The Limits of Judicial Activism and the Charge of Overreach

Held. The directions were set aside. Creating a post is an executive or legislative function and directing it is unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain. Judges must know their limits, must not try to run the government, must have modesty and humility, and must not behave like emperors.

Why it matters here. It is the most quotable Indian statement of the limit and it comes from the Bench.

State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586, shows the debate inside a single Bench.

Facts. A writ petition in the Allahabad High Court complaining of excessive electricity bills led to directions concerning consumer forums, and on appeal the Supreme Court divided on how far a court may direct the State in matters of policy and administration.

Held. The judgment records a division within the Court: one opinion warned against the tendency in some courts of not exercising judicial restraint and crossing their limits by encroaching into the legislative or executive domain contrary to the broad separation of powers, while the other defended the court's role where a statutory scheme was being left unimplemented.

Why it matters here. It shows that the limit is contested by judges and not only by critics, which is the honest way to present it.

3. The constitutional limit

Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, states it.

Facts. Unsuccessful candidates for MBBS and BDS admission challenged the selection procedure, and the High Court gave directions to the State Government including a direction to constitute a statutory body for selections.

Held. While the legislature, the executive and the judiciary function within their own spheres, no organ can take over the functions assigned to another. A court exercising judicial review does not sit as an appellate authority over the executive and cannot advise the executive in matters of policy; its function is to see that the executive acts within the limits of its authority and that its acts do not infringe the law.

Why it matters here. Read with Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, which holds that the Constitution contemplates a broad demarcation rather than an absolute separation, it explains why the boundary is argued rather than drawn.

4. The practical limit

Orders that are not obeyed cost the court its authority. The aftermath of Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, is the recent illustration.

Facts. The petitioners challenged the exclusion of women between the ages of ten and fifty from the Sabarimala temple, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, as violating Articles 14, 15, 17, 21 and 25.

Held. By four to one the exclusion was unconstitutional; the devotees of Lord Ayyappa are not a separate religious denomination, the exclusion is not an essential religious practice, and it violates Article 25(1) and Article 21. Indu Malhotra J. dissented, holding that a court should not ordinarily interfere in matters of deep religious sentiment and that the community should determine what is essential.

Why it matters here. A decision resting on rights was met with resistance in its implementation, and the dissent had warned of exactly that. Whatever one thinks of the majority's reasoning, the case shows the practical limit: a court's writ runs as far as it is accepted.

Selectivity. Activism operates where a petition arrives, so the court's attention is distributed by who litigates rather than by where the need is greatest.

Arrears. Time spent on a policy question is time not spent on the docket. See [New Dimensions of Judicial Activism, and the Structural Challenges].

The internal correctives the Court has adopted

An answer is stronger for showing that the Court has responded to the criticism.

Discipline of public interest litigation. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402.

Facts. A public interest petition challenged the appointment of an Advocate General, and the Court used the appeal to review the whole history and working of public interest litigation and to consider its misuse.

Held. Tracing public interest litigation through its phases, the Court directed the High Courts to frame rules to encourage genuine public interest litigation and to discourage the frivolous kind, requiring verification of the petitioner's credentials, prima facie verification of the correctness of the contents, and imposition of exemplary costs on frivolous petitions.

Why it matters here. The Court narrowed the gateway it had itself opened, which is the strongest evidence that the limits are taken seriously from within.

Costs for abuse. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, dismissed a petition with costs as a personal grudge dressed as public interest.

Preference for the least intrusive order. Directing a plan rather than dictating its contents.

Provisionality. Vishaka's guidelines expressly yielded to legislation.

A worked example

A High Court, on a petition about air quality, orders that all vehicles more than ten years old be deregistered across the State within ninety days.

Democratic limit. Nobody affected was heard, and the choice between vehicle age, fuel quality and industrial emissions is a policy choice for an elected body.

Institutional limit. The court has no evidence about the number of vehicles, the cost to owners, the availability of alternatives or the effect on livelihoods.

Constitutional limit. On Asif Hameed, the court may require the executive to act within its powers; it may not choose the executive's policy.

Practical limit. An order of that scale will not be implemented, and non-implementation will be visible.

What would be within the limits. Directing the State to prepare and file, within a stated period, an air quality action plan under the existing statutory framework, with reasons for the measures chosen and a timetable, and retaining the matter for compliance.

Quick revision

1. Four limits: democratic, institutional, constitutional, practical. Beyond them, activism becomes overreach.
2. NJAC, 16 October 2015: the democratic objection at its sharpest, the Court deciding about its own power.
3. Aravali Golf Club, (2008) 1 SCC 683: creating a post is an executive function; judges must not run the government or behave like emperors.
4. Jeet S. Bisht, (2007) 6 SCC 586: the same Bench divided on where the limit lies.
5. Asif Hameed, AIR 1989 SC 1899: not an appellate authority over the executive; no advice on policy. Read with Ram Jawaya Kapur on broad demarcation.
6. Sabarimala shows the practical limit: a court's writ runs as far as it is accepted.
7. Internal correctives: Chaufal's rules for PIL, costs for abuse in Subhash Kumar, the least intrusive order, and provisionality.

Test yourself

1. Name the four limits and state each in a sentence. Democratic, because unelected and irremovable judges override bodies that are elected and removable; institutional, because a court lacks the information, the machinery and the power over resources that governing requires; constitutional, because the separation of powers assigns law-making and administration to other organs; and practical, because a court cannot implement its own orders and loses authority when they are ignored.

2. Why is Aravali Golf Club the best single authority for the institutional limit? Because it is the Court's own holding, setting aside directions that had in effect created a post, and it states the limit in terms: creating a post is an executive or legislative function, judges cannot in the name of activism take over functions belonging to another organ, and they must know their limits, not try to run the government, and not behave like emperors.

3. What does Chaufal show about how seriously the limits are taken? That they are enforced from within. The Court reviewed the whole working of the jurisdiction it had itself created and directed the High Courts to frame rules verifying the petitioner's credentials and the correctness of the contents, and imposing exemplary costs on frivolous petitions. A court narrowing its own gateway is stronger evidence than external criticism.

4. Rewrite an overreaching order so that it falls within the limits. Instead of ordering the deregistration of all vehicles over ten years old, direct the State to prepare and file within a stated period an air quality action plan under the existing statutory framework, giving reasons for the measures chosen and a timetable, and retain the matter for compliance. The statutory duty is enforced while the choice of means, and the assessment of what it costs, remains with the body that has the information and the budget.