CONSTITUTIONAL LAW

ASSIGNMENT ON

JUDICIAL OVERREACH
vs.
JUDICIAL ACTIVISM

Submitted By
Shimran Zaman
Roll No. 50
Faculty of Law
Jamia Millia Islamia University
New Delhi
TABLE OF CONTENTS

1. Introduction

2. Historical Development

3. Judicial Activism and Judicial Overreach

4. Transformation of Judicial Activism and Judicial

Overreach

5. Perils of Judicial Overreach and its probable solutions

6. Conclusion
INTRODUCTION
The powers of the State are generally characterized as the
legislative power (i.e. making of the laws), the executive power
(i.e. enforcing those laws) and the judicial power (i.e. adjudicating
the disputes by applying the laws). Though the rigid separation of
powers is impracticable and not possible, there should have
cooperation and coordination among the three branches of the
government. It is beyond doubt that the role of judiciary transforms
the conventional role into a more active participatory role to cope
up with the changing society. The judicial attempts for protecting
the rights of the citizen properly and for restraining constitutional
transgressions by the others and sometimes, it suffices beyond the
traditional boundary by using a judicial mind and judicial intellect
and hence, it introduces judicial activism. The modernist judicial
approach of „judicial activism‟ holds its position with the aim of
ensuring just and proper justice to all. It is noted that, if judges
should use this instrument whimsically, it should be ascertained as
what is commonly known as judicial overreaching.

The line between the Judicial Activism and Judicial Overreach is

very narrow. In simple terms, when Judicial activism crosses its
limits and becomes Judicial adventurism, it is known as Judicial
Overreach. When the judiciary oversteps the powers given to it, it
may interfere with the proper functioning of the legislative or
executive organs of government.

Under the philosophy of trias politica, there should have three

organs of the State and these organs should maintain their certain
powers under the mechanism of checks and balances. Hence, the
judiciary is entrusted with dispute resolutions activities through
different modes, by which it uses its intellect and creativity.
HISTORICAL DEVELOPMENT
The concept “judicial activism” is pronounced much more in the
scholastic realm of legal and the political studies. Its root is
founded intrinsically in the English concepts of “equity” and
“natural rights”. At the very beginning, the courts declared
Virginia Statute for Establishing Religious Freedom 1786 void
because it violated a 1783‟s peace treaty with Great Britain. 1 The
concept can be traced back in USA to the case of Marbury v
Madison,2 where the Chief Justice Marshall laid down the
foundation of judicial activism besides judicial review. After that,
in the modern era, the Arthur Schlesinger introduced the term
“Judicial Activism” to the public Schlesinger‟s article to
characterize several judges as the activists. 3 From the very
beginning, the people of Bangladesh have held the judicial
authority in a very high esteem. Before the liberation war, the
Constitution of Pakistan, 1962 was silent regarding the matters of
the judicial review. But, this concept was introduced through the
judicial activism in the case of Jubendra Kisore v East Pakistan 4
and afterward in the case of Mustofa Ansari v Deputy
Commissioner,5 the court struck down a provision in the
Chittagong Hill Tracts (Regulation) Rules 1960. After the
independence of Bangladesh, the first wind of judicial activism
was felt in the case of A. T. Mridha v State 6 concerning the legality
of detention under the Bangladesh Scheduled Offences (Special
Tribunals) Order 1972,7 where the Court pronounced that its
1
Ware v Hylton 3 US (3 Dall.) 199 (1796)
2
5 US 137 (1803)
3
Arthur M. Schlesinger, „The Supreme Court: 1947‟ (1947) 35 Fortune 202, 208
4
[1957] 9 DLR 21 (SC)
5
0 [1965] 17 DLR (Dacca) 553 (HCD)
6
[1973] 25 DLR 335 (HCD)
7
President‟s Order No.50 of 1972 (BD)
constitutional supervisory power could not be ousted by the sub-
constitutional legislation. After that, there are several cases that
have been relating to the matter of fundamental rights decided on
the basis of the judicial activism.

JUDICIAL ACTIVISM AND JUDICIAL

OVERREACH
1. Judicial Activism: On general approach, the term “Judicial
Activism” refers to the court’s decision, based on the judge’s
personal wisdom or political affiliation that do not go rigidly
within the text of the statutory passed by the legislature and the use
of judicial power broadly to provide remedies to the wide range of
the social wrongs for ensuring a proper justice.8 Paul Mahoney
narrated that, “Judicial activism exists where the judges modified
the law from what was previously stated to be the existing law
which often leads to substituting their own decisions from that of
the elected representatives of the people.”9 Technically, the
concept is related broadly to the constitutional interpretation and
statutory construction. When judicial activism goes beyond what is
acceptable, it is often called judicial overreach. Judicial activism is
when the judiciary takes on an active role in society to dispense
social justice. Tools used in this regard are suo motto cases and the
Public Interest Litigation (PIL) even when there is no complaint

8
Christopher Wolfe, Judicial Activism: Bulwark of Freedom or Precarious Security ( Rowman & Littlefield
Publisher Enc 1997 )
9
Paul Mahoney, „Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two
Sides of the Same Coin‟ (1990) 11 Yale Human Rights & Development Law Journal 57
from the aggrieved party. At the other end of the spectrum is
judicial restraint.

