What Is The Remedy Against Legislative Or Executive Overreach?
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2020-11-30 15:58:34
About the Author
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
View all posts by this Author
Vice President Venkaiah Naidu, speaking on the theme of "harmonious relations between the legislature, the executive and the judiciary" at the All India Presiding Officers Conference at Kevadia in Gujarat a few days ago, pointed out certain cases of "judicial overreach" which he said was disrespectful to the "jurisdictional sanctity enshrined in the Constitution". Pointing out the judiciary's intervention in the banning of firecrackers on Diwali and appropriating the process of appointment of judges to itself, Naidu said that such decisions have resulted in "avoidable blurring of contours demarcated by the Constitution".
Even as Naidu spoke about these judgments, the Bombay High Court slammed the Brihanmumbai Municipal Corporation, and by extension the MVA government in Maharashtra, for illegally demolishing a private citizen's house in an action which it said was mala fide. One has pointed out this incident as it is the most recent example of executive overreach, so to say, against which the citizen has recourse only in a court of law. One can cite hundreds of other such instances of executive overreach.
The fathers of the Indian constitution had demarcated the contours in such a way that none of those who impacted the lives of the ordinary citizen could crush him or her under their weight. Taking the above as an example, the Shiv Sena might allege judicial overreach on part of the Bombay HC, but the fact is that the court was only pointing out that the state (or its agency) had subverted the law to cause grief to a citizen. Who else to rectify the same but the courts?
At other times, the legislature enacts laws which are blatantly unconstitutional and trample upon the rights of the citizens. Section 66A of the IT Act was one such law. Section 118A of the Kerala Police Act (mercifully withdrawn before it was hauled up for judicial scrutiny) is a recent example. Such legislative overreach is regular and it is the judiciary which provides relief to the citizens by examining these sections for constitutional validity.
It is very easy to lambast the judiciary by citing selected verdicts but the fact is all three arms of governance are guilty of overreach and each tries to subvert the jurisdictional sanctity when it suits them or if they think they can get away with it. It is here where the demarcation works and keeps the system going. The executive or the legislature might feel aggrieved with the judiciary at times but they must keep in mind that the role of the judiciary is that of being the constitutional watchdog. It has to ensure that the other two arms of government do not violate the constitution and deny the rights which the citizens are entitled to. This is not to deny that the judiciary is not guilty of overreach. But there are inbuilt checks (like appealing to a higher court, a larger bench or even a full constitutional bench of the Supreme Court for contentious matters) in the judiciary to rectify the same.
