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Judicial ‘inaction’ favours those in power


High pendency of cases, large number of vacancies and the Collegium system of appointment were among the key issues raised by Lok Sabha members on while debating a bill that seeks to bring clarity on when Supreme Court and High Court judges will get enhanced pension on attaining a certain age.


GS-II: Polity and Constitution

Dimensions of the Article:

  1. Arguments about the Judiciary put forth in Lok Sabha
  2. What does the Judiciary’s Inaction mean?
  3. Militant Majoritarianism
  4. Concerns with Judiciary’s Inaction
  5. Conclusion
  6. Back to Basics: Judicial Review Resulting in Judicial Activism
  7. Judicial Overreach

Arguments about the Judiciary put forth in Lok Sabha

  • Opening the debate on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021 Shashi Tharoor made some critical observations about “the judiciary failing to stem the tide of majoritarianism”.
  • Judiciary’s “inaction” always favours those in power as observed in examples such as the judicial challenge to the abrogation of Article 370 and Citizenship (Amendment) Act.
  • He also flagged the “insensitivity” shown by high judiciary while dealing with the plight of migrant workers during the COVID lockdown.
  • Several members also stressed on the need to increase the retirement age of high court judges and bring it on a par with the retirement age of SC judges. As of now, HC judges retire at 62 years and SC judges at 65 years of age.

What does the Judiciary’s Inaction mean?

  • In India, the problem of judicial activism has been confounded and exacerbated by the Executive’s and sometimes even the Legislature’s inactivity, leaving the people with little choice but to turn to the courts.
  • There is nothing wrong with courts intervening to protect citizens from the Executive’s excesses or inactivity, or to enforce citizens’ rights.
  • The line between judicial activism and excess is narrow. When judicial activism touches on policy areas that the Executive perceives to be solely its domain, a problem occurs.
  • In many circumstances, rather than granting mandamus to the Executive, the Supreme Court and numerous high courts have taken on Executive tasks by establishing their own systems to regularly review cases.

Militant Majoritarianism

  • India’s incapacity to respond to radical majoritarianism is becoming a catastrophe. There is no effective opposition in politics, and there is no effective opposition in society.
  • Academics and the media are frequently the focal points of such pushback in liberal democracies across the world.
  • In India, whereas the media intellectual is admired but not taken seriously, academics have never had an impact.

Concerns with Judiciary’s Inaction

  • Inaction on the part of the Judiciary nearly always benefits those in power.
  • The Supreme Court’s continuous passivity has not only allowed the government’s violations against people to go unpunished, but it has also caused some opponents to question if the court can be deemed an accomplice to the violation of constitutional rights.
  • However, many of these issues are the result of inadequate governance.
  • The independence of the Supreme Court (SC) has been questioned in recent years, with the primary issue being the government’s significant influence on judicial appointments and transfers.


The Indian judiciary has been characterized as an overly ambitious organization that really seeks to address people’s issues. The courts will have to make a calculated retreat as the government improves. It’s past time for judges to accept that there isn’t a legal remedy to every issue. But before complaining about judicial overreach, the Executive must first offer excellent governance.

Back to Basics: Judicial Review Resulting in Judicial Activism

  • However, at times Supreme Court or High Court for doing complete justice, over extends its jurisdiction into the arena or legislature and executive.
  • It is often seen that in the name of giving judgments, SC or HC end up directing the centre or state for certain commissions or omissions. This results in instances of judicial activism.
  • Judicial activismis an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and invalidate legislative or executive actions.
  • The judges use their powers to correct injustices and play an active role in shaping social policy on various issues as civil rights, protection of individual rights, environmental protection, protection of weaker sections etc.
  • Judicial Activism mainly occurs due to the non-activity of the other organs of the government.
  • The phrase judicial activismappears to have been coined by the American historian Arthur M. Schlesinger, Jr. in a 1947 article in Fortune.

Judicial Overreach

  • “Judicial overreach” occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate.
  • It means the Court has violated the doctrine of separation of powersby taking on the functions such as law enforcement, policy making or framing of laws or interfering in day to day activities of the executive.
  • This is a situation where the court goes beyond its jurisdiction as stated in the constitution and other legal documents.
  • The courts also encroach upon the role of the executive by taking executive decisions.

-Source: The Hindu

December 2023