Author: Payal Kumari

Introduction 

This article deals with judicial activism and judicial review, which are important concepts in the functioning of the judiciary, as it plays a vital role in shaping law and society. Judicial review is a constitutional mechanism that allows courts to check the validity of laws and government actions, ensuring they do not violate the Constitution. In contrast, judicial activism is a more proactive approach, where judges interpret laws expansively and sometimes, they go beyond traditional boundaries to promote social justice and address contemporary issues so that the issue can be solved. Understanding both concepts is important to understanding how justice is delivered and how the balance of power is maintained in a democratic system.

This article mainly deals with the meaning, scope, criticism, as well as differences between judicial review and judicial activism. furthermore, it discusses with the articles, 13,32 and 226, which give the power to the Supreme Court and High Court to review the law. This helps in protecting constitutional values in India. 

Judicial review

Meaning of Judicial Review

Judicial review is the power of the judiciary to examine the legislative and executive’s actions. it gives the right to the judiciary body to invalidate any law that conflicts with the constitution. It also ensures that no government body exceeds its power while enjoying its rights and doing its duty. 

It also takes a look at legislative and executive branches’ actions so that they don’t misuse or exceed their power. Judicial review is done in both cases 

• Legislation 

Whenever the parliament or state legislature passes a law, the courts have the power to examine whether the law violates any constitutional provision, which is basically the fundamental rights or the basic structure of the Indian Constitution. 

• Executive Actions

Whenever there is a government order, policy or any administrative action taken, then the judiciary has the power to review to ensure that the legal authority does not exceed its power while exercising its duty.

The purpose of it is to ensure that no law infringes on basic human rights, which are guaranteed under part under Part III of the Indian Constitution (Articles 12-35). This also ensures that the Constitution is the highest law of the land, no one is above it, so the bodies of government should work towards achieving its goal.

Landmark Cases of Judicial Review 

The doctrine of judicial review was introduced in the landmark U.S. Supreme Court case Marbury v. Madison (1803), where Chief Justice John Marshall clarified the court’s duty, saying no one can stop a court from interpreting the law and striking down any law that is in conflict with the Constitution. 

Apart from this, the first ever case of judicial review in India was Shankari Prasad Singh Deo v. Union of India (1951), which was a five-judge bench. In this case, Shankari Prasad, a zamindar, challenged the First Amendment, which was related to the added laws to the Ninth Schedule to protect land reform measures from being challenged in court in 1951. He argued these laws violated his fundamental rights, especially the right to property. So, the main issue that arose was whether constitutional amendments are subject to judicial review under Article 13. Then the court gave the judgment that Parliament has unlimited power to amend the Constitution, including fundamental rights. 

However, the judgment was overruled in the case of Golaknath v. State of Punjab (1967), where it was said that parliament cannot amend fundamental rights.

Constitutional Articles Empowering Judicial Review

This power of judicial review comes mainly from Articles 13, 32, and 226. Where article 13 says If any law goes against Fundamental Rights, that law will be treated as void. The Supreme Court has the power to do judicial review under Article 32, and the High Court has the power to do judicial review under Article 226 whenever there is a violation of fundamental rights. 

Limitations of Judicial Review

1. There are certain actions done by the president, governors and parliamentary privileges which can’t be reviewed, such as the President’s decision to grant a pardon under Article 72 cannot normally be questioned in court unless there is evidence of misuse or bad faith.
2. Most of the time, courts avoid dealing with matters related to political matters and leave it to the legislature or executive unless there is a direct violation of the Constitution of India. Such an Example: The Supreme Court does not interfere with the Union Budget or economic policy decisions unless they violate fundamental rights.
3. Issues related to national security, foreign policy, or advisory opinions of the President are often treated as not suitable for judicial review. Such as the decision of the Government to go to war or sign a defence treaty cannot be challenged in court.
4. Most of the time, Courts face limitations regarding information, resources, and enforcement capability, which can hinder effective judicial review. E.g.- The court may order river cleaning like the Ganga, but cannot directly manage all agencies responsible, making enforcement difficult.
5. Excessive intervention by the judiciary among the branches of government can disrupt the separation of powers, which will lead to judicial overreach. Such as If the court starts making detailed rules for school syllabus or fuel pricing, it may be criticised for judicial overreach, because such tasks belong to the executive or legislature.
6. Judicial review depends on judges’ interpretation, which is very subjective in nature, leading to unpredictability of the judgment. Such as one bench may interpret freedom of speech broadly, while another may uphold restrictions, leading to different outcomes in similar cases.

