The Thin Line Between Judicial Review and Judicial Overreach

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Judicial overreach refers to the event which is started when the judiciary unnecessarily intervenes, interferes, or interrupts the regular functioning of the other organs of the government, namely the legislative and the executive. Such an event is considered to be detrimental to the setting up of modern democracy. This also goes against the principle of separation of powers, which aims at bringing about a clear distinction between the powers of every organ of the government. To comprehensively understand what judicial overreach is, the concepts of judicial review and judicial activism need to be understood as well.

The Constitution of India provides for judicial review under Articles 32 and 226. The Supreme Court has said that judicial review is a fundamental feature[1] of the Constitution. The power of judicial review by courts, therefore, is not subject to amendment and thus has been effectively pulled out of the ambit of the power of Parliament. Judicial review is understood to be the revision and even rectification of the decision which has been given by an inferior court by a superior court. Higher courts hold the power to amend or even set aside the decisions given by a lower court. The judicial review of judicial actions is considered to be less disputed than the judicial review of executive and legislative actions. It is in the case of the latter that the judicial review is considered to be more conflicting. Within our constitutional framework, the judiciary alone has been given the responsibility of evaluating the extent to which legislative and administrative actions can be held valid in terms of the Constitution. The superior courts hold the power to declare a particular statute unconstitutional within their authority.

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The power of judicial review does not aim at making the judiciary superior to the other organs of the government within the democratic and constitutional mechanism. Rather, its core aim is to lay down the basis for the creation of a process aimed at making a system that perfectly balances the powers of all the wings. The role of the judiciary is to review executive and legislative actions and declare whether those actions are in coherence with the provisions of the Constitution. Judicial overreach is when this system of balance is compromised as a result of an action of the judiciary which encroaches upon the functions of the executive and the legislative organs, resulting in a situation that is detrimental to the democratic functioning of the government.

A comprehensive analysis of the Doctrine of Separation of Powers

Under the concept of separation of powers, the powers of the state are categorized into three different wings- the legislative, executive, and judiciary each having powers that are independent. Each of these organs has to shoulder the responsibility of making sure of the fact that they do not interrupt each other’s functioning. This is the rule which every government needs to follow to conduct the correct implementation of the law. If this principle is not put into use or is not applied correctly, then it might lead to people in power abusing and misusing the power that they hold, thereby spreading corruption within the system itself. It tries to create strict demarcation of the extent to which the government organs can exercise their power, thereby suppressing any form of potential tyranny.

Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his book “Esprit des Louis” in 1747[2]. It was he who coined this term for the first time. It was welcomed by Greece and after putting into use for the making of the Constitution of the Roman Republic.

Three different definitions concerning this principle were given by Wade and Philips, which state that one organ of the government should not try to interfere with the duties of another or should not try to exercise control over that of another[3]. They also say that the same group of people should not form more than one branch of the government. The crux of this principle is based on the ideology of Trias Politica, which brings about the delegation of powers amongst the three different departments of the government.

It is very well understood that when too much power is given to one particular authority then this simply means leaving the door open for increased maladministration to come through. This is very instrumental in restricting how power can be misused and also safeguards the rights of individuals from arbitrary rule. This ensures the fact that any chances of the development of autocracy can be done away with finally and upholds the effectiveness of the process of administration. It also helps a lot when it comes to keeping the independence of the judiciary and making sure that the principles of natural justice are given consideration while passing on judicially a matter.

The conceptuality of the principle of separation of powers in the Indian context can be examined and analyzed from several viewpoints. The Parliament is believed to have a substantial level of ability when it comes to formulating any law concerning the constraints laid down by the Constitution of India. The Supreme Court of India and the High Courts are empowered by Articles 226 and Article 227 and Articles 32 and Article 136 respectively simply in terms of judicial review. Any law implemented by the Parliament, if in contravention of the constitutional provisions, can be declared to be invalid by the judiciary especially if it is violative of the Fundamental rights.

By looking at it from this perspective, it appears that this doctrine is indeed subjected to comprehensive acceptance in India.

If the same is examined from the perspective of case laws, then the most relevant one in this regard happens to be the case of I. C Golakhnath vs the State of Punjab[4]. In this case, the Constitution managed to bring in the clear distinction between the Union and the State- two different constitutional entities. Here three major instruments come into play, namely the legislature, the executive, and the judiciary. It separates their respective powers and expects them to exercise their duties without forming any barriers to each other’s smooth functioning.

