Perils of Judicial Overreach and its Probable Solutions

The concept of judicial activism is the polar opposite of judicial overreach, but these two terms narrate the ideology and dictation behind judicial decision.

Violation of the Doctrine of Separation of Powers

The State’s powers should be entrusted among three branches (i.e. legislature, judiciary and executive) with a proper checks and balances mechanism in place.[1] The court solely depends on textual base of laws[2], even if text fails to provide sufficient relief and the court does not interfere with the functioning of the other organs.[3] Judicial activism creates the scope for judge-made laws and that is clearly abuse of the constitutional power. It is evidently illicit, when the judiciary takes steps for formatting laws with little or no perceptible origin in the words or design of the Constitution.[4] Eventually, the parliament is entrusted for making laws solely and the judiciary does not encroach the power of the legislator.[5] Moreover, the court may invalidate a legislation but not a constitutional amendment.[6] Most importantly, the judge’s decision is affected by several social and political factors[7] that renders it questionable.

Rule of Court

Dicey’s concept “La Principe de Legality” (i.e. rule of law)[8] has distinct features, such as supremacy of the law, equality before the law and individual constitution is the result of the ordinary law of the land. Here, the rule of court indicates the judge’s ruling that is over the law and is clearly a sharp blow over the separation of powers. Judicial activism is an active method for execution of the rule of law[9] and when the Court is swayed or when it overreaches itself, it should be considered as judicial populism.[10] It should be kept in mind that, “Judicial activism should neither be judicial ad hoc nor judicial tyranny.”[11] Judges do not create law but merely ascertain its true meaning and it should motivate turmoil, if they show propensity to make the laws.[12] It is deemed as naked penetration of the parliamentary function.[13] There must be reciprocal respect and adjustment among the branches of the State.[14] The apex court is not a benevolent authority beyond the arena of procedural irregularity[15] and it has no discretionary authority to disdain statutory instructions.[16]Indeed, it is the sacred obligation of the judiciary to abstain from overactive approach.[17]

Lack of Accountability

It is a general tendency that the person with great power performs his dominance so long as he obstructs certain boundaries.[18] The extended jurisdiction of the judiciary sparks flames in judicial minds that might be caused by abuse of power. Accountability and transparency are crucial for democratic regime, for that reason the judiciary also should be accountable and transparent. But unfortunately, the constitution fails to bind the judiciary as accountable even to the sovereign people[19] and gradually it damages the checks and balances mechanism. Hypothetically, judicial activism is ridden with questions of legality.

Probable Solutions of Controlling Judicial Overreach

Judicial activism is like a fresh wind of democratic system of the government. But it should be maintained with proper filtering mechanism, without this, it should cause a tumultuous situation. They should have proper guidance to control judicial overreach for ensuring effective balance of powers among the branches of the State.

Judicial Restraint

Judge functions to resolve the legal issue compliant with the original intention of law-maker and the judicial precedent and in this connection, judicial restraint (i.e. strict constructionist) is a concept that confines the judges within the constitutional power. Even though the constitution does not make the judiciary as superior over other organs, there should be balance among reforms, developments and implantation.[20] The judges had exercised judicial restraint keeping in mind the doctrine of separation of powers[21] and prevented themselves from issuing rules in compliance with the administrative instruction and for want of political inquiry.[22]

As the concept of judicial activism infers grandiose thought, it is extremely perplexing to draw a stria between appropriate judicial intervention and judicial overreach.[23] Only where justifiable causes of action, having judicially discoverable and manageable standards, are observed, the court should intervene on it.[24] Though it is seemed the judge’s aims and functions are quite the opposite[25], the judges cannot abrogate the powers of the executive or the legislature.[26] The Court functions under certain self-imposed limitations as a matter of prudence and policy[27] and hence, self-denial indicates not to do the act, which was condemned previously.

Applying the Cohn and Kremnitzer Model

By indicating three functions of the judiciary (i.e. dispute resolution, participation in the public sphere and upholding certain core values),[28] Cohn and Kremnitzer have suggested a methodology for the construction of a straight parameter between judicial activism and overreach. They provide seventeen factors in this regard, such as judicial stability, interpretation, majoritarianism and autonomy, judicial reasoning, threshold activism, judicial remit, rhetoric, obiter dicta, comparative sources, judicial voices, extent of decision, legal background, legislative reaction, administrative reaction, judicial reaction, public reaction and value-content.


