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 favour progressive and new social policies. Under this, the Supreme Court or the High Courts compel the authorities to act and sometimes also direct 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 there is arbitrary and unjustified interference by the judiciary in the sphere of the legislature or the executive. 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.

 Judicial Encroachment in Democracy

• In a democracy like India, various reasons are considered responsible for judicial encroachment along with judicial activism such as, asymmetry of power, public interest litigations, apathetic attitude of other organs of government and increasing awareness of rights of the people, globalization, active media, civil society organizations, increasing concern among the people for environment etc.

•  The High Courts have done a lot of good for the people through judicial activism. However, in many cases the judiciary has exercised more powers which are beyond the normal limits of judicial activism. Such judicial encroachment has given rise to the following concerns:
  
• Violation of the principle of separation of powers: The powers conferred on the Supreme Court by Article 142 of the Constitution are extraordinary. The frequent use of this power is considered a violation of the principle of separation of powers.
  
• Oversight of 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, the cancellation of coal block allocation and spectrum allocation worsened the condition of the country’s financial institutions.
• Lack of accountability to the people: The judiciary as an institution is not as accountable to the people as the legislature and the executive. In addition, the judiciary also has the power to punish for “contempt of court”. In this way, the judiciary can avoid public criticism for many of its actions. Thus, the judiciary.
  
• Threat to the credibility of the judiciary: Frequent violations in the legislative and executive spheres 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.