JUDICIAL ACTIVISM AND JUDICIAL OVERREACH: A COMPARATIVE STUDY OF INDIA, NEPAL, AND MALDIVES
By Garima Pahwa,Assistant Professor, Manav Rachna University, Faridabad, Haryana.
Email: pahwagarima12@gmail.com.
& Ishita Singh, Advocate, Delhi High Court.
Email: ishita.singh0423@gmail.com.
ABSTRACT
Judicial activism is a legal term that refers to judicial decisions that take into account primarily or wholly the personal or political observations of judges rather than existing law. On the other hand, Judicial overreach is referred to when the judicial branch starts interfering with the proper operational functioning of the other organs of the government i.e., legislative, or executive organ. It is in opposition to the principle of separation of powers and only steps up when any other organ fails to perform any function. In this research paper the main idea revolves around the validity of the Doctrine of separation of a power – focusing more on the judicial role in the administration of South Asian countries. This paper discusses in detail about the origin and evolution of both concepts followed in India, Nepal and Maldives. In justification of contention made various landmark cases and recent decisions pronounced by the respective courts of the countries are examined. To observe whether there is a THIN LINE between two concepts i.e. Judicial Activism and Judicial Overreach and how the latter overlaps the former. This paper is an attempt to do a comparative study of three legal systems, in order to analyze the contemporary situations of the above-mentioned countries. In conclusion, measures and recommendations will be suggested to limit the judicial overreach.
Keywords- Judicial Activism, Judicial Overreach, Separation of Power, South Asia, Executive, Legislature etc.
I. INTRODUCTION TO JUDICIAL ACTIVISM AND JUDICIAL OVERREACH
“The role of the judiciary in interpreting existing laws according to the needs of the times and filling in the gaps appears to be the true meaning of judicial activism.”
- Justice J. S. Verma
The judicial system has been participating actively and is no longer just a bystander. The Judiciary intervenes under the guise of judicial activism when the legislature and executive branch fail in their responsibilities. The term “Judicial activism” refers to court decisions that are informed by the judges sitting over the cases political, personal, and prudent judgment. It is a phrase used in law to describe court
decisions that are entirely or partially influenced by the political or personal views of the judge rather than by the law that is now in effect. To ensure that everything is proceeding in accordance with the Constitution, the courts look into or carefully review the conduct of other branches of the government. Such countries that have written constitutions are governed by them and the courts have the authority to invalidate or declare ultra vires laws made by the legislature. Although judges, with the exception of philosophers, are restricted by the reasonable limits of the requirement to identify their ideology, a court analysing political issues considers expressions such as the right to life and the procedure established by law. Judges engaged in the judicial examination of legislative action should be creative rather than formulaic in their interpretation. Judges cannot just apply the law to the situation at hand while interpreting the written constitution.
Then, a form of activism known as judicial overreach occurs when the court often, arbitrarily, and unjustifiably enters the legislative process, usually to obstruct the balance of power between the executive, legislature, and judiciary. In this instance, the judiciary has usurped the legislative branch's authority by enacting new legislation. Judicial overreach happens when the courts impose restrictions to put it forthrightly, judicial overreach happens when judicial activism goes too far and transforms into judicial adventurism. When the court goes beyond its jurisdiction, it runs the risk of interfering with the duties of the legislative and executive arms of the government. This was once thought to be necessary to address the shortcomings of the legislative and the executive's indiscretions. But it has now advanced to the point where the division of powers principle, which ought to be viewed as a part of the Constitution's fundamental design, is being questioned.
1.1 ORIGIN OF JUDICIAL ACTIVISM
The judicial review procedure in the United Kingdom gave rise to the doctrine of judicial activism. An unwritten constitution that allows judicial activism is the British Constitution. The unwritten constitution gave rise to the prospect of judicial review under Stuart's rule (1603–1688), which gave birth to judicial activism.
