The want to write this piece started a few days back while reading an article titled “A new Judicial Device for ‘complete justice’”, which talked about the role of the judiciary, especially the Supreme Court to provide criminal justice to litigants. Consequently, I saw a few videos on related issues during breakfast, as it’s always good to have a few more opinions. In the afternoon during lunch, as the YouTube algorithm works, it suggested me a debate show on a news channel, where the panel members were arguing over a Supreme Court justice’s remark in Nupur Sharma’s case. Then at dinner, I searched “judicial decision” in Google news (by that time I had made up my mind to write, otherwise I would have Netflixed), and ended my day reading two other articles, once titled “An independent, impartial and fair judicial system is essential for a free and fair democracy-Nitin Gadkari” and another “How the abortion ruling may affect judicial confirmations” (in reference to overruling of Roe v. Wade decision by US Supreme Court).
Eventually, I realized that all these articles indirectly or directly referred to judicial decisions in two realms, Judicial Activism and Judicial overreach, leading to the writing of this piece. Through this article, I have tried to find answers to a few questions relating to this aspect or have at least tried coming closer to them. It went like, why a discussion of the two aspects is necessary? How both phrases can be defined? Is there a difference between them in today’s world? How has the need for activism evolved? Can a line be drawn between the two, if yes, who will and how will it be drawn? And lastly, If there is an overreach, is there a solution?
If there was a one-liner answer to this question, it would have been “Because Constitution wants it”. Indian Constitution, being the lengthiest one in the world, has beautifully assigned roles and responsibilities to every institution of the government in a very detailed manner. What we see in our constitution is not a rigid separation of power like America’s, but a system of checks and balances, upholding constitutionalism. It needs the institutions to work independently of one another, and at the same time keep a check on others. So effectively, we follow the separation of functions and not powers. This separation of function makes it necessary for the courts not to overstep their power in other’s domains, and at the same time requires them to take active steps sometimes for effective checks and balances.
Judicial activism can be defined as the philosophy behind judicial decisions to depart from years of precedent and draw its weight toward progressive and new social, political and economic realms. Courts acting as an activist sometimes push the authority to act and at other times just direct them to follow the right course. Some instances where judicial decisions were considered as activism were Vishakha case (1997) (guidelines for sexual harassment at workplaces), Keshvananda Bharti case (1973) (laying down the basic structure doctrine), Maneka Gandhi case(1978) (expanding the scope of Article 21 to due process of law) etc. On the other hand, Judicial Overreach is often considered an extreme form of judicial activism with an arbitrary and unreasonable intervention in the domain of legislature and executive, going beyond the above mentioned doctrine of checks and balances. Some instances where judicial decisions came under the light of controversies for their alleged overreach were censorship case of Jolly LLB 2 (when a committee appointed by Bombay High Court to watch the movie and report on it was found unnecessary in few opinions as the Board Of Film Certification already existed and was vested with the power to censor), Firecracker ban case(Vice-President of India at the 80th All India Presiding Officers’ Conference in November 2020 termed the Supreme Court’s banning of firecrackers during Diwali as Judicial Overreach), invalidation of NJAC (where the collegium system was restored), Lodha committee recommendation on BCCI functioning etc.
WHO IS THE DECISION MAKER?
If this question was an objective one, I am sure “People” would have been an option, and most probably the correct one too. That is why in the above paragraph, the word, “alleged” has been used while giving instances for overreach, as there are some sections that consider decisions as such, and at the same time, others don’t. So this “decision” on judicial decisions is often made by the public opinion, media and in some instances by the judiciary itself. In SR Bomai v. Union of India (1994), Supreme Court refused to intervene citing that judicial review is not possible in a matter of political nature.
JUDICIAL ACTIVISM – HOW THE NEED AROSE?
