JUDICIAL REVIEW Vs JUDICIAL ACTIVISM

Difference Between Judicial Activism and Judicial Review

INTRODUCTION

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.

Judicial Review and Judicial Activism

Judicial Review

Judicial review is the notion under which the actions of the Legislative and Executive are subject to review by Judiciary. It is generally considered as a basic structure of independent judiciary.[1] Indian judiciary is independent and have jurisdiction over the legislative and executive heads to determine the validity of their actions. The term review has been concerned with the power of court to decide the acts of law and executive are inconsistent with the constitution. It is the duty of judges to maintain the balance of power, and to protect and ensure the human rights, right to life and liberty and fundamental rights to general public.

It can be classified into three categories:

  1. Review of Legislative Actions.
  2. Review of Administrative Actions.
  3. Review of Judicial decisions.

Judicial review of decisions: When a statute passed by the legislative authority is challenged on the grounds that it violates the constitution, it is up to the judiciary to decide if the statute is unconstitutional or not. Also, if any act has been passed without authority or rights, decided by the courts, no legislature can have power over states to enforce the same.

Judicial Activism

Judicial Activism is mainly based on public interest, speedy disposal of cases etc. The assertion of Judiciary and its power of enforcement is Judicial Activism. Public Interest Litigation (PIL) has a big role in making judicial activism possible in India. PIL has introduced a new way of judiciary’s involvement in Public administration. The legal doctrine that restrained anyone but the victim to approach court was overthrown by the concept of PIL.

Golak Nath[2] case is an example of judicial activism in the Supreme Court. Earlier it was a holding that Parliament in exercise of its constituent power can amend any provision of the Constitution. But despite the previous holding, the decision was changed. By a majority of 6 against 5, it was declared that the fundamental rights as enshrined in Part III of the Constitution are immutable and cannot be touched even by the amendatory process. The Supreme Court declared that the Indian Parliament has no power to amend any provisions of the part III of the Constitution.

In the case of Keshavananda Bharati[3] a burial to the controversy of amendment of any of the provisions of the Constitution was given. By a majority of 7 against 6, it was held that under Article 368, Parliament has power to amend any provision in the Constitution undoubtedly but the amendatory power does not extend to alter the basic structure of the Constitution. Hence, the basic structure of the constitution shall remain untouched.

JUDICIAL REVIEW Vs JUDICIAL ACTIVISM

There is a thin line between judicial review and judicial activism. Judicial activism is more of a behavioral concept and based on popular opinions of the judge concerned. Judicial review is the process of reviewing the laws and checking the validity of the laws passed by the legislature. On the other hand, judicial activism is a role taken by the Judiciary to dispense social justice. Judicial review comes from the constitution itself, from the Article 13[4] of the Indian Constitution. Judicial activism has no base in Constitution. It was invented by the Indian judiciary itself.

Judicial review is a way 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.

CONCLUSION

Judicial Review and Judicial Activism both are highly valuable assets in Judiciary, they are both developing concepts. It is to maintain social justice and keep balance between the law and welfare of the public. Judicial Activism is an obligation of the Judiciary. It is to be shouldered and not to be misused by the judiciary when occasion arise and demand the action. Otherwise, the judiciary will fail to qualify the obligations to the people according to the spirit of the Constitution.

Judicial review has a big role in justification of the function of constitutional supremacy. The supremacy of Constitution is convincing the public welfare and 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.


[1] Indira Gandhi vs. Rajnarain case

[2] Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)

[3] Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461

[4] ARTICLE 13. Laws inconsistent with or in derogation of the fundamental rights.

Categories: Law and Order

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