Supreme Court terms ‘judicial overreach’ a violation of judges’ oath

Three-judge bench adjudicates on distinction between judicial review, judicial activism and judicial overreach


Hasnaat Malik March 05, 2021
PHOTO: AFP/FILE

The Supreme Court has ruled that when judges commit “judicial overreach” they violate their oath, in a judgment that adjudicated on the distinction between judicial review, judicial activism and judicial overreach.

A three-judge bench, led by Justice Manzoor Ahmad Malik and comprising Justice Syed Mansoor Ali Shah and Justice Aminuddin Khan, described the judicial overreach as the courts’ exercise of power outside the Constitution and the law and encroachment on the domain of legislature or the executive.

“Judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy making, thus encroaching upon the other branches of the Government and disregarding the fine line of separation of powers, upon which is pillared the very construct of constitutional democracy,” said the judgment, authored by Justice Syed Mansoor Ali Shah.

The judgment said that judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. “This is totally uncharacteristic of the role of the judiciary envisaged under the Constitution and is most undesirable in a constitutional democracy,” Justice Shah added.

The court said that such judicial leap in the dark is also known as “judicial adventurism” or “judicial imperialism,” adding: “A judge is to remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution.”

According to the judgment, the role of a constitutional judge is different from that of a king, who is free to exert power and pass orders of his choice over subjects. It added that after taking an oath to preserve, protect and defend the Constitution, a constitutional judge cannot be forgetful of the fact that he himself, is first and foremost subject to the Constitution and the law.

“When judges uncontrollably tread the path of judicial overreach, they lower the public image of the judiciary and weaken the public trust reposed in the judicial institution. In doing so they violate their oath and turn a blind eye to their constitutional role,” the ruling said.

The apex court emphasised that constitutional democracy leans heavily on the rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. It said that passing orders, which are not anchored in law and do not draw legitimacy from the Constitution, unnerve the other branches of the government and “shake the very foundations of our democracy”.

“Such exercise of judicial power by a judge passes for judicial overreach i.e., exercise of judicial power without any backing of law and clearly interfering in and encroaching on the legislative and executive domain,” the ruling elaborated.

The judgment also shed light on the distinction between judicial review, judicial activism and judicial overreach. “Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the Constitution,” it said. “Actions judged inconsistent are declared unconstitutional and, therefore, null and void.”

The judicial review, the court said, is the genus and judicial activism or judicial restraint are its sub-species. “While exercising judicial review, there comes a point when the decision rests on judicial subjectivity; which is not the personal view of a judge but his judicial approach,” it added.

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“One judge may accord greater significance to the need for change, while the other may accord greater significance to the need for certainty and status quo. Both types of judges act within the zone of law; neither invalidates the decision of another branch of the Government unless it deviates from law and is unconstitutional.”

On judicial activism and judicial restraint, the ruling said: “Activist judges (or judicial activism) are less influenced by considerations of security, preserving the status quo, and the institutional constraints. On the other hand, self-restrained judges (or judicial restraint) give significant weight to security, preserving the status quo and the institutional constraints.”

Both judicial activism and judicial self-restraint operate within the bounds of judicial legitimacy, the judgment added. “It is one thing for a judge to progressively interpret the law because of human rights considerations about which he has substantial information. It is quite another to change or ignore the law for economic or social or political reasons based on polycentric considerations beyond the judge’s expertise,” it added.

“According to Chief Justice John Marshall, judicial power is never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.”

Facts of case

The Mall Road Traders Association, had approached the constitutional jurisdiction of the high court to challenge notice dated July 16, 2018 issued by the Zonal Officer (Regulation) Metropolitan Corporation, Lahore for the removal of signboards and advertisements from their shops within 24 hours.

A single bench of the Lahore High Court (LHC), while dealing with this issue in its order on December 20, 2018 passed directions on a totally different issue, which was not even before the court, regarding wearing of helmets by motorcyclists on the Mall Road.

Without there being any dispute before it, the court examined the compliance by the motorcyclists of wearing helmets when plying their bikes on the Mall Road. The court was informed that 99% motorcyclists were now wearing helmets.

The court, while exercising suo motu powers, passed the order that the petrol pumps will not fill in the petrol tanks of the motorcyclists, who have not worn the helmets and in case any owner of the filling station is found to provide the petrol to those motorcyclists, the petrol pump will be sealed and heavy fine will be imposed.

However, the Supreme Court ruling said that in the present case, the order passed by the single bench of the LHC has no law or executive policy behind it. It is a clear example of judicial legislation and thus judicial overreach.

“High Court is not vested with any such jurisdiction under the Constitution. Needless to mention, that the impugned direction by the High Court placing a ban on motorcyclists without a helmet to purchase petrol, loses sight of the fundamental rights guaranteed to the petrol pump owners and the motorcyclists under the Constitution,” the ruling said.

“The impugned direction deprives the petrol pump owners of their business guaranteed under Article 18 of the Constitution and the motorcyclists of their right to mobility and right to livelihood guaranteed under Article 9 of the Constitution,” it added.

“The High Court, in its desire to make The Mall Road, an iconic thoroughfare, overstepped its jurisdiction, forgetting that a Judge is bound by the Constitution and the law”, the judgment further said.

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