Judicial Activism

Meaning of Judicial Activism

Judicial activism is proactive in nature, which means the judiciary takes parts active part in protecting citizens’ rights and ensuring justice, rather than waiting for another body to take action. In judicial activism, the judiciary interprets the law in such a way that not only talks about the application of statutes but also promotes social justice by protecting the rights of people by ensuring environmental protection, human rights of prisoners, child labour, bonded labour, and the rights of women and marginalised communities. It also fills the gap where the legislative or executive has failed to address the issues.

Judicial activism gained a lot of importance after the emergence of Public Interest Litigation (PIL), and also when the court relaxed the rules on locus standi where an individual or an organisation can file a petition on behalf of affected people who are not able to approach the court and can’t file a case for themselves.

Apart from PIL, mainly used by Justice P.N. Bhagwati and Justice V.R. Krishna Iyer Suo motu cognisance also has shaped judicial activism in India, which means “on its own motion”, where it refers to the power of courts, especially the Supreme Court or High Courts in India, to take up a case or initiate legal proceedings by themselves, without a formal complaint, petition, or request from any party. 

• Landmark Cases of Judicial Activism 

The Maharaj Singh v. State of Uttar Pradesh case (1976), primarily, this case was concerned with a land dispute involving the State of Uttar Pradesh and the Gaon Sabha. Where the State and Gaon Sabha filed suit to evict the defendant, who was a former zamindar, from an estate. But the trial court dismissed the suit. After that, the Gaon Sabha got demotivated and did not appeal in a higher court, but the State appealed in the high court as a “person aggrieved.” Later on, in this case, the High Court held that the State had no locus standi as the land had vested in the Gaon Sabha under a government notification.  The issue raised was whether the State had the legal standing or locus standi to appeal against the trial court’s dismissal despite the land vesting in the Gaon Sabha. When the case went to the Supreme Court then the court held that the State has the title and locus standi to sustain the action, stating it is not confined to individualistic or narrow legal rights. Because A wrong against community interest is also a wrong against the state.

Later on, Judicial Review was also done in landmark cases such as Maneka Gandhi v. Union of India (1978), Kesavananda Bharati v. State of Kerala (1973) and Vishakha v. State of Rajasthan (1997). 

Constitutional Articles Empowering Judicial Activism

Apart from article 13,32,226, articles 21 and 146 also talk about it. Article 21 ensures the right to freedom of life and personal liberty, which talks about the protection of all human rights. Article 142 gives the power to the Supreme Court to make any order or decision needed to ensure full and fair justice.

Limitations of Judicial Activism

1. Sometimes it undermines the value of the separation of powers as courts take an interest in the area legislature and the executive also.
2. Courts may exceed their power and interfere excessively in political or administrative matters, which can lead to overreach.
3. As courts can’t have every time expert in every area, such as environment, economy, or public health so they may lack in policy-making decisions in such specific areas.
4. Judicial decisions may sometimes be biased as it’s very subjective in nature, because personal opinion also has an effect, as well as the objective legal reasoning.
5. Judicial review leads to intervention of the court in government work, which can make the government less efficient.
6. The judiciary can also lose public trust if activism is perceived as arbitrary in nature by chance.

Comparative Analysis of Judicial Review and Judicial Activism

1. Judicial review is reactive in nature, which means it is case-based and focuses totally on judicial precedent. On the other hand, Judicial activism is proactive in nature as it takes initiative whenever there is a violation of fundamental rights or the basic structure, rather than waiting for other bodies to take action. 

2. Judicial Review ensures laws and actions comply with constitutional provisions, where Judicial activism promotes justice by rectifying governance gaps.

3. The Judicial Review’s scope is Narrower, which targets reviewing the constitutionality of legislation and executive decisions, where Judicial activism promotes justice by rectifying governance.

4. Judicial Review requires the affected party to have locus standi, whereas in judicial activism, courts can act Suo motu or on PILs, bypassing strict standing rules.

Conclusion 

Judicial review and judicial activism are both essential concepts of the judicial system, but most of the time, people get confused and try hard to understand their meaning and use them. But the judiciary has clarified the concepts with the evolution of the cases. In terms of judicial review, Shankari Prasad Singh Deo v. Union of India (1951) was the first time where concept was used. In terms of judicial activism, The Maharaj Singh v. State of Uttar Pradesh (1976) was the case that clarified the concept. Together, they help in protecting constitutional values, strengthening democracy, and ensuring accountability of the government of India, and for the development of the country, both are needed.