Judicial Overreach


  • Judicial overreach in India refers to a situation where the judiciary, particularly the higher courts such as the Supreme Court and High Courts, is perceived to be exceeding its constitutionally defined role and interfering in the functions and decisions of the executive and legislative branches of government.
  • While judicial activism is often celebrated as a means to protect the rights and interests of the citizens, it can sometimes morph into overreach when it becomes excessive, unbridled, or ventures into policy-making.

Need for Judicial Overreach

Protection of Fundamental Rights:

  • One of the primary functions of the judiciary in India is to protect the fundamental rights of citizens guaranteed under the Constitution.
  • In cases where the legislative or executive branches fail to uphold these rights, judicial intervention can be necessary to safeguard individual liberties and ensure justice.

Safeguarding Democracy:

  • The Indian judiciary has played a crucial role in upholding the principles of democracy.
  • It has often stepped in to prevent or rectify situations where there is a perceived breakdown of democratic norms, such as cases of electoral malpractice or misuse of power by elected officials.

Checks and Balances:

  • In a democracy, the judiciary serves as one of the vital checks and balances on the powers of the executive and legislative branches.
  • When these branches overstep their boundaries or fail to act in the public interest, judicial overreach can act as a corrective measure to maintain the balance of power.

Environmental Protection:

  • India faces significant environmental challenges, including pollution, deforestation, and water scarcity.
  • In such cases, the judiciary has sometimes taken proactive measures to protect the environment and ensure the right to a clean and healthy environment for citizens.

Social Justice:

  • The Indian Constitution mandates social justice as a fundamental duty.
  • The judiciary has been instrumental in addressing issues related to social inequality, discrimination, and marginalized communities, ensuring that the principles of justice and equality are upheld.

Enforcement of Laws:

  • When there is a lack of effective enforcement of laws by the executive branch, the judiciary may step in to ensure that the rule of law is upheld.
  • This is especially important in cases of corruption, human rights violations, and other instances where the executive branch may be reluctant to act.

Advantage of Judicial Overreach

Addressing Corruption:

  • In the fight against corruption, the judicial overreach has often taken a proactive stance.
  • High-profile cases, such as those related to scams and financial irregularities, have been pursued diligently by the judiciary, leading to accountability and deterrence.

Promoting Transparency and Accountability:

  • Judicial Overreach has encouraged transparency and accountability in governance.
  • Courts have often ordered investigations into corruption allegations and have demanded transparency in government decision-making processes.

Protecting Minority Rights:

  • The judiciary has played a crucial role in safeguarding the rights of religious and ethnic minorities in India.
  • It has intervened to prevent communal violence and protect the cultural and religious rights of minority communities.

Filling Legislative Gaps:

  • In cases where the legislature has been slow to enact or update laws to address emerging issues, the judicial overreach has stepped in to fill the gap.
  • This ensures that the legal framework remains relevant and responsive to changing societal needs.

Public Awareness and Education:

  • Judicial overreach often brings important issues into the public spotlight.
  • It educates citizens about their rights and encourages civic engagement and awareness of legal and constitutional issues.

Examples of Judicial Overreach

The imposition of patriotism in the National Anthem case:

  • In the case of Shyam Narayan Chouksey v. Union of India (2016), the Supreme Court ruled that all cinema halls in India must play the National Anthem before the feature film starts and that all present in the hall must stand up to show respect. This ruling was criticized by some as being an Judicial overreach of the Court’s authority, as it interfered with the freedom of expression.

The ban on liquor: 

  • In the case of M.C. Mehta v. Union of India (2017), the Supreme Court banned the sale of liquor within 500 meters of national and state highways. This ruling was also criticized by some as being an overreach, as it interfered with the states’ powers to regulate liquor sales.

The cancellation of 2G licenses: 

  • In the case of 2G spectrum case (2012), the Supreme Court cancelled 122 telecom licenses that had been issued by the government. This ruling was highly controversial, as it led to the loss of billions of dollars in revenue for the government and telecom companies.

The Lodha Committee reforms for the BCCI: 

  • In the case of Lodha Committee v. Board of Control for Cricket in India (2016), the Supreme Court directed the Board of Control for Cricket in India (BCCI) to implement a number of reforms, including the appointment of an independent ombudsman and the removal of politicians from the board. This ruling was also controversial, as it was seen by some as an interference in the internal affairs of the BCCI.

The censorship of the film Jolly LLB II: 

  • In the case of Jolly LLB II (2017), the Bombay High Court ordered the removal of four scenes from the film Jolly LLB II, which it alleged were critical of the legal profession. This ruling was criticized by some as being an overreach of the court’s authority, as it interfered with the freedom of expression.

