Name – Sk

Subject – law of crime I

Topic – cheating
B.A. – L.L.B (H) Regular
Jamia Milia Islamia faculty of law

Table of content –

1. Introduction……………………………………………………………. 1
2.
 Introduction
➢ Judicial Overreach

Judicial overreach is a term commonly used when the judiciary seems to have
overstepped its mandate. As IAS aspirants, it is important to understand what the term
means and how it is different from judicial activism. There is a thin line
dividing judicial activism and judicial overreach. While the former implies the use of
judicial power to articulate and enforce what is beneficial for society in general, the
latter is when judicial activism crosses its limit. Although this is a matter of
perspective, there are many examples that are widely regarded as cases of judicial
overreach in India.

• Judicial overreach is when the judiciary starts interfering with the proper functioning
of the legislative or executive organs of the government, i.e., the judiciary crosses its
own function and enter the executive and legislative functions.
• Judicial overreach is considered undesirable in a democracy.
• It also goes against the principle of separation of powers.
• In defence of judicial overreach, the judiciary has always maintained that it stepped in
only when there were cases of executive and legislative underreach.
➢ The distinction between judicial activism and overreach is very narrow. Judicial
Overreach is what happens when judicial activism oversteps its bounds and becomes
judicial adventurism. When the court exceeds its jurisdiction, it risks interfering with
the legislative and executive branches of government's functions. Where does judicial
overreach power originate from? Nowhere. In any democracy, this is undesirable The
spirit of separation of powers is shattered by judicial overreach.
Judicial Activism Vs. Judicial Overreach
Many times people use these two words as synonyms, but we need to understand that these two
words denote different meanings. There is a very thin line between judicial activism and
judicial Overreach , because when activism crosses its limits and becomes judicial
adventurism, it takes the form of judicial overreach. Action is proactivity or Overreach is based
on individuals' perception. But the judiciary has always argued that due to the limited reach of
the legislative and executive, they have to step in and pass directions.
Examples of judicial Overreach.
Examples of judicial transgression in India The role of the judiciary has always been under
attack, primarily from the legislative branch, which feels that the courts are exceeding their
power and become an extra-constitutional law-making body. They argue that the job of the
judiciary is to interpret laws and not to make them, and that the judiciary has in many
respects overlooked legislative authority.
The imposition of patriotism in the national anthem case. The Supreme Court passed its
judgment in December 2016, in Shyam Narayan Chouksey v Union of India, which mandates
that:
1. All cinema halls in India shall play the national anthem before a feature film begins.
2. All present in the hall are obliged to stand up to show respect to the National Anthem.
3. The entry and exit gates of cinema halls shall be closed before the National Anthem is played
or sung so that no one can create any disturbance.
4. Doors can be opened after the national anthem is played or sung.
5. The National Flag should be displayed on the screen while the National Anthem is played in
the hall.

A case of Judicial Overreach

1. Neglect of Bijo Emmanuel Case - The court order does not refer to the landmark
judgment in the Bijo Emmanuel case. in this matter. In this case, three children in
Kerala were thrown out of school for not singing the national anthem because their
religion did not allow them to participate in any rituals other than praying to Jehovah.
The court ruled that there was no legal provision that compelled anyone to sing the
national anthem and ordered the school to take back three children it had expelled. The
Court has ignored situations where people cannot stand for physical, intellectual or
religious reasons because they may knowingly believe that their religious beliefs
prevent them from standing.
2. Ignoring the Uphaar Tragedy Case - In its decision to keep the entry and exit doors
closed while the national anthem is played, the Supreme Court overruled its earlier
judgment in the Uphaar tragedy case, where the court had held that no doors should be
allowed under any circumstances. needed. Cinema should be closed from outside.
3. Implementation issues - This order will face implementation issues because who will
count how many people are standing and how many are sitting while the anthem is
being played? Who will see that one cannot stand due to physical problems or any
other reason? And then, what if there is an emergency? What if someone urgently
needs to go to the toilet?
4. Prohibition of Insults to National Honor Act, 1971 - This direction goes beyond the
Prevention of Insults to National Honor Act, 1971, which says that the national anthem
cannot be played in any film, drama or show of any kind display.

