Judicial Overreach

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The Judicial Activism and Judicial Over-reach has always been a live subject which brings out wealth of literature, add to our learning and provoke our thoughts to delve deep as to why judicial activism has to be availed as a tool for curing the sufferings of the masses at large. It is significant to notice that in every debate on the subject, the theory of ‘Separation of Power’ of three organs of the State is necessarily discussed. The theory was given by a great French philosopher Charles Montesquieu in his 11th book ‘Spirit of Law’ (1748). Basically the theory of Separation of Power propounded by Montesquieu was the result of his conclusion that the citizens of Britain were enjoying better personal liberty than in France because England had declared itself a constitutional monarchy in the wake of its Glorious Revolution. The constitutional monarchy as adopted by Britain in the late 17th Century in its very nature was entirely different than the Constitution we the people have adopted. The theory of Separation of power as given by Montesquieu is qualitatively different. It was given in different times and different backgrounds. The role of Legislature as understood in the present era was also different. The

magnitude of legislation and various complicated statutes, which have been brought about during these 250 years has completely changed in comparison to what it used to be 250 years ago. What is true about legislation is true about executive and judiciary. The question then is, are we going to depend on the theory of Separation of Power, which has demarcated the area of respective organs in watertight compartment or we are going to accept a ground reality that three organs

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cannot work in unison. However, one factor which is common even today is that the theory of Separation of Power is for the optimum welfare of the common man. It has been commented about the theory of Separation of Power that it is no way an absolute theory nor Montesquieu ever...