Justice Edward Coke introduced the judicial review paradigm in 1610. He decided that any statute issued by parliament that is against common law or reason can be reviewed and declared void by the courts in the case of Thomas Bonham v. College of Physicians (1610). Sir Edward Coke's successor as Chief Justice of the Court of Common Pleas in 1615, Sir Henry Hobart, accepted this doctrine of judicial review and, consequently, judicial activism.
In Madbury v. Madison (1803), the US Supreme Court specifically determined that some portions of the Judiciary Act of 1801 were unconstitutional. This was the first notable decision involving the concept of judicial review. A court invalidated a piece of legislation for the first time ever in American history. Judicial review has become more common in the US ever since the Supreme Court decided that federal courts have the power to invalidate unconstitutional laws.
However, Arthur Schlesinger Jr. used the precise word "judicial activism" in his article titled "The Supreme Court: 1947," which was published in the January 1947 issue of Fortune Magazine. He coined the phrase to classify the American Supreme Court judges at the time into three categories: judicial activists, advocates of self-restraint, and judges settled in between the two categories.
With the landmark case of Brown v. Board of Education (1954), in which the US Supreme Court ruled unanimously (9-0) that racial segregation in public schools violated the Fourteenth Amendment to the Constitution, which forbids states from depriving anyone within their jurisdictions of equal protection under the law, the American judiciary also used the power of judicial review to usher in the era of judicial activism. In addition, the Supreme Court secured such rights that were expressly stated in the Constitution in the Plessy v. Fergusson (1896) case, which saw it repeal legislation that considered Black people as a separate class.
The word "judicial activism" was later employed multiple times, but the first instance of it being said in court by a judge was in the 1959 case of Theriot v. Mercer. Judge Joseph C. Hutcheson used it to counter a dissenting decision in a related case. He disapproved of judicial activism and the goals it attempted to achieve. Additionally, the usage alluded to the change in connotation that occurred in the middle of the 1950s. The phrase "judicial activism" was seen as an intrusion by certain judges.
According to Wharton's Concise Law Dictionary, judicial activism is a philosophy of judicial decision-making in which judges permit their personal views about public policy, among other factors, to guide their decisions. Adherents of this philosophy are typically said to find constitutional violations and be willing to disregard precedents. Judicial activism has been interpreted in a variety of ways by different people. Judicial Activism is a legitimate kind of judicial review, according to those who support it. Thomas Jefferson, however, refers to it as the "Despotic Power" of Federal Judges. According to V.D. Kulshrestha, the judiciary's action is referred to as judicial activism when it is charged with actively participating in the law-making process and, in effect, taking on a leading role in it.8 By stating that "In a sense, the power to interpret law is the power to make them; and the power to manipulate the interpretation process is also the power to make law." Upendra Baxi expands on this idea.
Judicial activism can be defined and interpreted in countless different ways. There have been a number of contentious rulings rendered by Supreme Court and High Court judges over the past few years that have sparked heated debate. However, it is still unclear what "Judicial Activism" actually means.
1.2 JUDICIAL OVERREACH
"We feel compelled to express these observations because we frequently encounter situations in which judges are improperly attempting to exercise executive and legislative powers. This is obviously unconstitutional, in our opinion. Judges cannot overstep their bounds and attempt to take on roles in the name of judicial activism, they are a part of another State organ. These, in our opinion, were issues that belonged solely in the legislative or executive branches. Judges can enforce laws if they already exist, but they cannot make laws or attempt to enforce them.”
In history, notable leaders have expressed their opinions about how the judiciary should work with other branches of government. These viewpoints contend that because the Supreme Court or the Judiciary is an elected entity and represents the legislative, it cannot go against its sovereign will and the desires of its people. As a result, the Court is ineligible to act as a third house in charge of correction. The only institution with the exclusive mandate to uphold the law and deliver justice to those who seek it is the court. Due to its constrained authority, it was seen as the "least dangerous branch" of the government.
