Judicial Encroachment into Executive Domain – A Word of Caution on Judicial Overreach

Judicial Encroachment into Executive Domain – A Word of Caution on Judicial Overreach

Supreme Court

The Constitution of India has imbibed within its ambit the structure of governance and the realignment of diversified social forces, as a result in providing a fabricating democratic republic that has been structured on the constitutional values and principles of liberty, equality, fraternity, and justice for all the citizens. The concept of the doctrine of separation of powers has depicted the concept of independence of all the organs namely the executive, legislature, and judiciary which provided an accurate illustration of a democratic structure in the Constitution. The legislature has been empowered the making laws, but cannot make laws that act as ultra vires to the Constitution, secondly, the executive has the function of executing the laws but not if the laws are acting against the basic constitutional mandate and lastly the judiciary has the power to enforce those laws.

Hence, in some circumstances, the power of the judicial review is exercised in the form of various doctrines such as the doctrine of pith and substance, colorable legislation, and the doctrine of severability which ascertain the powers exercised by the legislature and executive. This can be interpreted in a way that if there is any flaw in the making of the laws by the legislature then it will simultaneously have an effect on the executive too. Now, if considered from a constitutional perspective the Judiciary has been considered the most pivotal institution and acts as a surveil for the well-functioning of the democracy. Hence, there arises a conflict when all these three primary institutions of the government exercise their mandatory accorded powers beyond their limited jurisdictions.

The present Indian democracy has been witnessing a major shift in the fundamental structure of the Constitution and also in the working of the doctrine of separation of powers. The Constitution of India has been surpassing the test of time, but the tussle among all these three organs has been slowly growing due to the various emerging issues in the developing country of India. The allegations leveled against the judiciary by other government organs have resulted in the judiciary’s independence being jeopardized by interfering in matters that do not fall within their respective domains. These criticisms highlight the fine line that the judiciary must walk in the context of judicial review in order to maintain a balance of independence and public accountability while promoting the principle of constitutionalism.

Separation of Powers – An Analysis

The doctrine of separation of powers occupies a position of profound ambiguity in the panoply of principles that govern constitutional government. One of the pillars on which constitutional democracy is built is the doctrine of separation of powers. All constitutional democracies rely on some form of separation between the three branches of government, which confers an independent reputation on these units for performing their respective functions independently without exercising dominating power over the other. In these democratic nations, the separation of powers is involved as an ideal and is a standard to which the ideal and the constitutional arrangements of a modern state conform. If interpreted analytically from the perspective of constitutional provisions, it has been perceived that the functions of the different organs of the government have been clearly differentiated with the certainty that none of the structural bodies overpower or assume the functions of the other body.

These three organs of the government have equal authority and are independent of one another. They are mandated to confer their constitutional powers and functions and are prevented from usurping powers from one another through the system of checks and balances. Although in India, the strict separation of powers is not followed but is followed as the principle of checks and balances.

Therefore, these three institutions cannot usurp the essential functions of the other machineries which constitute a part of the doctrine of basic structure with the mandate of not amending the constitution, and if any such amendment is made, then such a type of amendment would be considered unconstitutional by the courts. These are the institutions that are required for acting as a balancing mechanism between the conflicting pulls and pressures operating in society. The only rationale behind the doctrine is the polarity for avoiding absolutism of one government over the other. 

Analyzing the concept of Judicial Activism – Is it Judicial Overreach within limits?

Judicial Activism

The Black’s Law Dictionary has interpreted the term Judicial Activism as a judicial philosophy that motivates Judges to depart from the traditional precedents in favor of progressive and new social policies. Law is powerless and must be supported by empirical agency in order to exist. The fate of legal procedures is determined by the amount of implementation and the executor. The term ‘Judicial Activism‘ has recently gained a lot of traction. It has been stated by the protagonists of Judicial Activism that in any of the democratic countries, the idea of a welfare state has been substantially assisted by the process of law, and in that suffice, the law becomes a mighty weapon in the armory of democracy by which the socio-revolution is enhanced.

The term can be defined as the dynamic process of judicial outlook in the changing times and can be described as the act of judicial legislation i.e., the power of the courts and the judges for making a positive law. The term has been adapted from the English courts that have been based on the concepts of natural justice and equity. Judicial Activism mainly stems when the two other wings of the government fail. When democratic institutions become extinct or are moribund, then court activism comes into play as the only hope for the citizens. Judicial Activism is the use of judicial power for articulating and enforcing counter ideologies when the efficient effectively initiate significant re-codifications of power relations within the institutions of governance. Thus, Judicial Activism is all about providing good governance and ensuring the safety, security, and welfare of society. 

Judicial Activism under the scheme of the Indian Constitution

Women Judgeship

The establishment of the courts has mandated the provision for administering justice, and also for taking part in the law-making process whenever, the need for the same arises. The basic role of the Judiciary is to deliver justice on the matters in dispute or brought in front of it. The duly honoring justice lays down the foundation for the welfare and the progress of society. The judiciary has played a critical role in transforming itself from a traditional role of interpreting statutes to an enhanced role of delivering justice to the masses through the creative interpretation of existing laws and the creation of new laws as needed to meet the needs of society.