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This doctrine aims at preventing the centralization of power in one hand. For as long as recorded human history has been in existence, it has repeatedly been observed that fewer people exerting control over a greater range of powers simply leads to results that have to hold the government responsible for devastated governments for future generations. It is the application of this theory which makes sure of the fact that the government can be held accountable for the actions undertaken by it. It makes people realize that they have the power which can be exercised practically by them to hold the government answerable for its deeds. This leads to the partial or complete eradication of the vice of dictatorship, as historically, a king or monarch was never considered to be accountable to his subjects. This gives the assurance that the laws framed will be fair, following the principles of natural justice. This paves the way for the judicial bodies to conduct the administration of justice in an unprejudiced manner.

However, at the same time, for all the good that it does, the drawbacks of this doctrine exist too at the same point in time. Some scholars describe this doctrine as something undesirable.

and practically impossible. As per the words of Finer, it is of no constructive use if one were to meticulously conduct the pinpointed application of the doctrine to modern-day circumstances. The presence of a welfare state today needs to cater to several socio-economic needs of the masses, making it even more challenging when it comes to the implementation of this doctrine at the ground level. This also occasionally results in the creation of even more problems such as the lack of trust and mutual respect concerning the coordination between the various organs of the government. This can also lead to the eventual sabotaging of the ability of the government to deal with various issues. Even though this theory is fundamentally based on an assumption about the equality of powers, this thought too has its own set of inadequacies. This principle does do its bit to contribute to liberty, but that is heavily dependent upon the thought process of individuals and their perspectives. Also, it might lead to a situation where the balance of power can be disturbed. If the power of the executive’s authority is increased, then this shall result in the disruption of the balance between various organs of the government. Thus, in its most rigid form, the doctrine of separation of powers may seem undesirable and impractical, even if the system of checks and balances which it creates is necessary at some level for the smooth functioning of every democracy in any corner of the world.

Judicial Overreach in the Context of Indian Cases

Judicial overreach has been yielded by the judiciary where an overstep had been done by the judiciary while interfering in the matters of the functions which are basically of the legislative and the executive. In the context of Indian cases, one of the most important judgments was the case of Advocates on Record v. Union of India[5] where the court while laying down in its judgment said that all the constitutional provisions should be interpreted by the judiciary with the enactment done by the legislature. In another case Vineet Narain v. Union of India[6], the Supreme Court came up with a new writ called “continuing mandamus” stating that the court wanted to monitor the investigative agencies where there were some executives involved in the offenses. They created from its order the Central Vigilance Commission which was not provided in the statute. It laid down the guidelines for the appointment of chiefs in the intelligence agencies which had been mainly the functions of the executive. The question was raised on the interference made by the judiciary in the functioning of the executive and the legislative. In recent cases like the National Anthem case, namely Shyam Narayan Chouksey v. Union of India[7] here, the writ petition was filed regarding the issue of whether the national anthem should be subjected to commercial exploitation or not. The bench while giving its judgment stated that there is no “perception of individual rights” in this issue. Earlier, the court had neglected the core issue in the case of Bijoe Emmanuel v. Union of India[8] where the individuals were expelled from the school for not singing the national anthem as it was against their religious sentiments. Here, the supreme court held that individual rights have to be given priority as nothing disrespectful had been done by the individuals if they have chosen not to sing the national anthem.

Criticism of Judicial Overreach

Criticism of judicial overreach has been viewed in a negative light, even though it has put up the question of democracy about the principle of separation of powers as to what it is and why it is necessary for the functioning of democracy.

In the recent judgment of the Supreme Court in the case of Anoop Baronial v. Union of India[9], the court unanimously held under the five-judge bench on the appointment of the election commissioner.

that the head of the judiciary the Chief Justice of India will be in the consultation process in the composition of the election commission. The ruling of this case had put up the question against the doctrine which had been part of the constitution whereas under Article 32 it had been given clearly ” rights conferred by this part” which had been under Part III, but it had taken a turn to overturning the Article 324 which had been under part XV of the Constitution which deals with the elections and other aspects[10].