But the judiciary has also had a role in defending the Constitution's principles. The existence of the rule of law and the fact that the constitution guarantees social, economic, and political justice for its residents. This raises the issue of judicial accountability about the kinds of choices made, which inadvertently conflict with judicial independence and the rule of law. The Constitution gives the judiciary the authority to administer comprehensive justice in each matter that is brought before it. This topic raises many issues, including whether the judiciary over these respective countries has been active, how much, and under what circumstances? These questions remain unresolved to this day. When does overreach allow for a boundary to be drawn?
The paper makes an attempt to answer some of the problems raised above by highlighting the evolving situation and the perspectives of the three organs. It discusses the nature of certain significant cases currently before the legislative and judicial organ of the South Asian Countries.
II. JUDICIAL ACTIVISM AND JUDICIAL OVERREACH: COMPARATIVE STUDY
2.1. INDIA
In 1893, Justice Mehmood of the Allahabad High Court made a dissenting decision that helped plant the seeds of Judicial activism in India, marking the beginning of judicial activism. In a case where an undertrial prisoner couldn't afford legal aid. He criticised the provision that appeals should be rejected merely on the grounds that the appellant cannot afford to pay for the translation and publishing of the record in English. This amounted to some sort of activism intended to support the undertrials who had been gravely injured. J. Mahmood was made to resign for employing these strategies in court, even if it didn't sit well with the English justices sitting on the bench.
When the courts have the authority to examine a state action, judicial activism occurs. The higher judiciary in India has the authority to declare any legislative, executive, or administrative action void if it is in violation of the Constitution under the provisions of Article 13 read with Articles 32 and 226 of the Indian Constitution. The Indian Constitution's fundamental framework includes the ability for judicial review. Every person has the right, under Article 32 of the Indian Constitution, to apply directly to the Supreme Court of India for the enforcement of his or her fundamental rights. The Supreme Court is given the authority to issue any order or writ for the enforcement of any basic right under Article 32. The High Courts in India have the authority to issue any suitable order or writ for the enforcement of basic rights and other legal rights under Article 226 of the Indian Constitution. In this situation, the High Court's Article 226 jurisdiction appears to be more expansive than the Supreme Court's Article 32 power.
In the landmark case of Fertilizer Corporation Kamgar Union v. Union of India (1981), the Supreme Court ruled that the Supreme Court's authority under Article 32 is a fundamental component of the Indian Constitution's basic framework because "it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated." Not even in times of emergency can it be discontinued. A private person may also be subject to an appropriate writ or order under Article 32 for the implementation of Articles 17, 23, and 24.15 Once more, the higher judiciary established the curative petition in order to stop abuse of the legal system or correct egregious injustices. It is also maintainable when the natural justice norms are broken. The Supreme Court's three senior judges should sit on the bench reviewing curative petitions, the top court said in the Rupa Hura case in 2002.
Article 142 of the Indian Constitution is one of the most significant constitutional clauses providing the Supreme Court tremendous power. This clause gives the Supreme Court the authority to issue the proper decision or order necessary to fully uphold the law in each pending case that comes before it. However, judicial legislation only takes place where there is a gap in the law on the relevant subject. Until the Parliament passes suitable legislation on the matter, the Supreme Court's directives or rulings made in accordance with Article 142 would be in effect. It indicates that the court is aware that only the Parliament is the proper legislative body. Because Parliament has more resources than the Supreme Court, it can pass appropriate legislation on the topic.
In Vishaka v. State of Rajasthan, the Supreme Court stated that "we lay down the guidelines and norms specified herein for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose, to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places." It is further stressed that this would be treated as the law declared by this Court under Article 141 of the Constitution. This is being done in the exercise of the power afforded under Article 32 of the Constitution for enforcement of the fundamental rights.