2. Judicial Overreach: The term ‘Judicial overreach’ is often used

when the judiciary, one of the organ of the government, oversteps
its jurisdiction, that is, when it supposedly takes on an interfering
role in the functioning of the legislative or the executive organs of
the government. There is a rather narrow line diving judicial
activism and judicial overreach. Judicial Overreach can also be
said to be an extreme form of judicial activism where arbitrary,
unreasonable and frequent interventions are made by judiciary into
the legislature’s domain, often with the intention of disrupting the
balance of powers between executive, legislature and judiciary.

TRANSFORMATION OF JUDICIAL ACTIVISM

IN JUDICIAL OVERREACH
Just opposite concept of judicial activism is judicial overreach or
also known as judicial over-activism, but it is very difficult to
determine a median line between these two varied concepts. When
the judiciary crosses over the power by interfering the proper
functioning of the legislature or executive organs of the
government and by causing a grave breach of the doctrine of the
separation of powers, the judicial activism becomes judicial
adventurism, which is popularly known as the judicial overreach.
As Mr. Chief Justice J. S. Verma stated that, “Judicial activism is
appropriate when it is in the domain of legitimate judicial review.
It should neither be judicial adhocismn or judicial tyranny.”10 The
supervisory power is not vested with unlimited prerogative to
correct all types of hardship and it must be restricted to the cases of
grave dereliction of duty and flagrant abuse of fundamental
principles of the law and justice.11 Thus, in the name of the
interpretation of the Constitution and the laws, the judiciary cannot
create any new laws or amend the existing laws.12 More
specifically, the court’s duty is to interpret the law and not to
intervene in the policy-making of the government.13 And, the
judiciary must exercise self-restraint to preserve balance of powers
among three organs entrusted by the Constitution. 14 For better
understanding, the US Supreme Court has also laid down a
pragmatic test in the case of Baker v Carr 15 for judicial intervention
in the matter with a political hue in which determination is the
precondition for judicial intervention, that the controversy before
the court must have a justifiable cause of action and it should not
merely suffer from the lack of judicially discoverable and
manageable standards to resolve. However, judicial activism
should not be used to lead to the Constitutional principles of the
separation of powers getting eroded.

10
R Shunmugasundaram,„Judicial activism and overreach in India‟ (2007) 72 Amicus Curiae accessed
2January 2018
11
Durga Das Basu, Constitutional Remedies and Writs ( 2nd edn, Kamal Law House, 2009) 38
12
Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 92
13
Anwar Ali Sarkar v State of West Bengal [1952] AIR 75 (SC)
14
Minor K Priyadarshini v The Director of Elementary [2005] 3 CTC 449
15
369 US 186 (1962)
PERILS OF THE 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 the three branches

(i.e. legislature, judiciary and executive) with the proper checks
and balances mechanism.16 The court solely depends on the textual
base of laws, even if the text fails to provide sufficient relive and
the court does not interfere the function of the other organs. 17
Judicial activism have created the scope for judge-made laws and
that is the clearly abuse of the constitutional power. It is
imminently illicit, when the judiciary takes steps for formatting
laws with little or no perceptible origin in the words or design of
the Constitution.18 Eventually, the parliament is entrusted for
making laws solely and the judiciary does not encroach the power
of the legislator.19 Moreover, the court may invalid legislation but
not constitutional amendment.20 Most importantly, the judge’s
decision is affected by several social and political factors that
render it in a questionable state.21

16
Charles de Secondat, Baron de Montesquieu, The spirit of the laws (Cambridge University Press 1784)
17
Holly Martin, „Legislating Judicial Review: An Infringement on Separation of Powers‟ (2013) 17 (4) N. Y.
U. Journal of Legislation & Public Policy 1097
18
Bowers v Hardwick478 US 186 (1986)
19
All India J A v Union of India [1992] 1 SCC 119
20
Golok Nath v State of Punjab [1967] AIR 1643 (SC)
21
Manoj Mate, „The Rise of Judicial Government in the Supreme Court of India‟ (2005) 33 (1) Boston
University International Law Journal 169
Rule of Court Dicey‟s concept

“La Principe de Legality” (i.e. rule of law) 22 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 that is clearly a sharp blow over the separation of powers.
Judicial activism is an active method for execution of the rule of
law and when the Court is swayed or when it overreaches itself, it
should be considered as judicial populism.23 It should be kept in
mind that, “Judicial activism should neither be judicial ad hocism
nor judicial tyranny.” Judges do not create law but merely ascertain
its true meaning and it should motivate turmoil, if they show
propensity to make laws.24 It is to be deemed as the naked
penetration of the parliamentary function. There must be a
reciprocal respect and adjustment among the branches of the
State.25 The apex court is not benevolent authority beyond the
arena of procedural irregularity and it has a no discretionary
authority to disdain the statutory instructions. Indeed, it is the
sacred obligation of the judiciary to abstain from an overactive
approach.26