It had been put on a check under Dicey’s third rule of law where the judges make the constitution which has been called the predominance of legal spirit where the law is a tenet that comes with the judicial pronouncements and determines the rights of the individuals which are infringed so on taking on the principle concerning the limitation which the judiciary surpassed with its overreach. For instance, a recent statement made by the Chief Justice of India about the need to keep the judiciary within the purview of a system of checks and balances said:

“The judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function distributed to another branch is inappropriate. Judicial activism is proper when it is in the domain of legitimate judicial review. It should neither be judicial ‘adhocism’ nor judicial tyranny”.

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There had been many cases where the Supreme Court had taken on the question of Article 368 of the Constitution. This article grants the power to amend the Constitution to Parliament. Here one of the most celebrated landmark judgments comes into the picture with the case of Kesavanada Bharti vs. the State of Kerala. It was in this case that an arbitrary restraint was imposed on the Parliament by the Supreme Court about the power of amending the Constitution. Even the actual words of the article made way for the legislative branch to change the powers of the Supreme Court, and not the other way around. Therefore, it can be said that it happens to be the entitlement of Parliament to amend the Constitution in any way that it thinks to be suitable. The only restrictions which have been imposed upon the powers of the Parliament are those which have been laid down by the Constitution itself and not by the Apex Court. Any judgment by the Supreme Court which curtails the powers of the Parliament or shifts any particular power to the other branches is unlawful in itself and also means that the Court has exceeded its authority, and this is a violation of the oath of office taken by the judges.

One of the judicial statesmen Late chief justice Mohammad Ismail had said concerning the lack of accountability on the side of the judiciary:

“The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of the judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power. Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power, but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially impressive breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes even onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their wrongs.”[11]


A question at a significant point had to be raised when we talk about judicial overreach and the separation of powers. We need to understand what it is in its truest essence in the Indian context, where the constitution is a law of the land. The functions of the three organs of the state must be kept as separate as possible from one another because judicial overreach is something that shall not only disrupt the functioning of democracy but will also make it next to impossible for the judiciary to function as an organ. Firstly, an unnecessary encroachment by the judiciary upon the functions of the legislative and the executive will needlessly overburden the judiciary with the workload of these other organs. This is a major demerit of this event. This will undoubtedly result in a waste of time and resources and will not bear fruitful results as well. This will simply decelerate the speed at which the judiciary is expected to function and will create unnecessary delays in the process of timely delivery of justice to those who need it, and it is very well known that justice delayed is justice denied. Furthermore, as mentioned earlier about the demerits of the doctrine of separation of powers, an event of judicial overreach will simply breed mistrust and envy amongst various organs of the government. An attempt to interfere with the functions of the other organs will simply make the legislative and the executive look out for an opportunity where they can avenge this interference and this shall lead to a highly unwanted chain reaction comprising of events where each of these organs continuously creates barriers for the other, thereby leading to the downfall of the democratic government.

Therefore, the need for judicial activism cannot be denied, in the ambiance of any modern-day democracy. It happens to be a ray of hope for those whose rights have been wrongfully infringed by the legislative or the executive. However, on the other hand, this must not lead to an event of judicial overreach, which too is equally detrimental to the betterment of the future of the smooth functioning of any democracy, especially for a nation like India, which is the world’s largest democracy. Maintaining a balance between the two is something we should strive to achieve in the

long run, as this is the only way we can achieve a system of judicial administration that shall prove to be beneficial for future generations.

This article is authored by Mr. Kaushal Singh and Mr. Rahul Ghosh, students at University of Petroleum Energy and Studies, Dehradun.


[1] Judicial Review in India,

[2] Robert Shackleton, The Spirit of Laws | Definition, Montesquieu, Summary, Composition, & Facts, Britannica (Apr. 6, 2023),

[3] Doctrine of Separation of Powers- Functions, Effects, Defects-LAWNN, Indian Kanoon (Aug. 13, 2018),

[4] Golaknath V. State of Punjab1967 Air 1643,1967 Scr(2) 762, Legal Vidhiya (Mar. 23, 2023),

[5] Just a moment,


[7] Shyam Narayan Chouksey V. Union of India, LawFoyer (July 20, 2022),

[8] Hijab verdict: What is the Bijoe Emmanuel case the SC referred to, (Oct. 13, 2022),

[9] Election Commission Appointments, Supreme Court Observer (Oct. 23, 2018),

[10] Arvind Kumar, Supreme Court verdict on Election Commission: Decoding the Judicial Overreach, Organizer, April 11, 2023.

[11] R Shanmugasundaram, Judicial Activism and Overreach in India, Issue 72, 2007.


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