Proactive Censorship in case of Jolly LLB 2

➢ In this case after the certification of the movie Jolly LLB 2 by the Central
Board for Film Certification (CBFC), a petition was filed claiming that the film
was in violation of Section 5B of the Cinematograph Act, 1952, which deals
with the prevention of the certification of films that involve defamation or
contempt of court. The Bombay High Court admitted the petition and appointed
a committee to report. The Court also gives Committee the power to suggest the
changes. After the recommendations by the committee, the Court ordered to cut
four scenes from the movie and also directed the CBFC to re-certify the film.
The reasoning given by the Court was that this was defamatory to the lawyer’s
profession.
A case of Judicial Overreach
1. Unnecessary Interference – The Cinematograph Act, 1952 which deals with the
provisions relating to the certification of films and makes it very clear that only
the Board of Film Certification has the power to censor movies and suggests the
cuts with an appeal lying to an Appellate Tribunal and under the Act, the
Government also has revisional powers. Under the Cinematograph Act, the Courts
have no power to certify, modify, or refuse certification of films.
2. Violation of Article 19(2) – The order of the court is seen as a restriction on
freedom of speech and expression as provided under Article 19(2) of the
Constitution. And as it also states that only a law can impose reasonable
restrictions. It is pertinent to note that an order of a court does not come under
the law for the purposes of Part III of the Constitution which defines fundamental
rights. Thus, it can be said that the Bombay High Court’s order mandating
excisions in Jolly LLB2 was passed without any authority.
3. The committee was Illegal – The Bombay High Court’s decision to set up a
committee was not legal and without jurisdiction. The finding of contempt on
the basis of trailer goes against a range of Supreme Court judgments that make
it clear that films have to be seen as a whole. In fact, this was the exact reason
that the Delhi High Court dismissed the PIL against Jolly LLB 1. The Committee
acts as an entirely fresh censor board, and thus reduces the statutory Board itself
to a nullity.
4. Contradicting order against the Delhi High Court Judgement – In 2013 also Jolly
LLB 1, ran into legal trouble. A PIL was initiated in the Delhi High Court,
asking the Court to direct the Film Certification Board to cancel the license.
The Court, in this case, dismissed the PIL, as they find nothing of “public
interest” in it, and also said that it would be premature as it had been filed
purely on the basis of trailers. A further appeal to the Supreme Court was also
dismissed with Justice Lodha memorably remarking, “if you don’t like it, don’t
watch it.”
Liquor Ban
➢ In the Supreme Court, ruling on a PIL which was about road safety, has banned
the sale of liquor at retail outlets, as also in hotels, restaurants, and bars, that
are within 500m of any national or state highway.
A case of Judicial Overreach
1. Unnecessary Interference – The directive principles of state policy are policy
issues which should be left to the government to decide. It is not the court’s
job to force the government to implement them. These orders are felt to be
against the spirit of separation of powers given by our constitution. It was an
administrative matter where the decision rests with state governments. The court
was not the appropriate authority for such decisions.
2. Not a fit case to use Article 142 – This was certainly not a fit case to invoke
the extraordinary powers of the court using Article 142, which talks about “the
Supreme Court in the exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in any cause or matter
 pending before it…” In the absence of any similar notification by any of the
State governments, the court extended the ban to State highways as well. It will
give rise to many problems such as how to measure 500m, how to reduce the
impact and what about places like Goa, these all matters requires executive
knowledge and requires the accountability of the governments.
3. Lacked Evidence – No empirical evidence was present before the court that by
banning liquor sale on highways will reduce the deaths. It may be noted as
found by the court from the statics of 2015, that the total percentage of accidental
deaths caused due to drunken driving, was only 4.2% as against the 44.2%
caused by over-speeding. So, there was no empirical reasoning behind the order.
4. Loss of Revenue – The order has caused much collateral damage for the
governments. For state governments, there is a massive loss in the form of
revenue collection. According to various estimates by the experts, suggests that
state governments could lose as much as Rs 50,000 crore per annum.The problem
becomes more noticeable by the fact that at least one-half, possibly twothirds,
of retail outlets, bars, restaurants, and hotels are located within a range of 500m
of national or state highways. Due to this, some states have started even
denotifying state highways as municipal roads.
5. Loss of Employment – Employment and livelihoods are expected to be badly
