Day 9 – Q 1. Do you think judicial overreach can be antithetical to the idea of democracy? Critically analyse. (10 Marks) 

1. Do you think judicial overreach can be antithetical to the idea of democracy? Critically analyse. (10 Marks) 

क्या आपको लगता है कि न्यायिक अतिरेक लोकतंत्र के विचार के विपरीत हो सकता है? समालोचनात्मक विश्लेषण करें।

Approach-

Candidates need to write about what is judicial overreach. Then simply explain how it’s antithetical to working and idea of democracy also critically analyse the judicial overreach. 

Introduction–

Judicial overreach is a term commonly used when the judiciary seems to have overstepped its mandate. It is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government, i.e., the judiciary crosses its own function and enter the executive and legislative functions.

Body

Judicial overreach is considered undesirable in a democracy:

• Although this is a matter of perspective, there are many examples that are widely regarded as cases of judicial overreach in India. For example Imposition of Patriotism in National Anthem Case, Ban of Firecrackers, Proactive Censorship in case of Jolly LLB 2 (Movie). 
• In the times of Pandemic Judicial officers and lawyers micro-managing the day-to-day affairs of the Covid crisis in the country. Government officials are having to brief the bench about the prevailing circumstances for hours instead of being allowed to act in real-time. 
• It means the Court has violated the doctrine of separation of powers by taking on the functions such as law enforcement, policy making or framing of laws or interfering in day to day activities of the executive.
• 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. 
• Frequent interventions tend to weaken the functioning of those two wings of the constitution, which are expected to perform by themselves.
• Interfering with the proper functioning of the legislative or executive organs of government is undesirable in any democracy.

Promotes transparency and accountability in Governance:

• Article 142 enables superseding the executive and the legislative for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
• As the guardian of the constitution Article 142 provides its power to fill the statutory vacuum.
• To do “complete justice” it has often overridden the laws made by Parliament such as cases Union Carbide Case ,Ban on liquor sale on highways case decision was taken to avoid accidents due to drink and drive.
• It also sets out a system of check and balance and controls to the other branches of the government. For example In Vishakha v State of Rajasthan case, Supreme Court laid down the guidelines to protect a woman from sexual harassment at its workplace. 
• Bandhua Mukti Morcha Case the Hon’ble Court gave its landmark judgment on bonded labour system of India
• In Olga Tellis Case where Right to livelihood was declared part and parcel of the right to life.
• 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.
• 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.)

Way forward:

Judiciary should maintain judicial restrain it not only recognizes the equality of the other two branches with the judiciary, but it also fosters that equality by minimizing inter-branch interference by the judiciary.

Conclusion

Voltaire said, “With great power comes great responsibility”. It is clear that the responsibility to uphold powers within the constitutional frameworks lies with all stakeholders. However, courts will have to choose to overlook (politically) motivated fallacies and uphold the Constitution’s vision, which undoubtedly deplores overreach, by all pillars of the constitutional framework.