Judicial Independence Over Judicial Overreach

The line between judicial independence and judicial overreach is a thin one. A takeover of function of other organ may become a case of overreach[1]– Dr.Manmohan Singh

The line of conflict that is drawn is that whether independence of judiciary is not exceeding to have judicial overreach to the powers of other organs of the government namely as Executive and Legislature. The above words of our former Prime Minister of India says that Supreme court is accused of having Judicial overreach and taking over legislative and executive functions. There have been several high profile instances where the courts taking the plea of independence of Judiciary have crossed the line and had interfered in the functioning of other organs. In the case of Delhi sealing drive case[2] the Prime Minister was of the opinion that Supreme Court by taking the plea of independence of judiciary has crossed its power and had interfered in the functioning of executive. Justice Balkrishnan’s view was that, the application of judicial review was to determine the constitutionality of the legislation and to review the executive decision, sometimes creates tension between the Judiciary and the legislative and executive branch. Such tension is natural and to some extent desirable.

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But in the view of ours “independence of Judiciary does not hamper the functioning of other organs of the government, in spite Judiciary has been tagged with word of “watchdog” which aims to check the arbitrary powers of other organs of the government. If Judiciary was not independent will it be able to provide justice to masses? Whether the objectives mentioned in the constitution of India would be able to achieve? Why Independence of Judiciary is said to have Judicial Overreach, just because it interferes with functioning of the other organs of the government. But nobody looks the protective role that has been played by the Judiciary that it is the overreaching power of the Judiciary that it has been able to provide rights to masses which earlier was to far too seek”.

The Supreme Court of India is well aware of its limitations, and hence exercises self-restraint and caution over encroachment of the field exclusively reserved for the legislature and the executive but when the legislature fails to make the necessary legislation and executive fails to perform its function and fails to suit the changing times, it leads to a stage of erosion of confidence of the citizens in the constitutional values and democracy. In such an extraordinary scenario, the judiciary steps into the areas usually earmarked for the legislature and executive.

It is said that even if the Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society.[3] The judiciary steps forward to cover the uncovered areas though this is regarded as overreach but independence has more weigh over it.

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The best and prominent examples of judicial independence are of Vishaka v State of Rajasthan[4] and D.K Basu v. State of West Bengal[5] where Supreme Court lamented over that legislature had not brought in comprehensive legislation to deal with Sexual Harassment and Rights of arrested persons. The Apex Court exercising the power granted under Article 32 of the Constitution and laid the guidelines which would be treated as law declared by the Supreme Court under Article 141 of the Constitution.


The constitution of India under its different provision has provided for the concept of independence of Judiciary. These provisions have clearly drawn the “Lakshman Rekha” for both the legislature and Judiciary to maintain their independence in their respective functioning. Articles 121 and 211 forbid the legislature from discussing the conduct of any judge in their discharge of his duties. Articles 122 and 212 on the other hand prelude the courts from sitting in judgement over the internal proceedings of the legislature. Article 105 (2) and 194(2) protect the legislators from interference of the Courts with regards to his/her freedom of speech and freedom to vote. Thus, in theory, there is ample provision for each side to maintain its autonomy. But independence of any sort, whether by the judiciary or the legislature, throws up a million-dollar question: what happens when one side does not abide by the separation envisioned in the Constitution? On this, the Constitution is apparently silent, leaving it to the learned and responsible legislators and the judges to themselves ensure that they remain within their bounds. The sad fact, however, is that there have been numerous

instances where these rather pious intents of the Constitution have been flouted without check by both the sides. For example, during the phase of stand-off between the Supreme Court and the Delhi government on the issue of converting the public vehicles from diesel to CNG mode in Delhi, the Chief Minister Ms. Sheila Dikshit had lambasted the Apex Court inside the Legislative Assembly. Taking note of this from the media reports, the Apex Court sought explanations from the CM. The CM simply made an affidavit denying the media reports, and there ended the story. Similarly, in another such instance, a Janata Dal (S) MLA of the Karnataka Assembly cast grave aspersions on the integrity of judges who gave a ruling against the State Government in the Bangalore-Mysore Infrastructure Corridor project case. On July 19, 2006 presiding over a Bench comprising Justices C.K. Thakkar and P.K. Balasubramanian, Chief Justice Y.K. Sabharwal reacted with restraint and dignity: ―We express our deepest anguish over such statements made on the floor of the House.

Therefore, broadly speaking, in so far as adhering to the separation of powers by different organs of the state is concerned, this can only be done by self-restraint and self-discipline; there is no punitive mechanism in case of violation of the aforesaid provisions. Mechanisms like “contempt of court” and “breach of privilege “are not effective in maintaining the separation, and merely make passing appearances during individual incidents.

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[1] Speaking at the Conference of Chief Ministers and Chief Justices held in New Delhi in Apr 08, 2007.

[2] M.C.Mehta v. Union of India AIR 2006 SC 1325: (2006) 3 SCC 399.

[3] I.P.Massey, Administrative Law (2005)

[4] (1997) 6 SCC 241

[5] (1997) 1 SCC 416

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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