BARRIERS TO THE IMPLEMENTATION OF INCLUSIVE EDUCATION FOR INTELLECTUALLY DISABLED CHILDREN IN INDIAFebruary 9, 2019
DISRUPTION IN PRIME INVESTIGATION AGENCY (CBI)-ALOK VERMA CONTROVERSYFebruary 20, 2019
In the recent times, there has been numerous instances where judiciary has acted very dynamically and actively to delve into the domain of legislation. Sometimes it becomes a matter of debate whether this hyperactive role of the Judiciary is violating the “doctrine of separation of powers” i.e., the executive, legislative and the judiciary performing their respective tasks and also keeping a check. The primary function of Judiciary is regarded to be ‘resolution of disputes’ which on a number of occasions it exceeds those functions and moves on to ‘judicial legislation’.And when this exceeds the duty and powers enshrined on the courts, it is referred to as ‘Judicial Overreach’. Following are some of the judgments which have been a topic of debate in the recent years:
In Shyam Narayan Chouksey v. Union of India, the Supreme Court directed that the National Anthem would be played before the screening of any movie in theatres. This judgement ignored many of the previous verdicts of the court and also faced implementation issues.
In the matter of Ajaykumar v. Union of India, a PIL was filed for censoring the movie “Jolly LL.B. 2” in the Bombay High Court and its order was an ultra-vires and illegal act as the court had no jurisdiction and only the Central Board for Film Certification (CBFC) had powers to do so. The court, however, directed the appointment of a committee and the according to the report of the committee ordered to cut certain scenes and also directed CBFC to re-certify the film. This was clear act of judicial overreach by the court ason a previous incident with the movie “Jolly LL.B.”, the Delhi High Courtdidn’t allow the petition under similar circumstances.
In State of Tamil Nadu v. K. Balu, the Supreme Court directed the government to revoke the license of liquor shops within 500m of any national or state highway. This verdict of the apex court was an unnecessary interference as it is the duty of the government to decide in the matters of Directive Principles of State Policy and courts should not force them to implement. This direction by the court also faced a lot of practical issues such as loss of revenue, loss of employment and the also lacked proper evidence showing drunk driving as the main cause of road accidents. Consequently, the court had to issue certain clarifications afterwards.
In Centre for Public Interest Litigation (CPIL) v. Union of India, the apex court ordered the cancellation of telecom licenses and spectrum as the process of allocation was flawed. This direction of the court proved to be fatal for the economy of the nation as many of the companies ended up in debt and the whole telecom sector had to face huge loss. This matter is considered as that of judicial overreach as the economic decisions of the nation are of the legislative and executive bodies and not the court.
In Board of Control for Cricket v. Cricket Association of Bihar, a committee was setup by the apex court after allegations of corruption and maladministration in the board. The committee, headed by a retired Supreme Court judge, Justice R.M. Lodha, recommended certain reforms includinga changein the structure of the board. This direction of the court was flawed as the board is a private body which functions through its own by-laws.
In the infamous case of Triple Talaq, the Supreme Court went to a clear path of judicial legislation by setting aside the practice of ‘talaq-e-biddat’ and played a very activist role. The minority opinion of the court given by Chief Justice Khehar provided that it was the government’s job to be pro-active and bring forth a legislation rather than acting on the sidelines and giving support to view of prohibiting the practice of ‘talaq-e-biddat’. This verdict also faced a lot of implementation issues as a number of cases came up before the local authorities regarding the practice being continued but the public authorities found themselves helpless as they had no statutory backing to act and arrest the culprits.
The most recent incident of Judicial Activism by the Supreme Court was in the Sabrimala Dispute, where the court ruled that women of every age-group should be allowed inside the Sabarimala Temple without any restriction so as not to violate the fundamental rights to equality and freedom. This verdict also faced a lot implementation issues as till now no women entered due to a prolonging protests by people and even the temple authorities. The task of the legislature and executive has been narrowed down by the judiciary by this judgement.
The recent incident of the Section 497 of the Indian Penal Code in the case of Joseph Shine v.Union of India, where the apex court held that Section 497 IPC criminalizing Adultery is unconstitutional being violative of Right to Privacy under Article 21 of the Constitution. The court acted in a very pro-active manner where it should have left the job to the legislature to decide what is crime and what not.
In the much appraised judgement of the Supreme Court in Navtej Singh Johar v.Union of India, it decriminalized sexual intercourse between same sex as it violated the fundamental rights of the individual (Section 377, IPC). This judgement, according to some groups, was an act of Judicial Activism as these are the tasks of the legislature not the judiciary.
The Judiciary has not acted in such a pro-active role since independence but assumed such a role in a full-fledged manner only after the proclamation of emergency in 1975. The court has sometimes acted in a very prudent manner and made a very informed choice by ruling for the welfare of the people. However, the verdicts have not always been subject to an easy acceptance by people and in numerous instances faced implementation issues. In past decade, the introduction of PIL helped combating a lot public problems. However, in the recent years it has been seen that the verdicts of the courts faced a lot of criticism and acting in Judicial Overreach. Justice Markandey Katju heavily criticized a lot judgments including the Triple Talaq verdict and Sabarimala verdict. Overall the act of judiciary is for the welfare is a boon but Judicial Activism should not reach a point where it becomes an overreach and violates the doctrine of separation of powers undermining the legislature and executive. _____________________________________________________________________________________________
AIR 2018 SC 357.
Shilpesh Chaudhary v. Union of India, MANU/DE/3855/2013.
 AIR 2017 SC 262.
Shayara Bano v. Union of India, AIR 2017 SC 4609.
Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.
 AIR 2018 SC 4321.
ABOUT THE AUTHOR
Yash Raj is a II year student of National University of Study and Research in Law (NUSRL), Ranchi. He has a keen interest in Cyber Law and Constitutional Law.