What is Power of Judicial Review? What is Judicial Overreach?

There are three organs of government:

Legislature: Makes the laws

Executive: Ensures that the laws are implemented

Judiciary: Decides on all conflicts.

The Legislature, Executive, and Judiciary together uphold the Constitution of the country.

The Constitution is the spirit of the country.

But they also have another important function. They keep a check on each other. If one organ does something that goes against the Constitution, the other organs of the government can prevent this abuse of power.

If the legislature passes a law that is against the spirit of the Constitution, the judiciary can overrule such a law. This is called the power of Judicial Review.

What is judicial overreach?

In a democracy, the legislature is elected by the people. This means that the legislature represents the will of the people.

Under Judicial Review, the judiciary annuls laws that it believes are not in accordance with the Constitution. The legislature believes that these laws represent the present reality and the will of the people.

Judicial overreach, like “violates the spirit of the Constitution” is a matter of opinion.

When the judiciary uses the power of Judicial Review and most people think that the judiciary should not have interfered with that matter, that is a case of judicial overreach.

For instance, recently, in India, the Supreme Court changed the composition of the body that selects the Election Commissioners of India. Many people thought that this was a case of judicial overreach. The Election Commissioners of India have ensured free and fair polls in India for over 75 years. This means that the selection process is fair and effective. The judiciary had no need to change this selection body. This is a case of perceived judicial overreach.

Another example is, suppose an elected government wins elections promising to change education to recognise all global boards for Grade 10. As soon as they come to power, they pass a law to recognise all global education Boards to be equal to the country’s Grade 10. (end of schooling) exams.

However, the Supreme Court overturns the legislation.

In this case, since the winning party specifically came to power with that promise, the law can be understood to represent the will of the people.

In this case, if the judiciary intervenes, and there is no specific clause in the Constitution that makes it illegal for the country to recognise the Boards of other countries, it can be seen as a case of judicial overreach.