The above discussion shows that judicial actions were indeed needed in some cases, whether it be for setting the basic structure or forming guidelines for sexual harassment at workplaces. This takes us to the question of how such situations were created which demanded actions from the court’s end in the first instance. One answer can be attributed to the asymmetry of power between three organs of government, giving the power to the judiciary to strike down the actions of the executive and laws made by the legislature. Another reason can be cited is the lackadaisical approach of other organs, which creates a vacuum in governance, requiring the courts to step in. The best example of this case can be given by the Vishakha guidelines. Another answer can be the increased use of public interest litigation since the 1980s which did away with the doctrine of locus standi and increased the demand for judicial intervention in other organs. Other factors can be the shooting up of public opinion in all forms of medium requiring action, expanding globalization and increased action of the government in the private domain.
JUDICIAL ACTIVISM TO JUDICIAL OVERREACH
Though judicial activism has done an enormous amount of good to Indian society in some cases, in a few other cases like those cited above, its power was not received well by the masses and was considered excess. The answer can be an absence of an express and enforceable mandate of separation of power in the constitution. The only mention of the term is in Article 50, which states “The State shall take steps to separate the judiciary from the executive in the public services of the State.” But as it is a part of Directive Principles, it is not enforceable in a court of law. The next important reason can be attributed to the negligence of challenges faced by legislature and executive, which are often quoted as 4Fs i.e. Fund, Function, Framework and Functionary. A case cited by many in this criterion is of cancellation of 122 telecom licenses and spectrum allocated to 8 companies in 2G case. It resulted in increased non-performing assets and the exit of many telecom players from the industry. The other reason for overreaching its realm is a lack of accountability, similar to those of legislature and executive. The opinion by many critics that the “Supreme Court" is supreme because it is final, not because it is infallible” correctly captures such a situation. All of these reasons eventually lead to the masses questioning the credibility of the judiciary and its inability to uphold the rule of law.
ENOUGH OF DISCUSSIONS- WHAT NEEDS TO BE DONE?
As a country evolves, the nuances of law also change with time, but as the Supreme Court rightly emerged with the basic structure of the Constitution, some aspects should remain unchanged on the bedrock of which other laws can grow without making any uncertainty and confusion. Following the same, judicial activism can also grow within the basic aspects of checks and balances, without disturbing the functions of other constitutional organs. It is true that in modern times, it is difficult to keep each organ of the government in a compartment, but at the same time, judicial activism only seems pertinent in the domain of legitimate judicial review. As a consequence, it must be kept in mind that it should be used only in cases when imperative and necessary, not becoming a norm, and for sure not leading to judicial overreach. Present India which is burdened with more than 4.7 crore cases needs the creative application of mind by judges in admission and interpretation of cases.
Writer Namrata is a Delhi High Court Lawyer.
At a first, the Supreme Court began live-streaming its constitution bench proceedings. On September 27, 2018, the then Chief Justice of India Dipak Misra delivered the landmark judgment on the live telecast or webcast of important proceedings in matters of constitutional importance, saying “sunlight is the best disinfectant”.
On Monday, a bench headed by Chief Justice Uday Umesh Lalit said the top court will soon have its own “platform” to live-stream its proceedings instead of having to use YouTube.
In a unanimous decision taken at a recent full court meeting headed by the CJI, the apex court decided to live-stream proceedings of all constitution bench hearings from September 27, four years after the path-breaking announcement by Justice Misra.
The apex court may live-stream proceedings through YouTube and later host them on its server, sources had said. People will be able to access the proceedings on their cell phones, laptops, and computers without any hassle.
The Supreme Court will Livestream all Constitutional Bench hearings from September 27, which means anyone can watch the proceedings in cases such as the challenges to the Citizenship Amendment Act and the revocation of special status under Article 370 to Jammu and Kashmir, and the quota to Upper Castes on an economic basis.
The new Chief Justice of India (CJI), Uday Umesh Lalit, took office, took this significant step on August 26, when proceedings from the Retd Chief Justice NV Ramana's court were livestreamed on his last day in office.
Justice UU Lalit recently presided over a full court meeting where judges unanimously decided that live-streaming should begin with constitutional cases, and could later cover all proceedings.