2.1.1. EVOLUTION OF JUDICIAL ACTIVISM IN INDIA
The Supreme Court decisions listed below shed light on how judicial activism evolved in independent India. The Supreme Court operated as a technocratic court throughout the reign and supremacy of British courts, but it eventually started to adopt an activist approach. A.K. Gopalan v. The State of Madras (1950), which involved a writ filed to ascertain if detention without trial violated Article 14, 19, 21, and 22 of the Constitution, was the first significant case in this area. According to the Supreme Court, judicial review is authorized by the written Constitution. Despite the challenge's failure, it did usher in a new tendency in law that became clear in the years that followed.
2.1.1.A. FREEDOM OF PRESS
The government attempted to control the number of pages in connection to the price of the newspaper in Sakal Newspapers Pvt. Ltd. v. Union of India (1962) in compliance with the Newspaper Act of 1956 and order of 1960. The Supreme Court concluded that because newspapers provided a venue for the exchange of ideas and information, they could not be subject to the same laws as other enterprises. The Constitution's Article 19(1)(a) safeguards for free speech were expanded by this ruling.
2.1.1.B. RESERVATION POLICY
The Supreme Court argued that economic backwardness was the main factor contributing to social backwardness in the case of Balaji v. State of Mysore (1963). Caste should not be used to measure backwardness, the court concluded, distinguishing caste from class. It was also determined that the reserved category's share of the total should not be greater than 50%. The subsets of Articles 15 and 16 as well as Article 14 were deemed to be mandatory. In the case of Chitralekha v. State of Mysore (1964), the court placed similar restrictions on the reservation.
2.1.1.C. DOCTRINE OF PROSPECTIVE RULING
The American judicial system is where the doctrine of prospective overruling originally originated. It states that a decision made in a particular circumstance will only have an impact on the future and will not affect choices made in the past retroactively. When addressing the constitutional validity of the 17th Amendment to the Constitution in Golaknath v. State of Punjab (1967), the Supreme Court of India invented the concept of "prospective overruling" and found that Parliament lacked the authority to amend Part III of the Constitution or to restrict any of the fundamental rights.
2.1.1.D. DOCTRINE OF BASIC STRUCTURE
In Keshavananda Bharti v. State of Kerala (1973) saw the Supreme Court make a ruling that is seen as a turning point in Indian constitutional law. The theory of "fundamental structure" was created by the Court when it addressed the reach of the modifying authority granted by Article 368 of the Constitution. A 13-judge bench (decision was 7:6 in favour of the ruling) decided that although Parliament had broad authority to change the Constitution, that authority could not be used to weaken or eliminate the Constitution's fundamental principles or framework.
2.1.1.E. HABEAS CORPUS CASE
The most divisive Supreme Court ruling involving judicial activism came from the case ADM Jabalpur v. Shivkant Shukla (1976), in which Article 21 was raised. In the ADM Jabalpur case, the majority of the bench decided that in circumstances of extreme emergencies, such those that occurred between 1975 and 1977, a legal process may be developed that would allow for the taking of even human life. The decision's author, Justice Chandrachud, came under fire for writing a pro- government opinion, yet the legal theory he offered was a superb example of judicial activism.
Thus, there are three major stages that can be identified in the development of judicial activism in India:
• 1950–1970: This was the era of the traditional judiciary, which did not participate in any activism.
• 1970 to 2000: When the judiciary and judges developed the idea of judicial activism and it became well-known.
• 2000 and till up: Although judicial activism has grown and impacted many areas, it has also been plagued by judicial overreach.
There are numerous cases of judicial overreach that can be witnessed in Indian judicial system. Censorship of movie Jolly LLB 2, liquor ban on highways, cancellation of telecom licenses in 2G case, Lodha committee report on BCCI, imposition of national anthem etc.
2.2 NEPAL
Since a very long time ago, the judiciary in Nepal has adopted the practice of judicial activism. However, after the people's revolution of 1990 A.D., a multiparty democratic system of government was restored, significant activism was observed. There are, however, certain instances of judicial activism from before 1990 A.D.
