Comment on the Judicial Overreach in the context of Jharkhand Assembly Case, i.e.

Anil
Kumar Jha vs. Union of India, cited as (2005) 3 SCC 150

Courts have played a constructive and corrective role in innumerable instances and they are
highly respected by our people for that. At the same time, the dividing line between judicial
activism and judicial overreach is a thin one.

Judges cannot be legislators, as they have neither the mandate of the people nor the practical
wisdom to understand the needs of different sections of society. They are forbidden from
assuming the role of administrators and the governmental machinery cannot be run by judges
as that is not the intention of our constitution makers. So, while interpreting the provisions of
the constitution, what judiciary does often is that, it rewrites them without stating so. As a
result of which, some of the personal opinions of the judges crystallize into legal principles and
constitutional values.

So, while acting via Judicial activism, the judiciary calls upon the executive to perform its
obligations under the constitution. While this was, and will always continue to be desirable.
However, it will be against the philosophy of the constitution, if the judiciary oversteps and
takes the role of the executive and the legislature and which we may be termed as “Judicial
Overreach”.

The instance of judicial overreach which I will discuss here includes the Supreme Court’s
directions to videograph the proceedings of the Jharkhand Assembly and the appointment of a
temporary speaker and convening of a special session in the Assembly.
Arjun Munda, from the NDA Party filed the petition challenging the then governor’s action in
inviting Shibu Soren to form government despite NDA claiming the majority support. In this
case which is titled as Anil Kumar Jha vs. Union of India, cited as (2005) 3 SCC 150, the Supreme
Court issued certain directions to the Speaker of the Jharkhand Legislative Assembly in March
2005, to conduct the Assembly’s proceedings, in order to test the confidence of the house in
the government, and to keep a video recording of those proceedings. The Hon’ble SC stated in
para 6 that “its interim order would be regarded as a notice for, convening of the assembly
and, no separate orders would be required for this purpose.” So, in my view this was a clear
violation of Article 212 (2) of the Constitution of India, which prohibits any judicial intervention
in the internal business of a State legislature. In such matters, judges should exercise restraint
and leave those issues to the judgment of the branch concerned.

In my opinion, the adoption of such an all powerful attitude by the judiciary, does not at all
goes well for a healthy democracy. This can be understood by the fact that, the judiciary as an
institution is not accountable to the people, in the same way as the legislature and the
executive are. The actions of the executive are subject to judicial review, when there is social,
economic or political injustice and when the legislature makes laws beyond constitutional
bounds, the apex court examines and corrects the same.

However, when the judiciary is guilty of overreach/despotism/expansionalism, only a larger

Bench or a constitutional amendment can intervene, which questions its accountability to an
extent.

Concluding it I wish to mention a solution to the issue as derived from a lecture given by former
S.G. of India, Mr. Dipankar Gupta at the Institute of Advanced Legal Studies on July 4, 2007, he
said that - I will quote his words here -

“the task of the court should be to compel the authorities to act and to
pass appropriate executive orders, rather than substitute judicial orders,
for administrative ones. They must be told how their duties are to be
properly discharged and then commanded to do so. And for this, they
must be held accountable to the court.”
Thus it would be sort of binding order towards the executive and he
would be compelled to act upon it in an expeditious manner.

Lastly, mention the Supreme Court’s noting in Indian Drugs & Pharmaceuticals Ltd v Workmen
(2007) 1 SCC 408 stated that:
“the Supreme Court cannot arrogate to itself the powers of the executive
or legislature… There is a broad separation of powers under the
Constitution of India, and the judiciary too, must know its limits.”
"Nobody seems raised Article 361 of the Constitution which gives immunity from challenging in
court of law a decision taken by the governor and the decision which is taken on the advise of
council of ministers. In this case, governor took the decision to appoint Shibu Soren without the
advise of any council of ministers, and this was not raised before the court".
The Madras High Court has passed the following order in the course of dealing with a PIL case
which assailed an executive order regarding the free distribution of colour television sets to
eligible families in Tamil Nadu State. “The scheme is with the proven object of uplift of the
poor, needy and under privileged to render social justice, to make them aware of the worldly
happenings. A free hand should be given to the Government in spending public money for such
purposes. Courts cannot poke their nose into each and every activity of the Government,
particularly in the economic activities of the Government, under the garb of judicial review.”