The Supreme Court had in 2018 ruled in favour of opening up the proceedings through livestreaming — as per citizen rights under Article 21 of the Constitution — but that remained to be implemented.
During the peak of the Covid-19 pandemic, courts functioned through video-conferencing. That led to a wider acceptance of the use of technology, though originally brought on by a lack of options during the lockdowns.
The fury of COVID-19 pandemic has "taught us to adapt, change and modernise ourselves", Chief Justice of India U U Lalit said while stressing "assimilating the advantages of technology in our lifestyle." Speaking at the inauguration of paperless courts in 30 districts in Odisha, CJI Lalit said there are many advantages of technological advancement and now a common man sitting in the remotest part of the country can have access to justice.
The online paperless courts were inaugurated in presence of Justices D Y Chandrachud and M R Shah and Orissa High Court Chief Justice S Muralidhar.
Justice D Y Chandrachud, who was also present with Justice M R Shah on the occasion, said technology is not just for the elite; it is for all those for whom the delivery of justice is intended. "Paperless courts will also save precious time for lawyers, who may soon find themselves burning less midnight oil stitching together paper-books and preparing volumes upon volumes of annexures," he said adding that paperless courts are environmentally sustainable because they will (as their name suggests) reduce the consumption of paper.
Justice Chandrachud said that it is estimated that the Indian legal system is responsible for the use of millions, if not billions, of sheets of paper in any given year. "The inauguration of paperless courts in Odisha will certainly go a long way in ensuring that this number is reduced. All the advantages that I have listed are doubly beneficial in the context of the District Courts because it is there that a lion's share of the country's litigation takes place.
Justice Chandrachud said it is imperative to recognize the existence of the digital divide and take steps to bridge this gap. "We must and will ensure that the digitization of the court process does not disadvantage the common citizens in any way. E-Sewa Kendras are being set up in the High Courts and in one District Court in each state to assist lawyers and litigants with various e-processes and we intend to ensure that within a period of one year, every single court establishment will have an e-Sewa Kendra...
"It is true that many of us may be unfamiliar with the use of technology and therefore uncomfortable with using it in court proceedings. As a former member of that group, I am happy to report that familiarizing oneself with technology is not as difficult as it may initially seem," he said.
Justice Chandrachud said while courts across the nation quickly and efficiently adapted to what we have come to term as “the new normal”, it is important to remember that reactive policy-making rarely results in the development of sustainable and bankable solutions.
Justice Shah said paperless communication in terms of cost is matchless as it reduces the expenses and made an appeal to all the stakeholders to use technology in courts. "We must rise to the occasion by adapting ourselves to the changing times. Everybody has to change with time and technology. Use of technology in courts will lead to transparency and work in furtherance of speedy administration of justice," he said.
The Varanasi district and sessions court in UP today dismissed the Anjuman Intezamia Masjid Committee’s challenge against the civil suits that questioned the Gyanvapi mosque’s title and the land surrounding it.
A few Hindu women had filed petitions seeking the right to worship Maa Shringar Gauri on the outer wall of the mosque complex located next to the Kashi Vishwanath temple in Uttar Pradesh.
The dismissal by district judge A K Vishvesh means that the civil suits will be heard in detail and an examination of evidence will follow. The judge began hearing the pleas in June. The media was not allowed to witness the proceedings.
On May 20, the Supreme Court, underlining the “complexity of the issues involved in the civil suit”, transferred the Gyanvapi dispute that was pending before the Varanasi civil judge (senior division) to the district judge.
While the Hindu side said the mosque was built on the site of a temple, the Muslim side said the mosque was built on waqf premises and that the Places of Worship Act barred changing its character.
In July, the Supreme Court said that before intervening in the matter, it would wait for the Varanasi district court’s decision on the mosque committee’s objections to the civil suits. A bench comprising Justices D Y Chandrachud, Surya Kant and P S Narasimha then adjourned the matter to October 20.