2.2.1. DURING 1950 A.D.
The judiciary was still known as the "Pradhan Nyayalaya" in the early years of 1950. With the King, the Council of Ministers, political parties, and others, it was in conflict. But then-Pradhan Nyayalaya Chief Justice Hari Prasad mentioned in a case that the Civil Liberties Act of 2006, the Interim Government Act of 1951, and the Supreme Court were established to refute the notion that there was no constitutional system and that the government could be run by executive ordinance. He objected to the King's right to request that the Supreme Court reconsider its rulings.
2.2.2. DURING PANCHAYAT REGIME:
Political incompetence is a defining feature of the Panchayet Regime. Therefore, in practise, there was no issue with the judiciary's independence. However, a significant case of judicial activism occurred when the Supreme Court ruled that the Rastriya Panchayat is not the highest legislative body, that the Supreme Court has the final say in how the Constitution should be interpreted, and that the Rastriya Panchayat's laws may be subject to judicial review. It upheld this conclusion on the grounds that any legislation could not be valid without King's consent.
Any person may file a petition in court if the matter is of a public nature, according to the Seventh Amendment of 2043 in the Muluki Ain in the chapter of the Court Management in No. 10 during the Panchayat Regime. This amendment, which stated that anyone may file a petition on a matter of public interest unrelated to a case in which His Majesty's Government is a party, was attempted to be put into effect in the case of Chandra Bahadur Thapa v. Kathmandu Nagar Panchayat, which concerned the dispute over the Bhugol Park.
2.2.3. AFTER 1990 A.D.
The Kingdom of Nepal 2047 Constitution's adoption extended the scope of judicial activism. However, the Nepali legal system has made some clear strides toward institutionalizing the doctrine of Public Interest Litigation. Not only has the PIL concept been acknowledged, but it has also received constitutional recognition. The notion of PIL in the Nepali legal system can be seen to have begun with the passage of the Ninth Amendment to the National Civil Code (Muluki Ain) in 1986. With this amendment, it was made possible for an individual to file a lawsuit about issues of public interest. It was inevitable that the legal community in Nepal would be impacted by the PIL movement in other jurisdictions, particularly in neighbouring India. The novel PIL technique needed to be given constitutional validity, according to the 1990 constitution-drafting group, which was primarily composed of lawyers and was chaired by sitting Supreme Court Judge Vishwa Nath Upadhaya. In contrast to other nations where the justices had to exhibit activism in order to investigate a judicial basis for Public Interest Litigation within their constitutional or legal framework, the 1990 constitution specifically designated a role for the Supreme Court to hear PIL petitions in cases of public interest. The Supreme Court of Nepal has extra-ordinary jurisdiction, which is codified in Article 88(2), and is specifically designed to hear PIL petitions in cases of public interest. The article gave the Supreme Court the authority to issue any necessary or suitable orders for the enforcement of such a right as well as for the resolution of any constitutional or legal questions associated with any dispute of public interest or concern. This Article 88(2) provision was essentially transplanted into the current Interim Constitution of Nepal 2063's Article 107(2) from the 2047 Constitution. In years that followed, the apex court was inundated with numerous PIL petitions involving a variety of issues relating to fundamental freedoms, equality, untouchability, gender discrimination, environmental protection, etc.