affected by the order. The loss in business for hotels, restaurants, and bars will
directly affect the jobs and indirectly will reduce the jobs in enterprises that
form part of their supply chains. The court had itself held the right to employment
as a basic right under Article 21. However, with the order of banning the sale
of alcohol along highways will make a loss of employment to lakhs of people.
The cancellation of telecom licenses in 2G case
➢ After the CBI registered FIR against the officials of the Department of Telecom
in 2G scam case, the Supreme Court ordered to cancel 122 telecom licenses and
spectrum allocated to eight companies. The Supreme Court held that the process
of allocation was flawed. It further directed the government to allocate national
resources through auction only.
A case of Judicial Overreach
1. Rise in Non-Performing Assets – Rising non-performing assets (NPAs) are, to
some extent, the result of the judicial decision of canceling the licenses. Courts
failed to consider their impact on the economy. Due to this the telecom sector
is till today, reeling under the after-effects of the judgment. The balance-sheets
of public sector banks are also adversely impacted as the defaults on bank loans
have increased.
2. Neglected the Role of Legislative and Executive bodies – The economic decisions
of a country are the sole domain of the legislative and executive bodies and the
court, in this case, overreached their power, which impacted the economy heavily.
Banks are not willing to lend to operators already heavily indebted and return
on investment was inadequate to repay the debts.
 3. Overlooked the consequences – The sector is in a debt of around Rs 5 lakh
crore. Telenor, Etisalat, and Sistema have exited. Vodafone and Idea are intended
to merge. Reliance is in deep trouble and has no choice except to exit.
Lodha Committee report on the Board of Control for Cricket in India
➢ The Lodha Panel was set up by the Supreme Court, following the allegations of
corruption, match-fixing and betting scandals in Indian cricket. The committee
was set up in an attempt to bring back law and order into the BCCI and the
game of cricket. The recommendations made were aimed at making the reforms
and changing the year-old elite formation of BCCI that ruled the Indian cricket
at central and state levels.
The key recommendations of the committee are:
1. BCCI should come under RTI.
2. Cricket betting should be made legal.
3. More than two consecutive terms for holding office positions should be
barred.
4. Ministers or government servants should not hold official positions in
BCCI.
5. There shall be only one post per one person.
6. Only the cricket bodies that represent states should have full membership
and voting rights in BCCI.
7. Other members of the board like All India Universities, Railway Sports
Promotion Board etc. should be given the status of associate members
without voting rights
A case of Judicial overreach
1. Lodha committee had no authority – The BCCI is registered and governed by
the Tamil Nadu Societies Act. And it also does not take money from the
government and was an was not controlled by the central or any of the state
government. The BCCI president, secretary, and other office-bearers are elected
on the basis of its bye-laws. So, the Lodha committee has no authority to make
the recommendations. The court could have instructed that the BCCI run in
accordance with the provisions of the Societies Act.
2. Not the Courts job to run Sports bodies – It is not for the court to run a sports
body or to prescribe how it should be run. The autonomy of the institutions
should be respected. It is in the best interest of sports that bodies that look
activities in these fields are given autonomy. External interference and violation
of their autonomy are not good for the developments in these areas. If they have
violated the rules or otherwise shown themselves to be unfit for their positions,
they should be removed through the proper prescribed procedure.
3. Flawed Recommendations – With the one state one vote rule, the court has
ignored the cricket history in India going back over a century has teams
participating in the Ranji Trophy from Railways and Services. They have now
been given a status of associate members with no voting rights. Sticking to its
strict provision of geographical territory criteria, teams like Bombay, Baroda,
Saurashtra, and others will now be wiped out. Implications of Judicial Overreach
 1. It destroys the spirit of the constitution as the democracy stands on the
separation of powers between the organs. 2. It creates a conflict between the
legislative and the judicial system. As the message which is conveyed with these
decisions among the people is of legislative inactivity. 3. When Judicial activism
helps in strengthening the people’s faith in the judiciary, the very act of overreach
destroys it. As it appears an act of ‘tyranny of unelected’ in a democracy where
elected representatives rule.
4. It reduces the trust of the people in public institutions which can be dangerous
for democracy.
5. It is a waste of Judicial time, which can otherwise be utilized for hearing various
important matters relating to public importance pending before the court.

