Judicial Review| Judicial Activism | Judicial Overreach | UPSC

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UPSC Current Affairs: Outreach & Overreach | Page – 6 The Hindu

UPSC Syllabus: Prelims: Polity & Governance | GS Paper II – Polity & Governance

Judicial Review

  • In general terms, judicial review refers to the power and ability of High Courts and Supreme Court to review laws or judgments to ensure that they do not violate constitutional or legal provisions.
  • Under Article 13– Courts can review government orders, legislations, bye-law, rule, regulation, notification or any law in force in Indian Territory.
  • Article 32allows a person to move to SC in case of violation of fundamental rights. Similarly, Article 226 empowers persons to move to High Courts in case of violation of any fundamental or other rights. Thus, SC & HC can issue writs as constitutional remedies against the wrong doer.
  • Article 137empowers SC to review judgments or orders made by the Supreme Court itself. The review will be done by a larger bench of SC.
  • Article 142allows Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
  • Primarily Article 13, 32 and 226forms the core of judicial review, of which Article 13 and 32 forms part of Fundamental Right.
  • Further judicial reviewhas also been considered as part of basic structure of the Indian Constitution and hence cannot be amended.
  • Thus, the Courts are empowered to declare a statute ultra vires the constitution and to nullify an executive action as unconstitutional if they violate constitutional provisions or alters fundamental right.
  • These powers of judicial review are given not to make the judiciary superior, but to ensure a system of checks and balances between the legislature and the executive on one hand, and the judiciary on the other.

Judicial Review Resulting in Judicial Activism

  • However, at times Supreme Court or High Court for doing complete justice, over extends its jurisdiction into the arena or legislature and executive.
  • It is often seen that in the name of giving judgments, SC or HC end up directing the centre or state for certain commissions or omissions. This results in instances of judicial activism.
  • Judicial activismis an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and invalidate legislative or executive actions.
  • The judges use their powers to correct injustices and play an active role in shaping social policy on various issues as civil rights, protection of individual rights, environmental protection, protection of weaker sections etc.
  • Judicial Activism mainly occurs due to the non-activity of the other organs of the government.
  • The phrase judicial activismappears to have been coined by the American historian Arthur M. Schlesinger, Jr. in a 1947 article in Fortune.

Judicial Overreach

  • Judicial overreach” occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate.
  • It means the Court has violated the doctrine of separation of powersby taking on the functions such as law enforcement, policy making or framing of laws or interfering in day to day activities of the executive.
  • This is a situation where the court goes beyond its jurisdiction as stated in the constitution and other legal documents.
  • The courts also encroach upon the role of the executive by taking executive decisions.
  • Some examples of Judicial Overreach can be:

ü Judiciary can introduce policies which are the domain of the legislature.

ü Judiciary can lay down regulations which are the domain of the executive.

ü Court decisions can impose a fiscal burden on the state, in the form of expenditure incurred or revenue foregone, which is the domain of both the executive and the legislature.

ü Amending constitutional provisions.

ü Introducing new meanings to the constitutional or legal provisions which did not exist earlier.

ü Suggesting to add provisions in any legal statute.

Flourish of PIL

  • The chief instrument through which judicial activism/Overreach has flourished in India is Public Interest Litigation (PIL).
  • Earlier, an individual could approach the courts only if he has been personally aggrieved. This concept underwent a change in February 1979.
  • Hussainara Khatoon v State of Bihar (1979) – This can be considered as the first case on Public Interest Litigation in India. Senior Advocate Pushpa Kapila Hingorani wrote a letter to Supreme Court stating the conditions of under trial prisoners languishing in jails of Bihar. In the letter she asked the honourable Court to intervene and initiate proceedings. The letter was accepted by Honourable Justice P.N. Bhagwati and in the process around 40,000 under trial prisoners were released from jails across the country. This case started the revolution of Public Interest Litigation or PIL as we know today.

Important Case Studies – Instances of Judicial Activism/ Overreach 

  • Evolution of Basic Structure of Indian Constitution: In Kesavananda Bharati case (1973), the Supreme Court evolved the concept of “basic structure.” It ruled that the Parliament has wide powers to amend the constitution, but this power could not be used in an unlimited way to abridge, abrogate or destroy the “basic structure” of the constitution. Hence, certain parts of the constitution considered as basic structure cannot be amended at all. Further, Supreme Court is at liberty to include more provisions or concepts as Basic Structure in near future
  • Introduction of Due process of Law: In Maneka Gandhi v /s Union of India case, the SC introduced the concept of “Due Process of Law” in place of “Procedure established by Law”. Under the “Due Process of Law”, procedure which is established by the law must be just, fair and reasonable. Further, the court held that the ‘Right to life’ as embodied in Article 21 is not merely conned to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.
  • Imposition of Patriotism: In Shyam Narayan Chouksey v. Union of India, the Supreme Court made it mandatory for all the cinema halls to play National Anthem before the start of movie. This direction of the SC goes beyond the Prevention of Insults to National Honour Act, 1971. The act provides that no film, drama or show of any sort can have the National Anthem as part of the show.
  • Ban on Liquor: On the basis of PIL, the SC banned the sale of liquor at retail outlets, hotels, and bars that are within 500m of any national or state highway. It was an administrative matter where the decision should rest with Executive. The court was not the appropriate authority for such decisions.
  • Cancellation of 2G Licenses: The Supreme Court ordered to cancel 122 telecom licenses and spectrum allocated to eight companies. The Supreme Court held that the process of allocation was flawed. It further directed the government to allocate national resources through auction only. The economic decisions of a country are the sole domain of the legislative and executive bodies. This is a clear case of Judicial overreach wherein the SC took decision without taking into account the adverse impact of its decision.
  • Prevention of Sexual Offences against Women at workplace: In the case of Vishakha v/s State of Rajasthan, the court laid down guidelines for protection of women from sexual harassment at workplace.
  • Collegium System of Appointment: The Collegium System is one where the CJI and a forum of four senior-most judges of the Supreme Court recommend appointment and transfer of judges of higher judiciary. The collegium system evolved through three different judgments which are collectively known as the Three Judges Cases.

