5 Point Something on Judicial Review and Judicial Activism

  • INRODUCTION

In the enforcement of law, the Judiciary is in charge of three roles, firstly, as an interpreter of the constitution to eliminate any ambiguity in the language of the provisions given in the constitution; secondly, as the protector of fundamental rights which are guaranteed by the constitution to its people; and thirdly, to resolve the disputes which have been appealed after being heard in the lower judiciary.

In India the judiciary is the only authority that interprets the Constitution. By this it is meant that the Judiciary acts like the protector of the Constitution. It prevents the harm done by the executive and legislative. It provides the general public their rights that have been prescribed in the Constitution under the Directive Principles of State Policy. Judicial Review is the power of judiciary to review the laws and determine their validity. Judicial Review has not been defined in the Indian Constitution. It does not direct judicial system to practice the judicial review but it is deep rooted in the constitution itself. For instance, Article 13 states that ‘all laws in force in the territory of India before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void.’

In this sense ‘judicial activism’ is treated as a necessary consequence of judicial review. Assertion of judiciary and its powers is judicial activism. The Indian courts have achieved readiness in exercising their power to cherish the values of constitution to an extent that Judicial Review has taken form of Judicial Activism. In other words, Judicial Activism is bringing justice to the doorstep of people, especially who are vulnerable. It is not something that has been invented by the courts but the lawyers, i.e. the activists themselves. It has its roots in the Article 21, ‘Right to life and liberty of a citizen’. Precisely, it is a philosophy which involves the personal views and understandings of a judge with regard to a statute. It is activism regarding a public policy and its benefits instead of constitutionalism.

  • PROS AND CONS

JUDICIAL REVEIW

PROS

  • It offers a route to justice for those adversely affected by public body decision making
  • It performs an essential tasks in that it allows the courts and judiciary oversight of government decision making, be that central or local government, or parts of the state that implement government policy.
  • Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. If two laws conflict with each other, the Court must decide on the operation of each.

CONS

The concept of Judicial Review does not consist of negative aspects but here are some limitations of the Judicial review.

  • Only the procedure followed by the authority in reaching the decision can be checked not the decision. The court is only allowed to check and limit the procedure not the decision.
  • The power is delegated to superior courts only, i.e. Supreme Court and High Courts.
  • The court cannot be involved in policy matters and political doubts unless absolutely necessary.
  • It is temporary in nature. Law once passed may become unconstitutional with changed situation; this may create vacuum in legal system. Hence, it can be said that directions given by court would be binding only till legislation is enacted.
  • The court can interpret and invalidate a law but it cannot itself make laws.

JUDICIAL ACTIVISM

PROS

  • It provides a system of checks and balances to the other government branches. Judicial Activism is a delicate exercise involving creativity. It brings out required innovation in the form of a solution.
  • Judicial Activism provides judges to use their personal wisdom in cases where the law failed to provide a balance.
  • Judicial Activism also provides insights into the issues. The reason why this is a good thing is that it shows the instilled trust placed in the justice system and its judgments.
  • Many a time public power harms the people, so it becomes necessary for the judiciary to check misuse of public power.
  • It provides speedy solutions where the legislature gets stuck in the issue of majority.

CONS

  • Judges can override any existing law. Hence, it clearly violates the line drawn by the constitution.
  • The judicial opinions of the judges become standards for ruling other cases.
  • Judgment may be influenced by personal or selfish motives. It can further harm the public at large.
  • Repeated interference of courts can erode the faith of the people in the quality, integrity and efficiency of governmental institutions.
  • Courts limit the functioning of government, when it exceeds its power and to stop any abuse or misuse of power by government agencies.
  • PRECEDENT CASES

JUDICIAL REVIEW

  • Indira Gandhi vs. Raj Naraian
  • Marbury vs. Madison
  • Chandra Kumar vs. Union of India and others

JUDICIAL ACTIVISM

  • Keshvanand Bharati vs. State of Kerala
  • Minerva Mills vs. Union of India
  • SP vs. Union of India
  • DIFFERENCE BETWEEN JUDICIAL REVIEW AND JUDICIAL ACTIVISM
Judicial review is a through which a court can review an administrative action by a public body and safeguard declarations or orders. Judicial activism means judicial rulings based on personal or political considerations rather than on existing law. 
The power of Judicial Review comes from the Constitution of India itself (Article 13). The authority of judicial review is suggested to protect and implement the fundamental rights defined in Part III of the Constitution. Judicial Activism also has its roots in the Constitution of India. It has its roots in the Article 21, ‘Right to life and liberty of a citizen’.
Judicial review is concerned with the power of the Court.Judicial activism is concerned with the manner in which the power is being exercised.
Power of judicial review follows from various provisions of the Constitution of India itself like Articles 13(2), 32, 226, 227,136,141 etc.Judicial activism on the other hand is more to do with the attitude of a judge handling the case and is thus an attribute of the personality of the judge other than any provisions in the legal system.
   
  • SUMMARY

It can be said that judicial review and judicial activism is a highly developing and complex concepts. Judicial review has its root long back and its scope and extent varies from case to case. The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview. The judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds.

Judicial Activism is an obligation to be shouldered and not to be shirked by the judiciary when occasion and opportunity arise and demand the same. Otherwise, the judiciary will be failing to redeem the obligations to the people in accordance with the letter and spirit of the Constitution.

Judicial review has sound justification in the function of upholding constitutional supremacy. The supremacy of Constitution itself is embedded in convincing facts of public confidence. The role of judiciary is that of sentinel qui vive (on guard). The role of judiciary in the domain of review of legislation and administrative action has reinforced faith of people in good law and good governance. Judicial review and judicial activism has been treated as the most essential function of the judiciary to set right the lapses in all the administrative actions in the interest of justice.