The Judicial Overreach – Facts, Issues and Prospects for Harmonious Growth of Institutions in a Democracy – Part I

The Judicial Overreach – Facts, issues and prospects for Harmonious Growth of Institutions in a Democracy – I


The very expression overreach or engulfing means, first, that the present role, functions and postures of higher judiciary are not in line with what was envisaged in the scheme of separation of powers in the constitution defining the respective domains of the Executive, Legislature and Judiciary. Second, there is a clear hint in the word over-reach, that is, advancing into the other two domains is not desirable for the judiciary in as much as it would encumber it with new roles viewed as avoidable and unnecessary encroachment by the other two wings and might increase ‘pendency’ of old cases – presently considered at an unacceptably high level by the public. There is also a view that this trend has caused decay in the key institutions of Governance as the tendency to encroach into each others domains obstructs healthy growth of all institutions, conventions, precedents and thereby good governance and deepening of democracy. This discussion is thus divided into two parts – the first covers the ‘distinctive system of Law in India and the constitutional provisions laying down a role for the Judiciary and its practice.  As the latter is discernible only with reference to specific cases and issues currently agitating the minds of the citizens. Some of these like the controversy over the ‘collegiums system’ of appointment of judges of the Supreme Court and the High Courts and the perceived “activism”  of the National Green tribunal inflicted/evident in its recent orders as for instance its intervention in the case of Art of Living Global meet in January 2016 at the Yamuna flood plains. It would also examine the issues of “Judicial Activism” and the view that it might as well be the outcome of Citizen’s response to executive absenteeism and indifference to matters adversely affecting people’s lives and hence ‘Public Interest’. Litigation emerging as a means of redress of public grievances. A related issue is the role of the right to Information Act expanding the area of ‘public interest’ to actual implementation of Policies. Programs and Government decisions in specific cases which if not satisfactorily provided to the persons seeking such information might result in PIL (Public Interest Litigation) before the Courts. The institution of Lok Pal has been long thought as an institutional mechanism to address the issues of corruption and misgovernance and to take over some matters arising out of the RTI Act and PIL Process which would otherwise burden the law courts already laden with huge pendency of cases.

The Second part will cover the issue of decay or falling standards of institutions considered crucial for functioning of a modern democratic State, such as India. Why? Because a nation State is built not by governance or party system but by institution like the Supreme Court, the High Courts, and the Tribunals “watchdog” bodies like the Comptroller & Auditor General of India, Reserve Bank of India etc. And if these and such other institutions fail to maintain high standards, they generate instead of ‘public goods’, causes of ‘public grievances’ and ‘discontent’ which gets reflected before the courts in the form of PIL or individual cases. Logically if the volume of such cases increases beyond a certain level, it will exert a pressure in the Court’s time and resources which might distract Courts from dealing with its substantive work of disposal of Civil and Criminal cases. That would again add up to the ‘pendency of old cases’ – recognized as the major issue in delivery of Justice.


According to Fali S Nariman, the British Judicial practice of ‘Common Law’ is now inextricably intertwined with and has become an integral part of the Indian Legal System. The First Attorney General of India, M.C. Setalvad therefore chose to deliver the prestigious Hamilton Memorial Lecture in 1960 on “The Common Law of India” what is “Common Law of England and India” . Its Oxford English Dictionary meaning is “The part of the English Law that is derived from custom and judicial precedents rather than Statutes”. And, this is a very large part of the laws and procedures followed; founded on customs and usages which had become ‘Common’ to the whole realm of England as they evolved over centuries from the Norman Conquest of Britain in 1066. Thus, when a case came before the Royal Judges, they tried to ascertain the common custom and tried to apply it. The decision of one judge was then followed by others because that was the easiest thing to do, and in this way precedents and the doctrine of stare decisis (let the rules stand) were evolved, explained Munro.

Munro cites an interesting case of a custom and usage turning into a common law. Though there was written law that a father is bound to rear his children, The Courts in Britain passed orders directing such persons which thus became a law.