The promulgation of the first democratic constitution of Nepal in 1990 sparked the democratic aspirations and kindled the rights awareness of the Nepali people to such an unprecedented level. The Supreme Court of Nepal has occasionally also framed social issues for the purpose of public discourse, according to some PIL decisions made over the years, and has frequently preferred the "modus operandi" of issuing directives to the government to make the necessary arrangements or enact suitable legislation. The Supreme Court of Nepal's rulings on its landmark decisions in various instances show how Public Interest Litigation is used in light of Articles 88(2) of the Constitution of the Kingdom of Nepal 2063 and 107(2) of the Interim Constitution of Nepal 2063. Following are some of the significant choices:
A. Radheshyam Adhikari v. Secretariat of the Council of Ministers and Others (NKP 810 (2048))
One of the most significant leading cases, sometimes known as the "Ambassador's Appointment Case," is this one. It was the first instance in which the idea of a public interest and locus standi—the legal basis for asking a court to enforce a public interest—were discussed. In this case, the Supreme Court held that a dispute involving the collective rights or concerns of the general public or any class of individuals qualifies as a matter of public interest or concern. Any disagreement must be founded in constitutional law in order to be brought before the Supreme Court as a matter of public interest. The petitioner must also persuade the court that they are qualified to properly represent the parties concerned with the public interest or concern at issue.
B. Surya Prasad Sharma Dhungel v. Godawari Marbel Industries Pvt. Ltd (NKP 169 (2052))
Since this decision expanded the definition of the right to life to include the right to a clean and healthy environment, it is generally accepted that this case was the catalyst for the development of PIL in Nepal. The petitioner demanded enforcement of the public's right to live in a healthy environment and contested environmental contamination and degradation brought on by the defendant industry. The right to a clean and healthy environment is unquestionably included into the right to life, the Supreme Court decided, even though it did not provide the petitioner with any specific relief. Instead, it expanded the meaning of the fundamental right to life. Additionally, the Supreme Court ordered the government to pass the appropriate environmental protection laws.
C. Advocate Meera Dhungana V. HMG and Others (Writ No. 55 of the Year 2058 B.S.)
It is one of the most well-known and significant cases, sometimes referred to as the "marital rape" case. The Supreme Court determined that the writ petition submitted in accordance with Article 88(1) represents all married women and raises issues related to married women's rights and general interest, making it a matter of public concern. It is a notable PIL case that not only thoroughly discusses the idea and philosophy of PILs but also criticises the traditional view of male dominance in society and makes significant contributions to restoring the honour and dignity of women.
D. Bal Krishna Neupane v. PM Girija Prasad Koirala and Others (NKP. 77 (2054))
The court upheld the petitioner's locus standi to use Article 88(2) as a means of entry into court to request information from the government about matters involving the nation's rights and obligations and to obtain redress if anything is done in violation of the constitution. In reversing its former stance, the Supreme Court ruled that each citizen has a "meaningful relationship" with the economic growth of his or her nation and the environment, and that it is not improper for a citizen to express interest in what kind of treaty, agreement, or understanding his or her government has reached with a foreign nation regarding the exploitation of such natural resources.
Judicial Activism would always be regarded as a reliable tool for the defence and advancement of common people's fundamental rights, particularly those of the oppressed and the underprivileged, as well as for the development of a just and egalitarian social structure. The courts should therefore ensure that their process is not misused by outsiders with personal or political agendas in order to impede, harm, or frustrate the government's legitimate policies or development projects or to further their own political or personal goals. The court must be careful not to go beyond the bounds of its judicial authority and interfere with the legislative or administrative power of other State organs.
2.3. MALDIVES
One such nation with a young democracy is the Maldives. Since 1887, the Maldives had been a protectorate of the British, till achieving independence in 1965. The Maldivian legal system combines elements of common law with Shari'ah. The preamble of the first Maldives Constitution, passed in 1932, states that the sections of the constitution governing the country's foreign relations were created in accordance with the terms of the Maldives' agreement with the British, the teachings of Islam, and the Maldivian way of life. The Maldives have made great strides toward democratization. When the Maldives' new democratic constitution was adopted in 2008, it became a reality. As previously indicated, the executive, legislative, and judicial organs of government were separated and established by this new democratic constitution. The three branches of government were not totally separated, though, under the Maldives Constitution.