The preamble of the constitution has embodied within its scope the principle of justice on the basis of socialism and economic and political ends. Hence, the constitution has enhanced the role of the judiciary in implementing justice on all subjects to the citizens. The Supreme Court has been accorded various functional powers under Articles 131 to Articles 147 of the Constitution. Article 142 holds the utmost importance as it has given the plenary powers to the Supreme Court for providing ‘complete justice’ to the citizens. The section has acted as a sword of justice in the Constitution of India. The courts have been provided with the writ jurisdiction under Article 32 and Article 226 of the Constitution of India. 

The Indian Constitution has three organs of the government namely legislature, executive, and judiciary, and they have been accorded their own powers and functions. Article 141 of the Constitution has accorded the powers to the Supreme Court for making laws if it considers proper and appropriate and which resultantly would be considered as the law of land. It can be interpreted as an unmodified convention i.e.; it can be referred to as the recognition of the laws made by judges. Thus, in the words of the author, it can be stated that the law made by the judges for the welfare of the citizens is referred to as Judicial Activism.

The power has been vested in the high courts and the Supreme Courts but not in the subordinate courts for declaring the laws as unconstitutional and void, if that particular law acts in violation of the provisions of the constitution. Although the concept is difficult to understand, in a generic sense means the actions of an activated judiciary for protecting the fundamental rights of the citizens. Sometimes, there arise situations where the judiciary has to encroach upon the powers of the executive for giving execution to the laws in fulfilling the constitutional mandates. However, this encroachment of the judiciary in the executive has raised debates in the legal panorama, on the basis that the powers of the judiciary should be limited as its use has laid to the overpowering of the other wings of the government, which is termed as Judicial restraint or Judicial overreach. 

The instances where the courts have correctly exercised their power of judicial review are:

  • The Supreme Court in one of its cases ruled that all the states and the union territories must take steps for issuing orders in all public places to ban smoking as it was acting as an infringement to Article 21 i.e., the Right to life under the Constitution of India.
  • In one of the cases of Sunil Batra v. Delhi Administration, 1980, the court held that the writ of habeas corpus can also be issued in cases for providing protection to prisoners from any kind of inhuman, humiliating, and barbarous treatment. 
  • In the case of M.C.Mehta v. State of Tamil Nadu, 1991, the Supreme Court had ruled and issued orders for the welfare of the children stating that children cannot be employed in the match factories as it is a hazardous employment the within of Employment of Children Act, 1938 and was also acting as an infringement to Article 21 of the Constitution.
  • In the case of Central Bureau of Investigation v. Maninder Singh, 2015 the Supreme Court had observed and stated that the collective interest of which the court is the guardian cannot be a silent or mute spectator for allowing the legal proceedings to be withdrawn or yield to the ingenious dexterity of accused for invoking jurisdiction under Article 226 of the Constitution of India and simultaneously under Section 482 of the Criminal Procedure Code, 1983 and also for quashing the legal proceedings as these are against the basic legal proposition. 

Judicial Activism vis-a-vis Judicial Overreach

Judicial Activism

The role of the Judiciary has marked an immense significant shift from the traditional role to a more participatory one for keeping in pace with the changing needs of society. However, apart from the traditional role played by the courts of resolving disputes between the parties, there are also other indispensable functions performed by the courts within the constitutional schemes such as that of acting as the final interpreter of the constitution and the organic laws, impersonating as the guardian for protecting the doctrine of basic structure i.e., the fundamental rights of the citizens and keeping necessary checks and balances upon the constitution.

The Judiciary has imposed judgments that have aided the other branches of government, namely the executive and the legislature, in keeping up with the changing needs of society. However, since the change in its role and a remarkable shift in the working pattern of the courts, there has been an enormous expansion of unaccountable judicial power that has attracted the attention of many, and there simultaneously have been considerable shifts in the working pattern of the courts.

In the process of Judicial Activism, the mechanism of the courts can be summarized in two ways i.e., on the one hand, the Judiciary has taken upon itself the power of ensuring maximum freedom to the masses and has galvanized the executive and legislature for the welfare of the citizens and the society and on the other hand, there have been instances, as stated by the eminent scholars that it has acted whimsically without having regard to the spirit of the constitution and has thereby manifestly encroached in the domain of other state organs.

The circumstances that give rise to Judicial Activism can be enumerated below:

  • When the primary wings of the government i.e., the legislature and the executive fail in implementing their respective responsibilities, then it results in the failure of the responsible government, which is the hallmark of a democracy and the collapse of such a government warrants a demand for some unconventional steps. When the legislature fails in making an appropriate law and the executive fails in executing that particular law, then in those circumstances, the judiciary steps into the areas of the primary wings, which can be termed as judicial legislation or execution and government by judiciary.
  • In cases, where the basic structure doctrine is infringed, i.e., the fundamental rights of the citizens are violated by the government or any other third party, then the judges and the judiciary steps in to provide aid to the citizens by providing adequate protection to the fundamental rights of the citizens.
  • The legislature and the executive work coherently. Hence, even in spite of the making and execution of various legislation, there are still some areas that are left untouched by these primary wings. Thus, when the legislature and the executive fail in the making and implementation of the laws for meeting societal needs, the courts take a shape as that of judicial legislation and judicial execution thereby encroaching the domains of legislature and executive.

