Updated: Jul 29, 2020

[Authored by Sanyukta Agrawal, 3rd-year B.B.A LL.B (Hons.) student at Symbiosis Law School, Pune]


Judiciary, also known as the judicial system, is a system of courts that interprets and applies the law in a Country. Under the doctrine of separation of powers, the Judiciary does not make Statutory laws or enforce the law. [1] The term judiciary also refers collectively to Judges, Magistrates who form the core of a judiciary. The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organizations or fellow citizens.

The legislature, on the other hand, is a group or assembly with an authority to make laws for a Country. It transforms the demands of people into authoritative laws and statutes. Besides representing every interest and shade of opinion, the legislature acts as the national forum for expressing public opinion, public grievances and public aspirations.  The Parliament of India is the supreme legislative body of India. In India, we follow the bicameral legislation system. It comprises of the President of India and the two houses, i.e. Rajya Sabha and Lok Sabha. Articles 72 – 122 of the Indian Constitution deals with the powers, composition, procedure of the Parliament of India.

The concept of separation of powers separates the functions of the three organs in the Indian Government i.e. – The Legislature, The executive and The Judiciary. According to this concept, the State’s government is divided into branches, and each is assigned with distinct functions and powers. This ensures that the powers of one branch do not conflict or overlap the powers of the other function.

In certain circumstances, the functions of the three organs overlap. One organ will cross its

jurisdiction and interfere in the working of the other organ if there is a lack of service provided by it. Judiciary has gone overboard with its functions in order to pass certain judgments. The legislature has also defaulted in its duties at certain times which leads to such interference. This has been discussed in detail further.


Judicial activism an active role that is taken up by the Judiciary to dispense social justice.

Judicial activism generally has no constitutional backing. For example- suo moto, Public Interest Litigation. Some examples of judicial activism include the basic structure doctrine that was laid down in Keshavananda Bharti case, banning smoking in public places, the order of the Supreme Court to provide mid-day meals to children in Government schools.

In certain circumstances, the judiciary assumes the roles and functions of the legislature and this dilutes the concept of separation of powers. This becomes judicial overreach. Unrestrained and total activism on the part of the judiciary often leads to judicial overreach. When the Judiciary oversteps the powers given to it, it interferes with the functioning of legislature and executive. This is an undesirable move in a democracy. [2] What makes an action judicial overreach is generally based on individual and personal perceptions. In general, the order passed by Allahabad High Court making it compulsory for all Bureaucrats to send their children to government schools, misuse of power to punish for contempt of court is considered as judicial overreach.

The role of the Judiciary has come under attack by the legislature in recent times. They feel that the Courts are crossing their power and have become an extra-constitutional law-making body.

We have seen many instances of Judicial Overreach in recent times in India.

1. The National Anthem judgment

The National Anthem judgment passed by the Supreme Court in 2016 in Shyam Narayan

Chowkshi v. UOI. It made it mandatory that all the cinema halls should play the National

Anthem before a movie starts and everyone present in the cinema hall should stand up.

The entry and exit doors shall remain closed till the National Anthem plays. The National

Flag should be displayed on the screen while the National Anthem is being sung. This

was a case of Judicial Overreach.

The Courts neglected the Bijoe Emmanuel Case. It was a landmark case in which three

children were expelled from their school in Kerala for not singing the National Anthem because their religion did not permit them to join any rituals except in their prayers to

Jehovah. The Court ruled out that there is no legal provision that obliges anyone to sing

the anthem. In the Judgment passed for playing the National Anthem in cinema halls, the

The court ignored its own prior judgment. [3]

The Court also ignored the Uphaar tragedy case. In that case, the cinema hall caught fire

and people died of suffocation as they couldn’t leave the hall because the doors were

closed. In that case, the Court held that under no circumstances should the doors in a

cinema should be closed.

2. Proactive Censorship in case of Jolly LLB 2

In this case after the certification of the movie Jolly LLB 2 by the Central Board for Film

Certification (CBFC), a petition was filed claiming that the film was in violation of

Section 5B of the Cinematograph Act, 1952, which deals with the prevention of the

certification of films that involve defamation or contempt of court. The Bombay High

Court admitted the petition and appointed a committee to report. The Court also gives

Committee the power to suggest the changes. After the recommendations by the

committee, the Court ordered to cut four scenes from the movie and also directed the

CBFC to re-certify the film. The reasoning given by the Court was that this was

defamatory to the lawyer’s profession.

This was a case of Judicial Overreach as there was unnecessary interference by the

Courts. The Cinematograph Act, 1952 which deals with the provisions relating to the

certification of films and makes it very clear that only the Board of Film Certification has

the power to censor movies and suggests the cuts with an appeal lying to an Appellate

Tribunal and under the Act, the Government also has revisional powers. Under the

Cinematograph Act, the Courts have no power to certify, modify, or refuse certification

of films.

