While judicial governance has played an important role in engendering human rights jurisprudence and infusing accountability in the functioning of government institutions, but it often turns into judicial overreach. Comment.

The separation of powers & principles of checks & balances are political doctrines established on the belief that too much power for any institution is corrupting & leads to an undesirable influence.

Why Judicial Governance:

  • Apathy by the legislature and executive is one of the prime reasons.
  • Judicial interference has led to various needed reforms in the society, such as
    • Guidelines for Euthanasia.
    • Outlawing of Triple Talaq.
    • Procedure for determining the office of profit cases.
    • Environmental concerns like “Polluter pays” & “Absolute Liability”.

Thus, in these circumstances, Judicial Activism is indeed welcome as it drives other organs out of their slumber and encourages them to act fast.

Challenges associated with Judicial Governance:

  • However, many times these events are seen by other organs as ‘tyranny of the unelected’ or ‘judicial overreach’.
  • It entails tug-of-war with Parliament passing laws to nullify the judicial pronouncements & executive repeatedly stalling implementation of the guidelines. E.g. Land reform issues in the 1950-70’s time.

Way Forward:

  • We must see Judicial Activism as warning & signal that actions are necessary.
  • As a responsible institution, the Judiciary too has been extremely restrained in its use & thus it poses no challenge to the constitutional distribution of powers.

Many NGO’s such as PUCL, CHRI & even law commission along with DRSC on Law & Justice have welcomed it. Thus, it is an important tool of executive accountability.

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