Judicial Review refers to the power of the judiciary to review and determine the validity of a law or an order while Judicial Activism refers to the use of judicial power to articulate and enforce what is beneficial for the society in general and people at large. Judicial Activism also means the power of the Supreme Court and the High Court but not the subordinate courts to declare the laws as unconstitutional and void.
What is Judicial Review?
The Constitution of India is based on the basic principle of “separation of powers”, hence, there are mainly three wings of the State, namely, Legislature, Executive and Judiciary. Each wing of the State has the power to act in its own sphere of activity. Legislature is responsible for making laws. Executive is responsible for making policies (subject to law), implementing them, and running the administration. Judiciary has to apply laws, interpret laws, and decide disputes and deliver justice. This is only a basic description of their activities. Generally, the judiciary cannot and will not interfere in the policy decisions of the Government which are in the domain of the executive; however, there are situations where the courts may interfere in the policy decisions of the Government. For example, if a policy decision is in violation of the fundamental rights guaranteed under the Constitution, or in violation of other provisions of the Constitution, the courts may intervene. Likewise, if a policy decision violates an Act of the Parliament or the Rules made thereunder, the courts may again intervene.
The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution as Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country. The provisions of Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
India has an independent judiciary with extensive jurisdiction over the acts of legislature and executive. Judicial review can be defined as the doctrine under which legislative and executive actions are subject to review by judiciary. It is generally considered as a basic structure of independent judiciary. Hence, judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority or not.
Judicial Review can be classified into three categories:
- Judicial Review of Legislative Action: It means the power to ensure that the law passed by legislature is in accordance with provisions mentioned in the Indian Constitution.
- Judicial Review of Decisions: It means that when a statute is challenged on the ground that it has been passed by the legislature without authority or rights, it is for the courts to decide whether the law passed is valid or not.
- Judicial Review of Administrative Action: It is a mechanism of enforcing constitutional discipline over administrative agencies while exercising their powers.
In 2015, The Supreme Court of India laid down the Section 66A of the IT Act as it was against the Fundamental Rights- the Right of Speech as guaranteed by the constitution under Article 19(1)(a).
What is Judicial Activism?
Judicial Activism is defined as a philosophy of judicial decision making whereby judges allow their personal views regarding a public policy instead of constitutionalism and is a way through which relief is provided to the disadvantaged and aggrieved citizens as it is providing a base for policy making in competition with the legislature and executive. For example, Suo Motu (on its own) cases, Public Interest Litigations (PIL), new doctrines etc.
Suo Motu cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party.
Judicial activism has arisen mainly due to the following reasons:
- Failure of the executive and legislature to act.
- Plaguing of the entire system by ineffectiveness and inactiveness.
- Failure of legislature to discharge its responsibilities.
- Weak and unstable government. For Example: Hung Parliament
- Failure of the government to protect the basic rights of the citizens or to provide an honest, efficient and just system of law and administration.
- Misusage of the courts of law by the ruling party for ulterior motives. For Example: Emergency Period
- When the court on its own tries to expand its jurisdiction and confers on themself more functions and power.
Thus, Judicial Activism has no constitutional articles to support its origin and is an invention of the Indian Judiciary.
The uses of Judicial Activism in Indian Judiciary are:
- Keshavnanda Bharati Case: In this case, the Supreme Court invented the ‘Basic Structure Doctrine’, according to which, the Parliament has the power to amend laws without altering the basic structure of the constitution.
- I.C.Golaknath Case: In this case, the Supreme Court declared that the fundamental rights enshrined in part 3 are immutable and cannot be amendable.
- Reforms in Cricket: The Supreme Court set up Mudgal committee and the Lodha Panel to investigate the betting charges and suggest reforms. The Supreme Court also dismissed the BCCI officials for not adhering to the suggested reforms.
- Mid-Day Meals for Children: In this case, after a PIL was filed by an NGO, the Supreme Court held that mid-day meals should be made compulsory for all children.
Difference between Judicial Review and Judicial Activism
There is only a thin line of separation between review and activism. While judicial review means to decide if the law/act is consistent with the Constitution, judicial activism is more of a behavioral concept of the judge concerned. It is majorly based on public interest, speedy disposal of cases etc.
The power of judicial review is the court’s act as a custodian of the fundamental rights. Thus, the power of judicial review is recognised as a part of the basic Constitution of India while judicial activism is the extent, vigor and readiness with which courts exercise their power of judicial review. So, there is a marked difference between both of them.
With the growing functions of the modern state judicial intervention in the process of making administrative decisions and executing them has also increased. In addition, judicial activism, keeping in view the ideals of democracy, is in fact necessary to ensure that unheard voices are not buried by more influential and vocal voices.
- Article 13, Constitution of India
- Article 19(1)(a), Constitution of India
- Shreya Singhal vs Union of India, AIR 2015, SC 1523
- Keshavnanda Bharati vs State of Kerela, AIR 1973, 4 SCC 225
- I.C.Golaknath vs State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762
- Board Of Control For Cricket vs Cricket Aasociation Of Bihar & Ors 2016, 4235
- Antarashtriya Manav Adhikaar Nigraani vs State of Delhi, 2013,8683/2011