the Indian Constitution underneath Article 226 for the judicature and Article thirty two for the Supreme Court. The Supreme Court has declared that review could be a very important component of the constitution of Republic of India. Consequently, the correct of the courts to hold out review isn’t subject to alter and has so, been fully excluded from the management of Parliament’s power to amend or to abbreviate in a way. The judiciary has declared a inactive reasonably command to the law-makers. However, for the event of a rustic, the law-makers, Judiciary and also the govt should all add harmony while not interference with one another.
In the recent years, the Indian judiciary has been criticized by several legal students, lawyers and judges themselves, for enjoying Associate in Nursing extremely activist role and vaulting.
Using the term, interpreting, that refers to the judgments, principally supported the Judge’s personal and affairs of state instead of the established law. In reference, we will point out the judgment given in VISHAKHA V. STATE OF RAJASTHAN could be a 1997, the Supreme Court arranged down the rules for the protection of girls at workplaces from molestation.

Judicial Overreach

But if, the courts’ intervention, goes further the duties and power assigned to them by the Constitution of India, is termed as Judicial Overreach. Judicial overreach refers to an extreme kind of judicial activism where arbitrary and unreasonable intervention has been made by judiciary in the domain of the legislature and the executive[2].

The real rationalization of ‘judicial overreach’ is that, since authority grows by what it feeds on, judicial authority typically seems to grow by consolidation; by the cognitive content or the sheer incompetence of legislative bodies came upon to enact laws and choose on vital matters of state, being unable to try to to therefore properly. The direct result of legislative and government negligence or inability is ‘judicial overreach.” Weak and imprudent results, not solely within the creating of laws, however additionally in their application.
Therefore, once the judiciary oversteps its mandate, they’re aforesaid to overreach. A couple of samples of overreach by the Indian judiciary are expressed.

Ban of firecrackers: The Vice-President of within the event of the eightieth All India Presiding Officers’ Conference in Gregorian calendar month 2020 termed the Supreme Court’s ban of firecrackers throughout Diwali as Judicial overreach.

NJAC Bill and the 99th Constitutional Amendment: The Supreme Court struck down the National Judicial Appointments Commission (NJAC) which was established through the 99th Constitutional Amendment on grounds that it was unconstitutional. This was to replace the old collegiums system[3].

Attorney General Mukul Rohatgi said: it’s a blemished judgment ignoring the unanimous can of the Parliament, 0.5 the state legislatures and also the can of the individuals 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.

Imposition of Patriotism in National Anthem Case: The Supreme Court on Dec 2016, passed its judgment within the case of Shyam Narayan Chouksey v. Union of Republic of India, that makes it necessary, that:
• All the cinema halls in Republic of India shall play the anthem before the movie starts.
• All gifts within the hall are duty-bound to face up to indicate regard to the anthem.
• The entry and exit doors shall stay closed before the anthem is compete or sung within the cinema hall so nobody will produce any reasonably disturbance.
• The doors are often opened when the anthem is compete or sung.
• The ensign ought to be displayed on the screen whereas the anthem is complete within the hall.

In this judgment, the court in the order has not referred to the landmark judgment in Bijoe Emmanuel case.

Conclusion

Many a times, judicial overreach is a matter of perception. In cases where courts rule in favor of a side, it appreciates the judicial rectitude of the court. The opposite side on the other hand criticizes the decision. The term overreach is used pejoratively, particularly by the Government. This but, isn’t invariably the case. The Indian Constitution has vested the courts with the power to strike down laws made by the legislature. The courts have the final say in every matter. 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 close to national and state highways was one such call. The court forced the govt. 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.

Reference

[1]] https://www.legalserviceindia.com/legal/article-6024-judicial-overreach-in-india.html

[2] https://www.worldwidejournals.com/global-journal-for-research-analysis-GJRA/recent_issues_pdf/2018/January/January_2018_1516451857__139.pdf

[3] https://byjus.com/free-ias-prep/judicial-overreach/

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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