The SC bench said all issues would have to be first argued before the district court. The mosque committee challenged the survey of the Gyanvapi complex, where a Shivling was said to have been found.
The Supreme Court has observed that a cheque drawer is liable even when another person fills in the details. The observation of a two-judge bench of Justice DY Chandrachud and AS Bopanna came while allowing an appeal in a cheque bounce case, reported LiveLaw.
The court observed that the signing of a cheque could not be discredited by a handwriting expert's report that the drawer did not fill the cheque.
The accused in the case admitted to giving a blank signed cheque to a payee and was granted permission by the Delhi High Court to engage a handwriting expert to determine whether the details were in his hand.
The top court noted that the drawer who signs the cheque and gives in to the payee is presumed liable unless it is proved that the cheque was issued for the payment of a debt or discharge of liability.
For such a determination, the fact that the details in the cheque have been filled up not by the drawer but by some other person would be immaterial," the court observed.
It added that the handwriting expert's report on whether the details were filled by the drawer or had no role to the defence whether the cheque was issued towards the payment of a debt or liability.
The Supreme Court, in May this year, directed the constitution of special courts with a retired judge in five states for speedy disposal of cheque bounce cases.
Under the Negotiable Instruments Act (NI), the special courts were set up in the states of Maharashtra, Delhi, Gujarat, Uttar Pradesh and Rajasthan in view of a high number of pending cases in these states.
In light of the numerous cases that are pending in these states, a three-judge panel comprised of Justices L Nageswara Rao, BR Gavai, and S Ravindra Bhat announced that the states of Maharashtra, Delhi, Gujarat, Uttar Pradesh, and Rajasthan would establish special courts under the Negotiable Instruments Act (NI).
"We have incorporated the suggestions of the amicus with respect to the setting up of the pilot courts and we have given the timelines also. It is to begin on September 1, 2022 onwards. The secretary general of this court shall ensure that a copy of the present order is directly communicated to the registrar general of the said five high courts, which should put it before the chief justices for immediate action," the bench said.
The top court adopted the amicus curiae's recommendation that one court be established in each of the five districts where the number of cases brought under the NI Act is substantial.
The Supreme Court had previously issued a number of directives to ensure the swift resolution of cheque bounce cases across the nation.
The top court also requested that the Centre amend the law to ensure that trials in such cases are joined if they are brought against the same person within a year and are connected to the same transaction.
President Droupadi Murmu on Saturday administered the oath of office to Justice U.U. Lalit as the 49th Chief Justice of India (CJI) with effect from August 27, 2022.
The oath taking ceremony was held at the Rashtrapati Bhavan, which was attended by Prime Minister Narendra Modi, Vice President Jagdeep Dhankhar, Union Law Minister Kiren Rijiju, former Chief Justice of India N.V. Ramana, former President Ram Nath Kovind, Supreme Court Justices D.Y. Chandrachud, S. Abdul Nazeer, M.R. Shah, Dinesh Maheshwari, as well as other apex court judges and dignitaries.
Earlier this month, the Central government had issued a notification appointing Justice Lalit to the top post, following a recommendation made by former CJI Ramana, who demitted office on August 26.
On August 13, 2014, Justice Lalit was elevated to the apex court directly from the Bar. He will however, have a short tenure of as the Chief Justice as he will retire on November 8.
After late Justice S.M. Sikri, who was appointed directly from the Bar to the apex court as a judge, Justice Lalit will be the second CJI, being directly appointed from the Bar.
Justice Sikri was the 13th CJI from January 1971 to April 1973. Justice Lalit, who specialises in criminal law, was designated as a senior advocate by the Supreme Court in April 2004. He was appointed as the special public prosecutor by the top court for the CBI in all the 2G spectrum scam cases. He also worked with late Attorney General Soli Sorabjee between 1986 and 1992.
In July, during a hearing on a matter, Justice Lalit remarked that if children can go to school at 7 a.m. everyday in the morning, then why can't judges and lawyers come to court at 9 a.m. "Ideally, we should sit at 9 in the morning. I have always said that if our children can go to school at 7 in the morning, why can't we come to court at 9?"