The 2008 Constitution's Article 142 declares that judges are autonomous and only accountable to the law and the Constitution. Judges must take Islamic Shari'ah into consideration when making decisions in areas where the Constitution and legislation are silent. Judges are required to apply the law and the Constitution impartially and without favouritism or bias in the course of their judicial duties. Other crucial prerequisites for judicial independence are covered by the Maldives Constitution as well.
There have been more claims recently that the Supreme Court has used judicial review to restrict the authority of the parliament and carry out its duties. One could categorise it as a type of judicial activism. Not only do nascent democracies engage in judicial activism through judicial review. But when constitutional provisions are vague, governments have broad authority, and there is no system in place to make sure the judiciary stays within the bounds of the law, judicial activism thrives. Article 268 of the Maldives Constitution expresses the supremacy of the Constitution and declares that any law, judgement, or order that conflicts with the Constitution is illegal.
However, the Supreme Court is charged with weakening the supremacy of the constitution by violating its restrictions. In addition, it is asserted that the judiciary plays a more predictable political role than the erratic legislative process of parliament. The Supreme Court of Maldives has been charged in recent years with executing constitutionally required legislative functions on behalf of the parliament and restricting that body's ability to carry out its duties. It is the highest court in the Maldivian judicial system. These Supreme Court rulings have been upheld despite widespread national and international criticism of several of them. It could be expected that the parliament would be unable to efficiently carry out its constitutionally required functions in light of claims that its legally conferred powers are being restricted. In addition, it is possible to assume that the judicial branch is becoming increasingly powerful as a result of the concentration of authority there. It is evident that in its efforts to increase the proportion of women in the judiciary, the administration made modest headway.
The Supreme Court's first female justices were appointed in September 2019. In September 2020, a woman judge was appointed to the Criminal Court, and in October 2020, a woman judge was appointed to the High Court.
There have been many instances where the authority of judicial system has been violated and judges has been arrested for their conduct while in court acting as judge. The arrest of judge while in judicial capacity is raising a question on the whole working of government and power of judiciary. The straightforward violation of human rights and punishing people of state without proper hearing is also a step back from activism. So, to safeguard its authority and power judicial system overreaches the thin line demarcating the difference between activism and overreach.
III. CONCLUSION
“…the judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial ‘adhocism’ nor judicial tyranny.”
In the light of aforementioned information and the approach taken by South Asian Countries for igniting and enhancing judicial activism, it can be concluded that significant progress has been made so far. Although extraordinary jurisdiction of the judiciary has been enshrined in the Constitution of the respective countries, it is witnessed that extra major steps through which the Judicial systems have approached to define and interpret law as per the context and changes made in the international arena. Judicial activism seeks to interpret the law or the constitution from the standpoint of justice as well as law. The traditional system of judicial adjudication's limitations and technicalities are removed for the judiciary. And for a constitutional democracy to operate effectively, it is essential to recognise the difference between "judicial activism" and "judicial overreach." Its defining feature is the division of powers, and the supremacy of the constitution serves as the building block of its structure.
The judiciary's adoption of such an all-powerful mindset does not bode well for a robust democracy. The fact that the judiciary as an institution is not held to the same standards of public accountability as the legislative and the administration serves as more evidence of this. When there is social, economic, or political injustice, as well as when there is a violation of the law and the constitution, the executive's decisions are subject to judicial review. When the legislature enacts legislation that is not permitted by the constitution or the highest court investigates and corrects when it behaves arbitrarily in opposition to its fundamental principles.
The role of judicial activism in India can be traced back with the introduction of PILs and acceptance of public locus standi. With the landmark verdicts given by the Apex Court of India judicial structure has progressively improved. The capacity to initiate the changes in the legal system has widened. As per our opinion, measures to improve the working of judicial organ, the 99th Amendment Act, 2014 should be restored for appointment of judges with certain criteria and training sessions. The government should increase number of vacancies at higher as well at lower level to reduce the piling up of pending cases catalyzing the judicial activism. In addition of, the impeachment of judges is a rigid and time-consuming process which makes it difficult to question the credibility of judges. It becomes easier for judges to tamper with evidences and witnesses in the due time. It should be made simple and easily approachable.
