In India, like most democracies, the functions of rule making, rule enforcement, and rule interpretation are separated into the three institutions of the legislature, executive, and judiciary, which operate in demarcated jurisdictions, are staffed by different individuals, have distinctive rules of procedure and work methods, and are answerable to different bodies.

The legislature’s power to make laws is not absolute. Judicial review is the process by which the judiciary reviews the validity of laws passed by the legislature. The power of judicial review comes from the Constitution of India (Article 13). The provisions of Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.

Judicial activism refers to a more active role taken by the judiciary to dispense social justice. It functions through the mechanisms invented by the Indian judiciary, which have no Constitutional Articles/authority to support its origin, such as “suo moto” (Latin legal term for “on its own”) cases, public interest litigation (PIL), and new doctrines.

Suo moto cases and the innovation of PILs along with the discontinuation of the principle of locus standi (right to appear and be heard before a court) has allowed the judiciary to intervene in many public issues even when there is no complaint from the concerned party.

When judicial activism goes overboard and becomes judicial adventurism, it is called judicial overreach. In doing so, the judiciary oversteps the powers assigned to it and may interfere with the proper functioning of the legislative or executive organs of government and goes against the spirit of separation of powers. This is undesirable in any democracy.

On the other hand, ‘judicial romanticism’, which is one step ahead of judicial activism, is the pattern of thinking that always looks to courts as a solution to any problem.

Activism differs greatly from ordinary adjudication in the sense that there is no litigation between two parties and the advisory opinion of the court is neither binding on the government nor executable as a judgement of the court. The United States (US) Supreme Court had decided early on against such a role, on the basis that it would encroach upon the legislative function and, therefore, negate the separation of powers that the US Constitution stands for.

The invention and ease of filing a PIL has made things complicated. At present, the Supreme Court, for example, is hearing a PIL filed by political activists opposing the deportation of Rohingyas who have illegally entered the country. The case has enormous consequences, which most of us are not fully aware of. Any stay on the deportations will make it impossible for the Union government to turn back individuals and groups that seek refuge from persecution.

In Europe and many other countries, this kind of generosity towards asylum seekers has led to significant problems in political and economic life. Ideally, any decision regarding who can settle in India belongs to the Union government while the Passport Act covers the acquisition of Indian nationality. There is considerable discretion in the matter of refugees and asylum seekers and we would appreciate it remaining that way.

A lot of people will argue that PILs are as democratic as they can get, and provide for a mechanism for people to raise their concerns and make appropriate changes in the system. What these people forget is that a democracy is not limited to the over-intellectualised counterparts of the urban areas who have easy access to courts and money to fight the case, that democracy is not limited to the elite activists and lawyers but also to the 70 per cent of the rural population who rarely get to visit a court in their life and to the urban poor who probably don’t even understand what a PIL is.

Democracy is meant for all and not just for the privileged and, therefore, in that respect, a PIL seems to be undemocratic. This is not to say, in absolution, that PILs should be scrapped, but that they should be regulated and tested to see which sector of society they benefit and if it is actually coming organically from that sector. A populist approach, which we are increasingly witnessing these days, would destroy the idea of PIL as envisaged originally decades ago.

In a democracy governed by the rule of law, the courts have a duty to dispense affordable and speedy justice to the poor. If the courts wish to be activists, they have more than enough of an agenda within their sphere of activity without encroaching on legislative and executive jurisdictions. The Supreme Court is increasingly trying to govern the country and trying to correct every ill that exists. But this is neither within the powers of the court nor does it have the capacity to do so. The priority must be the protection of human and fundamental rights.

The Supreme Court taking over the running of cricket in India, for instance, has led to absurdities as contained in this quote from a news report: “SC allows BCCI to spend Rs.1.33 crore for organising the two remaining Test matches between India and England... A bench led by Chief Justice T S Thakur also allowed BCCI to incur expenditure of up to Rs. 25 lakh each for the three one-day internationals and three T20 matches against the English team.’

It is rather absurd that the Supreme Court of India was trying to act like the chief financial officer of a corporation.

“SC bars firecrackers in NCR”, “Discipline errant auto-drivers, HC tells government”, “HC asks ministers to take personal interest in malnutrition fight”, “HC allows school to hike fees”, “HC to hear plan on penguin viewing”, “Apex court refuses to lift ban on glass-coated Manja for flying kites” – these are just some of the news headlines from the recent past that show that the top courts of the country have assumed a role that they shouldn’t be or is not authorised to assume.

The courts have also started entertaining frivolous matters like the one on ‘Sikh’ jokes. This becomes all the more critical when we realise that pendency in SC has crossed 60,000 cases.

With the ruling that the national anthem should be played in all cinema halls and everyone must stand up to instil a sense of 'Constitutional patriotism', judicial overreach reached rock bottom – because there is no wrong being righted here, no illegality being corrected, just pure misuse of power.

Where Supreme Court Knew It Was Overstepping Mandate

In the case Divisional Manager Aravali Golf Club And Ors. V Chander (SLP 3358 Of 2007), the court observed that, “There is a broad separation of power which the judiciary must respect and not encroach into each other’s domain. Judicial restraint complements the twin, overarching values of the Independence of the judiciary and the separation of Powers.”

In Union Of India Vs. M. S Muhammed Rather Sc (Civil Appeal No. 7336 Of 2002), the court was of the opinion that “the court has only judicial power to review that executive order, it cannot arrogate to itself the power of the executive.”

In the case of State Of U.P And Ors. Vs. Jeet Bisht Singh (SLP Civil No. 6928 Of 1999), Justice Markandey Katju observed that, “This appeal furnishes a typical instance of a widespread malady which has infected the judicial system in India, namely the tendency in some courts of not exercising Judicial restraint and crossing their limits by encroaching into the legislative domain, contrary to the broad separation of Powers envisaged under our constitution.”