The bench also comprising Justices S. Ravindra Bhat and Sudhanshu Dhulia then began hearing cases at 9.30 a.m. A bench headed by Justice Lalit sentenced fugitive liquor baron Vijay Mallya to four months of imprisonment along with fine of Rs 2,000 for contempt of court.
He was a part of a five-judge Constitution bench that declared the practice of triple talaq as unconstitutional.
New Chief Justice of India-designate Justice UU Lalit highlighted three areas on which he intends to work during his 74-day tenure as the head of the judiciary and said he would strive hard to ensure that at least one constitution bench is functioning in the Supreme Court throughout the year. Justice Lalit, who will become the 49th CJI on Saturday, said the other two areas are -- listing cases for hearing in the top court and mentioning urgent matters.
Speaking at a function organised by the Supreme Court Bar Association (SCBA) to bid farewell to outgoing CJI N V Ramana, Justice Lalit said he has always believed that role of the top court is to lay down law with clarity and the best possible way to do it is to have larger benches as early as possible so that the issues get clarified immediately. "So, we will strive hard to say that yes, we will always have at least one constitution bench functioning all throughout the year," he said.
Justice Lalit said one of the areas in which he intends to work is about the listing of cases before the constitution benches and matters which are specially referred to three-judge benches. On the issue of listing of matters, he said, "....I must assure you that we will strive hard to make the listing as simple, as clear, and as transparent as possible". Regarding mentioning urgent matters, Justice Lalit said he would certainly look into it.
"I will have a word with all my learned colleagues on the bench and we will certainly sort that out and very shortly, you will have a clear-cut regime where any urgent matter can freely be mentioned before the respective courts," he said.
Justice Lalit said, "I have always believed that the role of the Supreme Court is to lay down law with clarity, consistency, and the best possible way to do it is to have larger benches as early as possible, wherever the matters are referred to such benches so that the issues get clarified immediately, the matter has consistency and the people are well aware of what exactly are the contours of the peculiar positions in law."
While hailing Justice Ramana, who became the CJI on April 24 last year, Justice Lalit pointed out two "stand out" achievements, including that over 250 appointments of judges in the high courts across the country were made as a result of recommendations made by the top court collegium in the last about 14 months or so.
He said the present strength of judges in the high courts in the country is about 750. Referring to the 250 appointments in high courts, he said almost one-third of the strength is a result of the recommendations made by the collegium headed by Justice Ramana. He said there may be a time in the future that perhaps a large number of judges of the top court may be those who have been appointed during this period.
Justice Lalit said the second facet which he noticed was during the Chief Justices' and Chief Ministers' conference where Justice Ramana meticulously and very forcefully tried to persuade all the chief ministers and chief justices to concentrate on issues concerning infrastructure in the district and lower judiciary. "That was remarkable," he said.
Justice Lalit said the results of that conference are resonating now. I must tell and share with you that as a chairperson of NALSA (National Legal Services Authority), one of the projects which we are seeking to implement is to have what is called 'public defenders office or legal aid defence counsel," he said. He said they are insisting that in every district, there must be a legal aid defence counsel office which will be on the lines of a public prosecutor's office and the issue came up that the office would require some space.
Justice Lalit said with the kind of perseverance shown in the conference of the chief ministers and chief justices', in every district, the concerned states are willing to provide a minimum of 800 square feet of area to have the office of the public defender. "This is something which is because of Justice Ramana's perseverance and the issues that he took up in the chief ministers' and chief justices' conference," he said.
Referring to the three areas, in which he intends to work as the CJI, Justice Lalit said he had a word with the office bearers of the SCBA and the Supreme Court Advocates-on-Record Association earlier in the part of the day. "It is a tough time for somebody like me. Look at the popularity of my predecessor. How am I going to don that mantle from now hereafter," Justice Lalit said at the outset.