Ban of Firecrackers
➢ In November 2020, during the 80th All India Presiding Officers' Conference, the
Vice-President of India called the Supreme Court's prohibition on firecrackers during
Diwali "judicial overreach." Aspirants should be aware that there are differing
perspectives on the Supreme Court's actions, thus they must learn to critically
evaluate ideas.
Outreach and overreach: On judicial intervention during COVID-19 crisis

➢ Judicial intervention in response to the Union government’s flailing response to the

health crisis has reached its apotheosis with the Supreme Court order forming a 12-
member national task force for the effective and transparent allocation of medical
oxygen to the States and Union Territories “on a scientific, rational and equitable basis”.
Making recommendations on augmenting the supply based on present and projected
demands and facilitating audits by sub-groups within each State and UT is also part of
its remit. The Court has also mandated it to review and suggest measures for ensuring
the availability of essential drugs and remedial measures to meet future emergencies
during the pandemic. In other words, the national task force has become a judicially
empowered group that may significantly guide the handling of the health crisis set off
by the second pandemic wave. Faced with proceedings in High Courts relating to the
allocation and availability of oxygen, the Centre submitted that an expert committee
may be constituted, consisting of persons drawn from public and private health-care
institutions, to facilitate a fresh assessment of the basis for the allocation. When the
Karnataka High Court ordered last week that the Centre should supply 1,200 tonnes of
medical oxygen daily to the State, the Centre rushed with a challenge to the apex court.
Solicitor General Tushar Mehta argued that if every High Court started entertaining
petitions on equitable allocation of oxygen, pandemic management would become
unworkable. The Supreme Court declined to stay the order, describing it as a careful
and calibrated one. Several High Courts and the Supreme Court are examining different
aspects of the pandemic response, including availability of beds and oxygen. The trend
did raise concerns about the judiciary encroaching on the executive domain. There is
some merit in the argument that allocation of resources based on a formula related to
the present and projected requirements of each State is indeed an executive function.
However, as the daily infection numbers and death toll have acquired frightening levels,
the constitutional courts felt obliged to take it upon themselves to protect the right to
 life and good health of the population. It cannot be forgotten that the judiciary drew
much flak last year for its initial failure to mitigate the crisis set off by the lack of
succour to millions of migrant workers. Justice D.Y. Chandrachud, who heads the
Bench hearing the suo motu proceedings, has clarified that the Court was not usurping
the executive’s role, but only wanted to facilitate a dialogue among stakeholders. As
long as this position is clear, the present intervention need not be seen as a dangerous
overreach.

Issues with Judicial Overreach

a) It contradicts the spirit of the constitution because democracy is based on the

division of powers among the organs.
b) It creates a divide between the legislative and judicial branches of government.
c) It erodes people's faith in government institutions, which is potentially
disastrous for democracy.
d) Unelected judges play a central role in day-to-day decision-making, resulting in
the tyranny of the unelected.
e) Allowing all PILs to be heard overburdens the judiciary, which could otherwise
be used to resolve pending matters in the courts.

Conclusion

➢ The powers of the Judiciary in light of both constitutional powers and activism, is being
questioned unrestrained in the modern democracy. The impact that is being created by
such remarks can be an impact formed by two major although inexorable problems.
One, being the non-absolute and undefined powers of the three pillars. Secondly, the
problem of judicial interpretations which has been scaling the decisions of Judiciary to
different levels. Such judgments have resulted in the Judiciary being questioned in
every decision it makes or every law it forms even though it is out of necessity of either
the present times or the constitution itself. This is resulting in intolerance on the part
of the policy makers as well as the lawmakers. The impact of such ambiguity on the
limits of the word ‘judicial independence’ has resulted in politicians curtailing the
independence of the Judiciary. It has resulted in resolutions being proposed by the
legislature to remove the collegium system of appointment of judges and rather appoint
a National Judicial Appointments Committee to take up the responsibility of the Chief
justice of the Country. The Judiciary on the aspect of judicial activism however
seems helpless as it seems to refute its intrusion in the executive domain cl
aiming that there seems to be a lack of ‘governance’ on part of the government,
which is resulting in activism. This seems to be a conflict that has been expanding
due to lack in administration or proper transparency by the executive and
legislature respec tively. Or in other words, the erosion of the Doctrine of
Separation of Powers with changing times. However, A few intrusions by the
court are nonetheless inevitable when the “domains” overlap each others functions.
A proper judicial intervention is one which falls within the permissible limits of 'judicial
review'. Matters relating to government policy or politics that lack substantive legal
issues are outside the purview of the judiciary. In cases where the government fails to
discharge its responsibilities like environmental degradation, sexual violence,
educational reform, corruption etc., the judiciary can take steps to secure the interests
of the citizen and issue mandamus to the public body concerned. . However, there is
 a thin line that separates judicial activism from redundancy, and courts must respect
that. What makes activism a redundancy is based on citizens' perceptions. Therefore,
it becomes difficult to regulate and there is more reason for the courts to be vigilant in
suo motu cases. It is concluded that the judiciary was not created to address the
shortcomings of the government. It is necessary for the judiciary to be impartial,
independent but most importantly restrained.
➢

References & Bibliography.

1. Judicial Activism in india by nilanjana jain.
2. constitution fundamental right and judicial activism by prash and ravi.
3. Judicial activism in india; Transgressing Borders and Enforcing Limits in India series
by sathe, sp.
4. Judicial Activism in India by sathe s.p
5. Dibakar civil services notes
6. Judicial Activism in india – A festschrift in honour of justice v.r. Krishna iyer. By Malik
lokendra.
7. The Hindu articles
8. The Indian Express artilces
9. Live mint website.
10. http://www.thehindu.com/opinion/op-ed/article-142-and-the-need-for-
judicialrestraint/article18474919.ece.
11. https://www.indiatoday.in/india/story/2g-spectrum-verdict-what-happens-now-to122-
cancelled-telecom-licenses-1113292-2017-12-21.
12. http://www.firstpost.com/firstcricket/sports-news/bcci-vs-lodha-committee-all-
youneed-to-know-about-conflict-leading-to-scs-historic-decision-3036764.html.
13. Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 129.