Advantages of Judicial Activism:

  • Addresses inaction on part of Legislature and Executive.
  • Makes the judiciary vibrant and pro-people.
  • Helps in the protection of the spirit of the constitution by giving a wider definition to various articles of the constitution such as: Article 14, article 19, article 21 and article 32 etc.
  • Promotes transparency and accountability in Governance.
  • Prevents arbitrary state action and curbing citizen’s fundamental rights by state.
  • Ensures checks and balances on the Executive (Eg: 2G Allocation, Coal Scam etc.)

Problems with Judicial Overreach

  • It destroys the spirit of the constitution as the democracy stands on the separation of powers between the organs.
  • It creates a conflict between the legislative and the judicial system.
  • It diminish trust of the people in public institutions which can be dangerous for democracy.
  • Results in tyranny of unelected as Judges assumes central role in day to day decision making.
  • Entertaining all PILs results in over burdening the Judiciary, which can otherwise be utilized for clearing the pending cases before courts.

Way Forward

  • In the recent times, the judiciary has been seen as overreaching and intruding in the space of the legislature and the executive.
  • This can create unhealthy asymmetry in the delicate balance among institutions in the country as envisaged in the Constitution.
  • Judiciary, for all purposes must act the guardian and interpreter of the Constitution and must observe judicial restraint wherever necessary, especially to avoid face off either with the legislature or the executive.

 

UPSC Current Affairs: Back in the shortage economy | Page – 7

UPSC Syllabus: Prelims: Economy Mains – GS Paper III – Economy

Sub Theme:  Learning from Green Revolution | Advantages for India | UPSC

 

UPSC Current Affairs: Green panel allows Great Nicobar plan to advance | Page 9

UPSC Syllabus: Prelims: Environment Mains – GS Paper III – Environment

Sub Theme:  The Environment Appraisal Committee (EAC) | concerns about NITI Aayog’s ambitious project for Great Nicobar Island | UPSC

The Environment Appraisal Committee (EAC) – Infrastructure I of the Ministry of Environment, Forest and Climate Change (MoEFCC) has flagged serious concerns about NITI Aayog’s ambitious project for Great Nicobar Island (‘NITI Aayog vision for Great Nicobar ignores tribal, ecological concerns’, The Hindu, March 21, 2021). The committee has, however, removed the first hurdle faced by the project. It has “recommended” it “for grant of terms of reference (TOR)” for Environmental Impact Assessment (EIA) studies, which in the first instance will include baseline studies over three months. The committee’s concerns were both procedural and substantive.

Concerns expressed by EAC

  • The EAC was responding to the 126 page ‘pre-feasibility’ report, ‘Holistic Development of Great Nicobar Island at Andaman and Nicobar Islands’, prepared for the NITI Aayog by the Gurugram-based consulting agency Aecom India Private Limited. The proposal includes an international container transhipment terminal, a greenfield international airport, a power plant and a township complex spread over 166 sq. km. (mainly pristine coastal systems and tropical forests), and is estimated to cost Rs. 75,000 crore.
  • The committee also noted that there were no details of the trees to be felled — a number that could run into millions since 130 sq. km. of the project area has some of the finest tropical forests in India. The committee also noted that there were no details of the trees to be felled — a number that could run into millions since 130 sq. km. of the project area has some of the finest tropical forests in India.
  • Committee raised a number of additional issues, including about Galathea Bay, the site of the port and the centrepiece of the NITI Aayog proposal. Galathea Bay is an iconic nesting site in India of the enigmatic Giant Leatherback, the world’s largest marine turtle — borne out by surveys done over three decades by the island’s Forest Department and research agencies like the Andaman and Nicobar Environment Team, Dakshin Foundation and the Indian Institute of Science (IISc) (‘Leatherback nesting sites could be overrun by Andamans projects’.
  • The committee noted that the site selection for the port had been done mainly on technical and financial criteria, ignoring the environmental aspects. It has now asked for “an independent study/ evaluation for the suitability of the proposed port site with specific focus on Leatherback Turtle, Nicobar Magapod (sic) and Dugong”.
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