8.1. Difference between Judicial Activism and Judicial Overreach

Under our Constitutional scheme, the judiciary has to enforce the laws laid down by the legislature in accordance with our Constitution for which it has wide powers ranging from issuing writs of certain nature to the entertainment of petitions by special leave etc.

♤ Further, new innovations like the concept of Public Interest Litigations in recent times, has

led to an enormous expansion of unaccountable judicial power in the nation‘s politics.

♤ Thus, the exercise of judicial powers in a manner which leads to redefinition of power equations between different organs of the state and the judiciary is called as judicial activism.

♤ However, Judicial Activism doesn’t necessary mean that judiciary is inclined to expand its

powers. It is more about the positive role played by the judiciary owing to the factors like a

near collapse of responsible government, a legislative vacuum due to coalition governments and public confidence in the judiciary.

♤ Judicial Activism when overtly exercised results in usurping the powers of the Executive or the Legislature, which are the other two important organs of governance and is called as Judicial Overreach.

♤ The power to legislate is squarely conferred on the Legislature by the Constitution. No such legislative power is given to the Courts by the Constitution. Judicial Activism cannot be used for filling up the lacunae in Legislation or for providing rights or creating liabilities not provided by the Legislation.