In Goa Foundation vs. Union of India (“Ban of mining in Goa” case), the court stated that “in exercise of its power under Article 32 of the Constitution the court can direct the State to prohibit mining activities in an area adjacent to a National Park. Environment is one of the facets to Right to Life guaranteed under Article 21 of the Constitution. Environment is therefore a matter directly under the Constitution. If any project is harmful to the environment it would feel obliged to step in.”

In State Of Tamil Nadu Vs. K. Balustrade (“Liquor ban on National Highways” case), the Supreme Court observed that “Liquor licences in respect of potable alcoholic liquor are granted by State governments. The power of the States to grant liqour is undoubted. Duty of the State to raise level of nutrition and standard of living and improve public health and prohibition of the consumption of intoxicating drinks and drugs which are injurious to health. The court opined that it was necessary that the policy is revisited and a strict enforcement of the ban takes places in favour of the public.”

Of late, it is seen that, in a way, the judiciary is becoming a usurper of power under the guise of Articles 142, 143, 144. They are doing justice as per their own will, which was never the intent of our founding fathers or the Constituent Assembly. The Supreme Court has gone to the extent of rejecting the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment, which sought to give politicians and civil society a say in the appointment of judges to the highest courts.

In a controversy from the recent past relating to contempt and a petition demanding a special investigation team (SIT) probe in a Central Bureau of Investigation (CBI) case of a retired judge, arrested for taking a bribe, in Kamini Jaiswal vs. Union Of India, judges said the Chief Justice of India (CJI) can also decide the case connected with the CJI.

It’s a violation of the doctrine of natural justice, which says no one can be the judge of its own cause.

Another noteworthy pattern is the unnecessary stepping in of the judiciary in inoffensive religions traditions and activities. In November 2016, the apex court had suspended the licences that permitted the sale of firecrackers, wholesale and retail, in the National Capital Region.

In September 2017, the Supreme Court temporarily lifted this order, but again, reinstating it in October 2017. It not only reflects how confused the court is about its decision but also its indifference towards taking away the livelihoods of firecracker shopkeepers at such a short notice, who have already stocked up for sales for the year.

In banning firecrackers, the Supreme Court endangered the livelihoods of lakhs of people without even considering the mountain of evidence that points towards the fact that firecrackers are not the major source of pollution in the region.

Today, while dealing with the same issue of a ban on firecrackers during the festival of Deepavali, the apex court held that only “low polluting” green crackers, which are within permitted decibel limits and emission norms, will be allowed and has urged the states to explore the feasibility of community cracker lighting during festivals.

It is pertinent to note that the Indian Institute of Technology, Kanpur, conducted a detailed study in 2016 to examine the major causes of air pollution. Road dust, vehicular emissions, crop burning, and waste burning emerged as the top contributors; firecrackers were not in the picture.

Even in the matter of pollution caused by firecrackers, the long-term solution would be to regulate the manufacturing of crackers and lay down standards for enforcement. This shows how cut off from ground realities are our courts.

Only last year, the Supreme Court banned the bull-taming festival called “jallikattu” in Tamil Nadu for Pongal festivities because of a PIL filed by the animal rights activist organisation, People for the Ethical Treatment of Animals or PETA. This led to anger and revolt in the hearts of Tamilians, whose agriculture practice depends on this festival. The festival doesn’t only have a cultural significance but also a bigger one connected to livelihood.

Why is the judiciary conveniently picking up activities that are core to certain religions and important parts of their tradition? If the judiciary controls cricket or alcohol, that might still be understandable because that affects all citizens of the country “equally”. But controlling activities that affect a specific religion is highly discriminatory in nature and a clear overriding of Article 25, the right to freedom of religion.

The judiciary cannot decide upon questions of belief, opinion, or political wisdom, nor pronounce upon questions of history, archaeology, and mythology.

We must also understand how and why cases such as triple talaq do not concern religion. First, triple talaq as a case came up organically when women, such as Shah Bano and Shayara Bano, suffering oppression, fought for their rights and ultimately won the battle.

Second, triple talaq had so far been permissible as a result of Section 2 of the Shariat Act, 1937. Now, after being codified and tested, it was found to be violating Article 14, equality before law, which made it an arbitrary practice and hence unconstitutional.

The most recent instance of judicial activism that has made a mark in the national consciousness is the Sabarimala verdict. It was quite evident all along that the petitioners were not devotees of Lord Ayyappa and did not hold any particular reverence in their hearts for traditions or rituals. And yet, the court deemed it fit to infringe upon the rights of devotees, which in turn emboldened activists with vested interests to turn the temple into a battleground for their ideological war.

Justice Indu Malhotra, the only woman on the bench, wrote the dissenting judgment. She was of the view that it was not for courts to determine which religious practices are to be struck down. She opined, “Issues of deep religious sentiments should not be ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article 14.”

She further said, “What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere unless if there is any aggrieved person from that section or religion.”

Justice Malhotra’s views were precisely on the point of how the courts have gone on to adjudicate issues that either don’t fall within their realm or are too vague to be adjudicated upon by the apex court.

What makes any action one of activism or overreach is based entirely upon the perspective of the citizens of the country and is, hence, difficult to regulate. This establishes the onus even more on the judiciary to be more cautious and particular in the PIL and suo moto cases they choose to address.

The judiciary is not meant to compensate for the inadequacies of governments or the failure of the political process. For the rule of law to prevail, the judiciary must be universal, impartial, impersonal, but, most importantly, restrained.