Legal basis:
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- Article 222 of the Constitution empowers the President to transfer a High Court judge from one court to another after consultation of the Chief Justice of India (CJI).
- P. Gupta v. Union of India (1981) and Supreme Court Advocates-on-Record Association (1993)– transfers should not be used as punitive measures.
Criticism:
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- It is used as a tool for punishing judges for their judgments against the ruling government.
- Uncertainty about tenure of judge will encourage pliability of judges.
- It may affect both quality and objectivity in judgment.
- Politically motivated transfers affect independence of Judiciary
- P N Bhagwati in Sankalchand case-
- Judges are not like other public servants as they hold constitutional position. So, cannot be transferred at will.
- Inconsistency and subjectivity in terms of grounds of transfer are vague.
Way forward:
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- Enhancing transparency in the transfer process
- Distinguish administrative necessity from punitive action
- Minimum tenure policy ensuring security of tenure
- A Judicial Appointments and Transfers Commission to evaluate necessity and fairness of transfers.
Judicial Activism
Case Laws on Judicial Activism:
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- Kesavananda Bharati vs State of Kerala (1973) – Established Basic Structure Doctrine, to protect fundamental features the Constitution.
- Vishaka vs State of Rajasthan (1997) – Recognized sexual harassment at the workplace as a violation of fundamental rights.
- Maneka Gandhi vs Union of India (1978) – Expanded the interpretation of Article 21.
- MC Mehta vs Union of India (1986) – Introduction of “Absolute Liability” principle for industries causing pollution.
- Union of India vs Association for Democratic Reforms (2002) – Directed Election Commission to enforce disclosure of criminal records of candidates.
Advantages
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- Ensures Justice in Governance Vacuum
- Expands Fundamental Rights
- Safeguards Constitutional Values
- Promotes Accountability
Disadvantages
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- Undermines Separation of Powers
- Increased power of Judiciary
- Lack of Accountability
- Judicial overreach resulting in policy paralysis
- Judicial absolutism
| Basis | Judicial Review | Judicial Activism |
|---|---|---|
| Definition | It is the power of courts to examine the constitutionality (Article-13) of legislative acts, executive orders, and administrative decisions. | It refers to the judicial philosophy that the courts should go beyond the law to consider broader societal implications and take an active role in ensuring justice. |
| Purpose | It allows judiciary to invalidate laws and actions that are found to be unconstitutional. | It aims to address perceived injustices and fill gaps in the law. |
| Scope | It does not extend to policy decisions unless they infringe on constitutional provisions. | It can extend to policy decisions and create new precedents. |
| Examples | • Keshavnanda Bharti case (1973): SC introduced the concept of basic structure, limiting the amending power of parliament. • Striking Section 66A of the IT Act. | • Vishaka vs State of Rajasthan (1997): SC issued guidelines for prevention of sexual harassment at workplace in absence of any specific legislation for issue. • Justice K.S. Puttaswamy case: SC recognised Right to Privacy as a fundamental right. |
Judicial Overreach
Case Laws on Judicial Overreach:
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- Aravali Golf Club vs Chander Hass (2008) – SC emphasized that judges should not take on legislative or executive roles.
- Shyam Narayan Chouksey vs Union of India (2016) – Mandated compulsory playing of the National Anthem in cinemas
- Supreme Court’s Order on Firecrackers Ban (2018) – Blanket ban on firecrackers faced criticism for overriding legislative policies.
- Liquor Ban on Highways (2016) – Ban on liquor sales within 500 meters of highways
Difference between Judicial Activism and Judicial Overreach:
| Aspect | Judicial Activism | Judicial Overreach |
|---|---|---|
| Definition | Judiciary steps in to interpret laws broadly and address policy gaps. | Judiciary exceeds its authority, interfering in legislative or executive matters. |
| Scope | Ensures justice and upholds fundamental rights. | Disrupts governance by imposing judicial will over policy matters. |
| Constitutional Validity | Constitutionally permissible if within judicial review. | Goes beyond judicial review and violates separation of powers. |
| Examples | Vishaka Case, MC Mehta Case, Kesavananda Bharati Case. | National Anthem Case, Liquor Ban Case, Aravali Golf Club Case. |
| Impact | Strengthens democracy, ensures accountability. | Weakens legislative authority, creates policy instability. |
Need for judicial restraint:
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- Judiciary is an unelected institutione. it does not represent the will of the people and is not directly responsible to the people.
- The frequent intervention in the affairs of first two organs has resulted into policy paralysis.
- For example– in C. Mehta v. Union of India (1995), the court ordered the cessation of illegal mining activities resulting in delay of projects.
- Instances of judicial overreach, where courts have shown over enthusiasm in adjudication undermining the supremacy of the constitution. Some examples include:
- Liquor ban (2017): SC ruling on PIL resulting in ban on sale of liquor within 500m of any national or state highway. It was rather an administrative matter where decision rests with state.
- Arun Gopal v. Union of India (2017): SC fixed timings of setting off fireworks during Diwali and banning those that are not environment friendly. There was no legal basis for these restrictions.
- In Aravali Golf v. Chander Hass & Anr. (2007) case, SC asked subordinate courts to exercise judicial restraint. It was held that each organ must respect the doctrine of separation of powers. The Court laid down two crucial functions of judicial restraint:
- To encourage equality among the three branches by minimizing inter-branch interference by the judiciary.
- To protect the independence of the judiciary.
- The former CJI Justice A.S. Anand, in a public lecture said that judges must exercise judicial restraint so that judicial activism does not become judicial adventurism.
- It threatens the separation of power and affects the legitimacy of the first two organs resulting into legitimacy crisis.
Judicial Despotism/Absolutism/Tyranny
Judiciary exercises excessive control, bypasses constitutional limits, and encroaches upon the powers of the legislature and executive.
Judicial evasion
Judicial evasion occurs when courts avoid ruling on critical issues, either by refusing to hear cases or by delivering ambiguous judgments.
Reasons for Judicial Evasion
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- Political sensitivity to avoid legislative confrontation
- Complexity of the issue beyond judicial expertise
- Doctrine of judicial restraint to maintain institutional balance
Case laws reflecting judicial evasion
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- Sabarimala Review Petition (2018) – SC delayed decision on review petition due to social and religious sensitivities.
- Electoral Bonds Case –Delayed hearings on validity of anonymous political donations, despite concerns of transparency and corruption.
- Article 370 Abrogation Case – Delayed hearing petitions to avoid a politically charged issue.
- Farm Laws Case (2021) – SC formed a committee Instead of deciding the constitutional validity of the laws.
Consequences
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- Denial of Justice
- Weakens Public Trust
- Encourages Executive Overreach
Way forward: Judicial balance
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- Upholding separation of powers
- Ensuring accountability
- Delivering timely judgments
- Adopting clear and consistent principles