One of the redeeming features of ‘Common Law’ therefore is the unalterable provision for judge made law which is also central to the Indian Legal System. If one goes through any judgement or any order by any Court – from the District to the High Courts, tribunals and the Supreme Court, one cannot but notice that these orders are founded largely on precedents. That is decisions taken earlier by courts in similar cases clarifying the legal position by interpretations. In UK this branch of jurisprudence is known as the equity jurisprudence. Logically when the Common Law conflicts with a Statute, the Statute always prevails. Just recall this celebrated judgement of the Supreme Court in Shah Bano Case during Rajiv Gandhi term as the PM – a judgement made law. In this sense granting alimony to a Muslim women which was nullified by an act of Parliament, as the government did not like to give effect to the order of the Supreme Court in the teeth of opposition from a section of the Muslims and the Muslim personal Law Board to this order.


This evolutionary growth of common law took place in India, first in presidencies of Bengal, Madras and Bombay without any cautious effort on the part of the British EIC after it secured Diwani of the Mughal Subha of Bengal in 1765and when the companies Court right from the late 18th and 19th Century stated deciding civil and criminal cases on the principles of “justice, equity and good conscience” and local usages as the judges understood and interpreted. There being no codified Hindu or Mohemmadan Laws. Thus in modern India, Courts came first, Laws later as for instance the Indian Penal Code in 1860, the Code of Criminal Procedure in 1861, the Code of Civil Procedure in 1859, the Indian Evidence Act 1872 and the Indian Contract Act in 1872 and so on much later and by then the Judge made Laws based on precedents, traditions, maxims, rules and exceptions were firmly established. On this Fali S Nariman observed that the British – Indian Legal System was left untouched by the constitution of India, 1950. Article 372 of the Constitution provided that all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered, repeated or amended by a competent legislature or other competent authority. Nariman further clarified that the laws in force included not only statutory law but personal and customary law and also common law.


What is the Scope of Judge made Law?

Frankly there cannot be any limit and it is indeed one of the major planks of the legal system and the judges derived this power from the constitutional role of the judiciary to interpret the law, ‘ judicial review’ of executive actions and writ jurisdiction under article 226 of the Constitution as a custodian of protection of Fundamental Rights of the citizens from infringement by the executive, thus restraining the executive from arbitrary exercise of power in the duty of the Courts. The reported statement of CJI Justice Thakur on 26/11/16 that “ the Judiciary has every right to set aside any law made by the Parliament, if it is against the Constitution or beyond the limits granted by the statute book”. The Statesman in the 27th Nov 2016 also reported in this connection that the CJI also cautioned that no organ of the State should cross the ‘ Laxman Rekha’ and stressed that the judiciary has been given the mandate to watch that all the organs remain within their respective limits. This implies practice of ‘Judicial Restraint’ also.

Under these circumstances the Indian Constitutionalism – meaning Constitution of government and its system in India is best described as ‘Common Law Constitutionalism’ having following main features.

  • Separation of Powers
  • Independence of Judiciary
  • Judicial reviews
  • Judge made laws and the importance of precedents
  • Well defined procedure of law creating thus procedural rights as sacrosanct, the violation of which is viewed as a valid ground for setting aside an order – judicial or executive
  • Constitutional provision of Fundamental Rights and the Rule of Law
  • Codified Laws
  • Freedom of Speech, Thought and Action
  • Free press and empowerment of citizens under the Right to Information Act for transparency in State actions and participatory governance in Local bodies and local self governing institutions.
  • Role of an organized, permanent, a political Civil Service as the ‘ Agency ‘ for enforcement of Law and Policies.

This being the position of the Judiciary in the scheme of a modern state of the Westminster Model , it does not seem appropriate to use expression; commonly used in Media, like Judicial Activism or ‘ Judiciary engulfing/shadowing’ other two wings of democracy because an inert judiciary, unresponsive to public grievances arising out of poor governance or laws and policies made on narrow considerations of political expediency would have been out of time with the expectation of the Founding Fathers of the Constitution. And above all, the inter se balancing of the three wings is both the art and science of government.

Keeping this broad perspective in view, the constitutional position of the judiciary in India will be examined in the subsequent paragraphs with reference to some recent orders of the Supreme Court and NGT having a bearing on this subject.

To Be Continued…