Striking a balance between the State’s branches is the precondition for the maintenance of constitutionalism. Under the common law adversarial jurisprudence, the judges are deemed as non-aligned adjudicators and they serve for promoting values and dignity. The judiciary should be a sui generis organ with judicial dispute resolving and political law-making functions and should work for the fulfilment of the statutory dents for upholding public longing without overlapping the power of others. Factually, judicial activism has a very effective approach to almost every difficulty in the present time, but it is never a desirable dominion of the judiciary. Moreover, the exhaust of constitutional principles of the separation of powers is not welcome. Therefore, this double-edged sword should be used with caution and discernment tactics.

[1] Charles de Secondat, Baron de Montesquieu, The spirit of the laws (Cambridge University Press 1784)

[2] Jack M. Baermann, „An Inductive Understanding of Separation of Powers‟ (2011) 63 (3) Administrative Law Review 467

[3] Holly Martin, „Legislating Judicial Review: An Infringement on Separation of Powers‟ (2013) 17 (4) N. Y. U. Journal of Legislation & Public Policy 1097

[4] Bowers v Hardwick478 US 186 (1986)

[5] All India J A v Union of India [1992] 1 SCC 119

[6] Golak Nath v State of Punjab [1967] AIR 1643 (SC)

[7] Manoj Mate, „The Rise of Judicial Government in the Supreme Court of India‟ (2005) 33 (1) Boston University International Law Journal 169

[8] Albert Venn Dicey, Lectures Introductory to the Study of the Law of the Constitution (Macmillan and Company 1885)

[9] Abhinav Mishra, „Law and Liberty: A Tug of War‟ (2015) 1 (1) Indian Journal of Law & Liberty 1

[10] S. P. Sathe, Judicial Activism: The Indian Experience‟ (2001) 6 Washington University Journal of Law & Policy 29

[11] J.S.Verma, „The Indian Polity: Separation of powers‟ (2007) 35 Indian Advocate 32

[12] Hilaire B. Varnet, Constitutional and Administrative Law (4thedn, Cavendish Publisher Ltd 2002)

[13] Magor and St Mellons Rural District Council v Newport Corporation (1951) 2 All ER 839

[14] State of Rajasthan v Prakash Chand (1998) AIR 1344 (SC)

[15] H U D A v Roochira (1997) 1 UJSC 368

[16] Income Tax Officer v M. K. Mohammed Kunhi [1969] 1 SCR 65

[17] State of Kerala v A. Lakshmi Kutty (1986) 4 SCC 632

[18] Supra note (1)

[19] Divyanshu Bhandari, „Judicial Accountability and the Independence of The Indian Judiciary‟ (2014) 2 (7) International Journal of Liberal Arts and Social Science 144

[20] Vipin Kumar, The Role of Judicial Activism in the Implementation and Promotion of Constitutional Laws and Influence of Judicial Over Activism‟ (2014) 19 (2) IOSR Journal of Humanities and Social Science (IOSR-JHSS) 20.

[21] Anwar Ali Sarkar v State of West Bengal (1952) AIR 75 (SC)

[22] State of Rajasthan v Union of India (1994) AIR 1918 (SC)

[23] Pratap Bhanu Mehta, „Judicial Overreach: Its Overwhelming Evidence Cannot be Ignored‟ [2007] 35 Indian Advocate 79

[24] Baker v. Carr 369 US 186 (1962)

[25] Supra note (38).

[26] Indian Drugs & Pharmaceuticals Ltd v Workmen (2007) 1 SCC 408

[27] Additional Secretary to the Government of India and others v Smt. Alka Subhash Gadia and Another’s [1992] 1 SCC Supl. 496

[28] Madhav Khosla, „Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate‟ (2009) 32 Hastings International and Comparative Law Review 55

Tushar Ranjan from National University of Study and Research in Law, Ranchi

editor: vatsala sood

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