"Right at the outset, even before I assume office, I express my complete inability to match and be anywhere near this popularity," he said while adding that the achievements of Justice Ramana are well known. Justice Lalit said it was very heartening and emotional to hear some of the speeches which were given before the ceremonial bench in the morning and it was the most fitting tribute that a person can actually receive.
The Supreme Court on Friday directed the listing of pleas, which have raised the issue relating to the practice of political parties promising freebies, before a three-judge bench.
A bench headed by Chief Justice N V Ramana said it was argued before it that the 2013 judgment delivered by a two-judge bench of the apex court in the matter of S Subramaniam Balaji vs The Government of Tamil Nadu and others required reconsideration.
"Looking into the complexities of the issues involved and the prayer to overrule the judgment rendered by a two-judge bench of this court in Subramaniam Balaji, we direct listing of the set of petitions before a three-judge bench after obtaining the orders from the Chief Justice of India," the bench said.
The top court said these pleas would be listed after four weeks.
In the 2013 judgment, the apex court noted that after examining and considering the parameters laid in section 123 of the Representation of People Act, it arrived at a conclusion that the promises in the election manifesto cannot be read into section 123 for declaring it to be a corrupt practice.
Over 29 phones were examined and malware was found in five phones but there's no conclusive proof of Pegasus spyware, a Supreme Court bench led by Chief Justice NV Ramana said today, adding that the committee informed the court that the Indian government did not cooperate in its probe. "Centre has not cooperated," it said. The Supreme Court is scrutinising a report submitted by a technical committee it set up on the alleged use of Pegasus spyware to snoop on phones of politicians, activists and journalists.
The top court said the report is submitted in three parts - two reports of the technical committee and one report of the overseeing committee by a retired judge of the Supreme Court, Justice RV Raveendran.
One part of the report will be made public on the Supreme Court's website, it said. "We will be making the third part of the report by Justice Raveendran on recommendations public on our website," the CJI said, adding that the committee has asked not to publish the full report in the public domain.
Some of the petitioners sought a copy of the first two parts of the report. The CJI said the court will examine the demand. "We don't want to make any more comments without going through the complete report," Justice Ramana said.
"After tomorrow, I will also express my opinion", CJI said in a lighter vein when an advocate said he wanted to express his views. The matter was adjourned for four weeks.
This Supreme Court set up the expert committee to probe whether Indian law enforcement authorities had procured and used Pegasus after a huge political storm was set off by global headlines that the spyware from the Israeli firm NSO Group was used to target many around the world.
In India, the news portal "The Wire" claimed that more than 142 people were targeted. Forensic analysis of some of the cellphones by the Security Lab of Amnesty International had confirmed a security breach, reports said.
The alleged list included Congress's Rahul Gandhi, poll strategist Prashant Kishor, two serving Union Ministers, an ex-Election Commissioner, two registrars of the Supreme Court, an old number of a former judge, a close aide of a former Attorney General, and 40 journalists.
The government had given a statement in the parliament saying no illegal interception has been done but no discussion on the issue took place in either house. Opposition parties have repeatedly demanded a discussion on the issue.
The Supreme Court on Thursday agreed to examine a plea seeking a review of the PMLA verdict which upheld the Enforcement Directorate's powers, including those relating to arrest, and sought response from the Centre on the issue.
A bench headed by Chief Justice N V Ramana said prima facie two issues, including not providing Enforcement Case Information Report (ECIR), requires reconsideration.
The top court on Wednesday had allowed an application of Congress MP Karti Chidambaram seeking an open court hearing of his petition to review the top court's last month's verdict upholding the sweeping powers of the ED relating to arrest, investigation, and attachment of property under the PMLA Act.
In its July 27 verdict, the apex court has said that the direction under Section 8(4) for taking possession of the property in question before a formal order of confiscation is passed should be an exception and not a rule.
Section 8(4) allows the ED to take possession of the attached property at the stage of confirmation of provisional attachment made by the adjudicating authority.