Lack of Accountability

22
Albert Venn Dicey, Lectures Introductory to the Study of the Law of the Constitution ( Macmillan and
Company 1885)
23
S. P. Sathe , „Judicial Activism: The Indian Experience‟ (2001) 6 Washington University Journal of Law &
Policy 29
24
J.S.Verma, „The Indian Polity: Separation of powers‟ [2007] 35 Indian Advocate 32
25
State of Rajasthan v Prakash Chand [1998] AIR 1344 (SC)
26
H U D A v Roochira(1997) 1 UJSC 368
It is a general tendency that the person with a great power performs
his dominance so long as it is obstructed by a certain boundary.
The extended jurisdiction of the judiciary sparks flame in the
judicial mind that might be caused by the abuse of power.
Accountability and transparency are crucially important for
democratic regime, for that reason the judiciary also should be
accountable and transparent as well. But, unfortunately the
constitution fails to bind the judiciary as accountable even to the
sovereign people27 and gradually it damages mechanism of the
checks and balances. Hypothetically, judicial activism is fallen
with the questions of legality.

Probable Solutions of Controlling Judicial Overreach

Judicial activism is like a fresh wind of the democratic system of

the government. But, it should be maintained with a proper
filtering mechanism, without this, it will cause tumultuous
situation. There should have proper guidance to control the judicial
overreach for ensuring an effective balance of powers among the
branches of the State.

(a) Judicial Restrain

Judge functions to resolve the legal issue compliance with the

original intention of the law-maker and the judicial precedent and
in this connection, judicial restraint is a concept that confines the
judges within the constitutional power. Even though, the
constitution does not make the judiciary as superior over the other
organs and there should have been balance among reforms,

27
Divyanshu Bhandari, „Judicial Accountability And the Independence of The Indian Judiciary‟ (2014) 2 (7)
International Journal of Liberal Arts and Social Science 144
developments and implantation.28 The judges had been exercised
judicial restraint keeping in mind the doctrine of the separation of
powers29 and prevented themselves from issuing the rule in
compliance with the administrative instruction and for want of
political inquiry.30As the concept of the judicial activism infers
grandiose thought, it is extremely perplexing to draw a stria
between the appropriate judicial intervention and judicial
overreach.31 Only where justifiable causes of action, having
judicially discoverable and manageable standards, are observed,
the court should intervene on it. Though it is seemed the judge’s
aims and functions are quite reverse, the judges cannot arrogate the
powers of the executive or that of the legislature. 32 The Court
functions under the certain self-imposed limitations as a matter of
the prudence and policy and hence, self-denial indicates not to do
the act, which is condemned previously.33

(b) Applying 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), Cohn and Kremnitzer have suggested a methodology
for the construction of a straight parameter between the concept of
judicial activism and overreach.34 They provide seventeen factors
in this regard, such as judicial stability, interpretation,
majoritarianism and autonomy, judicial reasoning, threshold
28
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
29
Anwar Ali Sarkar v State of West Bengal [1952] AIR 75 (SC)
30
Dr. Mohiuddin Farooque v Bangladesh[1997] 49 DLR 1(AD)
31
Pratap Bhanu Mehta, „Judicial Overreach: Its Overwhelming Evidence Cannot be Ignored‟ [2007] 35
Indian Advocate 79
32
Indian Drugs & Pharmaceuticals Ltd v Workmen [2007] 1 SCC 408
33
Arthur M. Schlesinger Jr., „The Supreme Court: 1947‟ Fortune (New York City, January 1947) 202, 208
34
Margit Cohn and Mordechai Kremnitzer, „Judicial Activism: A Multidimensional Model‟ [2005] 18 (2)
Canadian Journal of Law & Jurisprudence 333
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 as well.35

CONCLUSION

Making balance among the State’s branches is the precondition for

maintaining constitutionalism. Under the common law adversarial
jurisprudence, the judges are deemed as non-aligned adjudicator
and they serve for the promotion of 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 fulfillment of the statutory dents for upholding the public
longing without overlapping the power of others. Factually, the
judicial activism has a very effective approach to almost every
difficulty in the present time, but it is never desirable dominion of
the judiciary. Moreover, the exhaust of constitutional principles of
the separation of powers is not welcomed. Therefore, this double-
edged sword should be used with a caution and discernment tactics
as well.

35
John Owen Haley and Toshiko Takenaka, Legal Innovations in Asia: Judicial Lawmaking and the Influence
of Comparative Law (Edward Elgar Publishing Ltd 2014)