3. The Liquor Ban

The Supreme Court, ruling on a PIL which was about road safety, has banned the sale of

liquor at retail outlets, as also in hotels that are within 500 m of any National and State

Highway. This was again a case of judicial overreach. The Directive Principles of State

policy are policy issues that should be left to the Government to decide. It was an

administrative matter where the decision rests with State Governments.

4. The Chandigarh High Court stating how much toll should be charged at the toll plaza

This act was a judicial overreach as the High Court cannot decide the toll charges. IT is

the job of the NHAI to decide how much toll has to be charged at toll plazas.

Along with Judiciary going overboard with their functions, we have also seen that in certain

circumstances, the Legislature fails to perform its duties. It acts irresponsibly and in a reckless



Irresponsible legislature is also called lack of legislature or the failure to perform the duties that were assigned to them. The legislature has failed to perform its duties at certain times.

1. The Adhaar Card act

The Adhaar Act, 2016 was introduced in the Lok Sabha in 2016 and was passed by the

Lok Sabha. It was sent back by the Rajya Sabha with certain suggestions but the Lok

Sabha rejected those suggestions. A PIL was filed contending that the project was being

undertaken without any legislative backing. The National Identification Authority Bill,

2010 was still pending in the Rajya Sabha. They said the UIDAI cannot collect biometric

data of citizens as it would be a violation of privacy under Article 21 of the Constitution.

The Court asked the Government to clarify its stance on this issue, but the government

replied that they will continue the project. The Government did not clarify as to which

services and schemes would the adhar card be used for. Here we see that there was a lack

of legislature to clarify their stance and the method in which they proposed to use the


2. The National Investigation Agency Act

The Mumbai terror attack in 2008 was the catalyst for the enactment of the National

Investigation Agency Act. The Nirbhaya case in Delhi led to the overhaul of India’s

penal code to ensure stricter penalties for crimes against women. Both these bills were passed without effective scrutiny, as they were not referred to a Parliamentary standing

committee for evaluation. This highlighted the gap in our policy and legislative


3. Cauvery water dispute

The Supreme Court ordered the Karnataka Government to release 6000 cusecs of water to

Tamil Nadu. The Karnataka Legislative assembly unanimously went against this order

and decided to provide only drinking water to Tamil Nadu. By doing this they essentially

went against the Supreme Court order. The legislature, cannot by a bare declaration,

directly overrule, reverse or override a judicial decision.

In its reports, the National Commission to review the working of the Constitution had observed that “our legislative enactments betray clear marks of hasty drafting and absence of Parliament scrutiny from the point of view of both the implementers and the affected persons and groups”. The legislature is the most transparent government machinery in the eyes of the people and when this has so little to show for in terms of productivity due to adjournments, disruptions and protests, it casts a very negative perception towards government efficiency.


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

constitutionalism. I strongly believe that the Judiciary is going overboard with its functions. It is interfering with the functions of the Legislature. We cannot deny that the legislature is falling back in performing its duties. But judicial overreach is disrupting the separation of powers. It spoils the spirit of democracy as democracy stands on the separation of powers. It also causes conflict between the legislative and the judiciary. When Judicial activism helps in strengthening the people’s faith in the judiciary, the very act of overreach destroys it. As it appears an act of ‘tyranny of unelected’ in a democracy where elected representatives rule. [4] This reduces the trust of the public institutions which is dangerous to democracy. In many cases, courts are often ill-equipped and lack the experience to weigh the economic, environmental and political costs involved like liquor ban case. This causes an economic loss for the Nation. Sometimes when judicial activism is exercised it is done for solely selfish, political or personal reasons. It also reduces the trust that people have in the Parliament and its elected representatives as frequent signs of overreach signal at the incompetency of these representatives.

Hence, I feel that the Judiciary is crossing its powers and interfering in the legislative functions and this can cause a disturbance in the separation of powers.

[1] Robinson, N. (2014). India's Judicial Architecture. SSRN Electronic Journal.

[2] Iosrjournals.org. (2019). A Critical Analysis on Judicial Activism and Overreach. [online] Available at http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2023%20Issue8/Version-3/G2308034553.pdf [Accessed 14 Jul].


[3] Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 129 [2019].

[4] The Hindu. (2019). Article 142 and the need for judicial restraint. [online] Available at:

https://www.thehindu.com/opinion/op-ed/article-142-and-the-need-for-judicial-restraint/article18474919.ece [Accessed 14 Jul. 2019].

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