Similarly, although it has not been going on for very long, the Nepali judiciary's activism has made impressive strides. It has significantly expanded the reach of Nepal's judicial system and demonstrated via its precedent-setting PIL rulings that the judiciary is also competent in bringing about changes to the legal systems. However, in certain ways, it is not as effective as planned at playing the role of a judicial activist. An attempt should be made to make procedure of reaching the court for public at large be easier by taking more sou moto cases. The government should appoint more women judges at both higher and lower level of system.
On the other hand, with the establishment of the three departments of government—executive, legislative, and judicial—under Maldives new democratic constitution, power was divided and allocated among them. To ensure accountability, constitutionality, and the effective coordination government of Maldives should insert provisions for protection and immunity of judges from criminal and civil proceedings while acting in their office. The provision of training judges for better working should be implemented stringently as it will strength the judicial organ giving it more authority and power. The government of Maldives has made progressive improvements in status of judiciary in last few years.
Therefore, in comparative study made among the three south Asian Countries i.e., India, Nepal, and Maldives it is found that India has achieved a milestone in judicial activism through two separate approaches that is public interest litigation and judicial review as given under Indian Constitution. Since, there is a vital role of judicial organ in governance of country, sometimes judiciary oversteps the limits of its power and judicially interfere in the working of legislative and executive. On the same hand, Nepal has also used PIL as a major weapon of judicial activism and through reference of its neighboring country it has taken few imminent decisions in protection of rights of its citizens. Whereas, Maldives being an Islamic country and governed by Shariah Law is taking more time in establishing a strong judicial organ. In recent times, the judicial structure of Maldives has improved but comparatively is still weak.
In conclusion, where there is judicial activism, there will be judicial overreach. The stringent follow of doctrine of separation of powers is not possible in reality.
REFERENCES
1. A.K. Gopalan v. The State of Madras, AIR 1950 SC 27
2. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207
3. Advocate Meera Dhungana V. HMG and Others (Writ No. 55 of the Year 2058 B.S.)
4. Bal Krishna Neupane v. PM Girija Prasad Koirala and Others (NKP. 77 (2054))
5. Balaji v. State of Mysore, 1963 AIR 649
6. Baxi,Upendra, Vol 35 “Law, Struggle and Change: An agendum for activists”, Social Action,1985
7. Brown v. Board of Education, 347 U.S. 483 (1954)
8. Chitralekha v. State of Mysore, 1964 AIR 1823
9. Divisional manager, Aravali Golf Club and Anr v. Chander Hass and Anr, 2007 (14) SCALE 1.
10. Fertilizer Corporation Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344
11. Golaknath v. State of Punjab, 1967 AIR 1643
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14. Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225
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16. L. Chandra Kumar v. Union of India, (1997) 3 S.C.C. 261
17. Madbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
18. People’s Union for Democratic Rights v Union of India, (1982) 3 S.C.C. 235
19. Plessy v. Fergusson, 163 U.S. 537 (1896)
20. Radheshyam Adhikari v. Secretariat of the Council of Ministers and Others (NKP 810 (2048))
21. Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 S.C.C. 388
22. Saha,Arpita, “Judicial Activism in India: A Necessary Evil”,2008, July Retrieved on September 20, 2014
23. Sakal Newspapers Pvt. Ltd. v. Union of India, 1962 AIR 305
24. Surya Prasad Sharma Dhungel v. Godawari Marbel Industries Pvt. Ltd (NKP 169 (2052))
25. The Maldives Attorney General’s Office to Human Rights Watch, February 20, 2022.
26. Theriot v. Mercer, 377 U.S. 152 (1964)
27. Thomas Bonham v. College of Physicians, 8 Co. Rep. 107, (1610)
28. Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011.
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