Kesavananda Bharati vs. State of Kerala (1973):

  • While the Kesavananda Bharati case is hailed for establishing the doctrine of basic structure, some argue that the judiciary overreached by setting limits on Parliament’s power to amend the Constitution. Critics argue that this gave the judiciary too much power to review legislative actions.

Sabarimala Temple Verdict (2018):

  • The Supreme Court’s decision to allow women of all ages to enter the Sabarimala temple in Kerala was seen by some as judicial interference in religious matters. It generated significant public debate about the balance between religious practices and individual rights.

99th Amendment to the Constitution and the NJAC bill

  • The 99th Amendment to the Constitution of India and the NJAC Bill, 2014 were enacted in 2014 to replace the collegium system of appointing judges to the Supreme Court and high courts of India.
  • The collegium system was a system whereby the Chief Justice of India (CJI) and four senior-most judges of the Supreme Court would collectively recommend the names of judges to be appointed to the Supreme Court and high courts.
  • The 99th Amendment to the Constitution established the National Judicial Appointments Commission (NJAC) as a body that would be responsible for appointing judges to the Supreme Court and high courts.
  • The NJAC would consist of the CJI, the two senior-most judges of the Supreme Court, a law minister, and a retired Supreme Court judge nominated by the President.
  • The NJAC Bill, 2014 provided for the detailed procedures for the NJAC to follow in appointing judges. The Bill also provided for a mechanism for appeals against the NJAC’s decisions.
  • The NJAC was challenged in the Supreme Court by a number of petitioners, including the Supreme Court Advocates-on-Record Association (SCAORA).
  • The petitioners argued that the NJAC violated the basic structure of the Constitution by interfering with the independence of the judiciary.
  • In a 4-1 majority judgment in 2015, the Supreme Court struck down the 99th Amendment to the Constitution and the NJAC Act, 2014.
  • The Court held that the NJAC violated the independence of the judiciary by giving the government a say in the appointment of judges. The Court also held that the NJAC was not an independent body, as it was dominated by the government.
  • The decision of the Supreme Court to strike down the NJAC has been criticized by some, who argue that it has weakened the judiciary and made it more susceptible to political interference.
  • However, others have welcomed the decision, arguing that it has helped to safeguard the independence of the judiciary.

Concerns about Judicial Overreach

Legislative Functions:

  • One of the primary concerns is that the judicial overreach, especially the Supreme Court, has sometimes taken on the role of a legislator by making policy decisions or framing guidelines that should ideally be the responsibility of the elected representatives in the legislature. This can undermine the democratic process and accountability.

Interference in Executive Matters:

  • There have been instances where the courts have interfered in executive decisions, such as appointments, transfers, and administrative policies. While judicial intervention may be necessary to protect citizens’ rights, excessive interference can disrupt the functioning of the executive branch.

Conflict of Interest:

  • There have been concerns about judges passing judgments in cases where they may have a potential conflict of interest or where they have associations with one of the parties involved. This raises questions about the impartiality of the judiciary.

Undermining Separation of Powers:

  • The principle of separation of powers is fundamental to a democratic system. Judicial overreach can blur the lines between the three branches of government, weakening the system of checks and balances.

Erosion of Accountability:

  • When the judiciary takes on roles that are traditionally the domain of the executive and legislature, it can make it challenging to hold anyone accountable for policy decisions or their outcomes, as the responsibility is diffused.

Difference between Judicial Activism and Judicial Overreach

Feature Judicial Activism Judicial Overreach
Definition The use of judicial power to protect and enforce fundamental rights and liberties, even when the law or the actions of the government are not explicitly in violation of those rights. The excessive or unwarranted interference of the judiciary in the affairs of the other branches of government, such as the legislature or the executive.
Purpose To ensure that the rights and liberties of the people are protected, even when the other branches of government are not doing so. To achieve a particular outcome, regardless of whether it is in line with the law or the constitution.
Justification The judiciary is the guardian of the constitution and the rights of the people, and it is therefore justified in intervening when the other branches of government are not fulfilling their duties. The judiciary is not supposed to interfere in the affairs of the other branches of government, and any such interference is a violation of the principle of separation of powers.
Examples The Supreme Court’s decision to strike down the law that criminalized homosexuality in India. The Supreme Court’s decision to order the government to provide free education to all children up to the age of 14.
Consequences Can lead to positive outcomes, such as the protection of fundamental rights and liberties. Can lead to negative outcomes, such as the erosion of the principle of separation of powers and the undermining of democracy.



  • Judicial overreach is a complex issue that requires a nuanced approach. While judicial activism is vital for protecting the rights of citizens and upholding the rule of law, it should not overshadow the roles of the executive and legislative branches.
  • Striking a balance between activism and restraint is essential to preserve the democratic principles upon which India’s Constitution is built.
  • In this pursuit, both the judiciary and the other branches of government must work together to ensure that the interests of the people are served while respecting the principles of separation of powers.
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