QUE: What do you understand by judicial activism and judicial encroachment? Discuss the concerns associated with it.

• Judicial activism:

• Judicial activism is a judicial philosophy that motivates the judiciary to advocate progressive and new social policies. Under this, the Supreme Court or High Court compels the authorities to act and sometimes also directs the government, government policies and administration. Examples of judicial activism include directing the Centre to formulate a new policy to control drought, directing the Centre to set up a Bad Loan Panel.

• Judicial encroachment:

• Judicial encroachment refers to the extreme form of judicial activism where the judiciary interferes in the legislative or executive sphere in an arbitrary and unjustified manner. This is a situation where the judiciary encroaches on the role of the legislature by making laws. For example, a court’s decision to stop issuing licenses for new liquor shops on and around highways.
• In a democracy like India, various reasons are considered responsible for judicial activism as well as judicial encroachment such as asymmetry of power, public interest litigation, apathetic attitude of other organs of government and increasing awareness of rights among the people, globalization, active media, civil society organizations, growing concern among the people for the environment etc.
• The High Courts have done a lot of good for the public through judicial activism. However, in many cases the judiciary has exercised more powers which are beyond the normal bounds of judicial activism. Such judicial encroachment has given rise to the following concerns:
• Violation of the principle of separation of powers. The power conferred on the Supreme Court by Article 142 of the Constitution is extraordinary. The repeated exercise of this power is considered to be a violation of the principle of separation of powers.
• Overseeing the challenges faced by the legislature and the executive: Sometimes the judiciary passes orders without considering the fund, function, framework and functionary which restricts the work of the legislature and the executive. For example, cancellation of coal block allocation and spectrum allocation worsened the condition of the financial institutions of the country.
• Lack of accountability to the people: The judiciary as an institution is not accountable to the people like the legislature and the executive. Moreover, the judiciary also has the power to punish for ‘contempt of court’. In this way, the judiciary can escape public criticism for many of its functions.
• Threat to the credibility of the judiciary: Frequent violations in the legislative and executive branches can tarnish the image of the judiciary.

The Supreme Court has often highlighted the importance of judicial restraint. Therefore, the judiciary should exercise self-restraint and avoid acting as a super-legislature. Judicial activism is appropriate as long as it is within the ambit of judicial review. It should not result in judicial encroachment.