Is the Judiciary Overreach (ing)? – An Arguable Point

Judicial Overreach

The judiciary has been facing wrath from the legislature and the executive. In terms of explaining the concept of Judicial overreach, it can be interpreted as when judicial activism is sometimes overtly exercising its powers, then it results in usurping the powers of the legislature and the executive, which are the two primary organs of the government. Judicial overreach is initiated when the legitimate power of judicial activism ends. When Judicial Activism loses its legitimacy i.e., the further judicial exercise of power beyond the limited functionalities, then it amounts to Judicial overreach.

When the courts or the judiciary take over the functions of the other governmental institutions then that amounts to Judicial Overreach. The term has been aimed at acting as a bulwark against the unjustifiable attempt of the judiciary for performing the functions of the executive and the legislature and also emphasizing a limit on the judicial functions. If observed from the doctrine of the separation of powers, it has been interpreted that no state instrumentality or any other is under jurisdiction for overstepping, inferring it usurping the functions that have been mandated within the constitutional mechanism. There is catena of judgments, in which the judiciary has encroached into the domains of executive and legislature, which can be enumerated below:

  • In the case of Aravali Golf Club v. Chandra Mass & Hass & Ors, 2008, the Punjab and Haryana High Court had directed the government to create the position of tractor driver and that the petitioner be hired in accordance with those instructions. The High Court had encroached on the domains of the legislature and executive, because the creation or abolition of posts is entirely within the purview of the executive, and the judiciary has no jurisdiction to direct the executive in making such appointments or enacting any law. The Supreme Court, however, did not agree with the High Court’s decision, and no relief was granted to the petitioners.
  • In the case of Mansukhlal Vittal Das Chauhan v. State of Gujarat, 1997, the Gujarat High Court had ruled and given directions to the secretary of the government for granting sanctions to the petitioners, and also stated that the sanction must be treated as the order passed by the secretary of the government and not by the High Court. This is the case, in which the judiciary exercised its powers overtly thereby encroaching on the domain of the executive. 
  • In the case of Supreme Court vs Union Of India on 16 October 2015, the judiciary had directed and had appointed, and introduced committees and also denied the executive from exercising its duty on the appointment of judges through collegiums, thereby invalidating the National Judicial Appointments Commission Act for the purpose of seeking to enforce accountability and transparency, which resultantly encroached upon the domain of the executive and can be termed as a case of Judicial Overreach.

Approaches to be adopted for abstaining from Judicial Overreach

Judicial Activism and Judicial overreach has a thin line between them, which should be maintained by all three organs of the government. Any form of conflict among all these organs results in the failure mechanism of the government both at the center and the state. Hence, the few steps that can be taken for abstaining from Judicial overreach are:

  • The doctrine of the separation of powers between the legislature, executive, and judiciary must be followed, and the organs must not encroach within each other’s functionalities and mechanisms and must exercise their functions with full transparency and accountability.
  • The Constitution of India has accorded the powers to the organs individually. It has drawn a Lakshman Rekha among all the three organs of the government with the view of maintaining independence in their respective functioning and prevent not just judicial overreach but any kind of encroachment in other domains. Article 50 and Article 361(vi) of the Constitution have ensured and separated the judiciary from the executive on the basis of the working and the functioning of the executive branch.
  • The three wings of the government must abstain from usurping the powers into each other’s domain. The courts have been barred from exercising their writ of mandamus for issuing any kind of orders to the legislature and the executive.


The powers and the functions of the three wings of the government have been demarcated into the criteria of ‘essential functions’ under the constitutional framework, and as per the doctrine of separation of powers the function of the judicial review and Judicial Activism must be exercised within the ‘incidental functions’. The moment the judiciary takes decisions outside the purview of these incidental functions, then and there it usurps, judicial overreach, and overpowers the other wings of the government thereby infringing the constitutional limits. It has also been argued that Judicial Activism has shifted its power from the legislature to the judges, a process bristling with the possibilities of the politicization of the judiciary.

But these several allegations stay stranded that if sometimes any of the primary organs of the government fail to amend, introduce, and execute any of the laws in accordance with the welfare of the society, then the Judiciary i.e., the High courts and the Supreme Court are cast with a higher and superior responsibility. Some of the instances are that of the concept of Public Interest Litigation, Lok Adalat, and legal aids which as a whole have put the judiciary on a higher pedestal and the citizens have expressed their consent on the same.

In the words of the author, it can be concluded that judicial activism must be exercised in limited actions and if it is exercised in the form of excessive judicial interference then it would result in conflicts among the various primary organs of the government. Thus, it is also stated that the principle of non-encroachment is one of the important fundamentals of the doctrine of separation of powers, and its encroachment would lead to disruptions in constitutional mechanisms.

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