Distinguishing Between Judicial Review and Judicial Activism

Judicial Review

Judicial review is the power of the judiciary to examine the constitutionality of legislative acts and executive orders. It ensures that laws and policies do not violate the Constitution. The judiciary checks whether proper procedures have been followed and if the law is within the framework of the Constitution. Judicial review is thus a mechanism to uphold the rule of law and maintain the balance of power among the branches of government.

Key Features:

• Focuses on the legality and constitutionality of laws and actions.
• Operates within established legal norms and principles.
• Ensures that laws do not violate fundamental rights and the basic structure of the Constitution.

Judicial Activism

Judicial activism refers to the proactive role of the judiciary in protecting the rights of citizens and filling legislative or executive gaps. It often involves interpreting the Constitution and laws in a progressive manner to address contemporary issues. Judicial activism can lead to the judiciary stepping into the domains traditionally reserved for the legislature or executive, thus influencing public policy and administration.

Key Features:

• Involves a more expansive and creative interpretation of the law.
• May extend beyond the strict legal frameworks to address social and political issues.
• Often aims at achieving justice in the face of legislative or executive inaction.

Recent Behavior of the Indian Judiciary

In recent years, the Indian judiciary has often been seen engaging in judicial activism. This can be illustrated through several landmark cases and interventions where the judiciary has played a significant role in shaping policy and addressing issues of public interest.

Examples of Judicial Activism

1. Vishaka v. State of Rajasthan (1997)
   • The Supreme Court laid down guidelines to prevent sexual harassment at the workplace in the absence of specific legislation. These guidelines, known as the Vishaka Guidelines, were based on international conventions and were treated as law until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act in 2013.
2. Right to Privacy (2017)
   • In Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court declared the right to privacy as a fundamental right under the Indian Constitution. This judgment was crucial in shaping subsequent debates on data protection and surveillance.
3. Sabarimala Case (2018)
   • The Supreme Court, in Indian Young Lawyers Association v. State of Kerala, lifted the ban on the entry of women of menstruating age into the Sabarimala temple. The decision was based on principles of gender equality and non-discrimination.
4. Decriminalization of Homosexuality (2018)
   • In Navtej Singh Johar v. Union of India, the Supreme Court decriminalized consensual homosexual acts, overturning Section 377 of the Indian Penal Code to uphold individual dignity and personal liberty.

Analysis

The above examples illustrate that the Indian judiciary has increasingly taken on a proactive role in addressing issues that affect society at large. This behavior aligns more with judicial activism than traditional judicial review. The judiciary has often stepped in to fill the void left by the legislature and executive, ensuring that constitutional rights are protected and social justice is advanced.

However, judicial activism is not without its criticisms. It raises concerns about the overreach of the judiciary into the domains of the legislature and executive, potentially upsetting the balance of power. Critics argue that judicial activism can lead to unpredictability in the law and may undermine democratic principles by bypassing elected representatives.

Conclusion

While judicial review and judicial activism are distinct concepts, recent behavior of the Indian judiciary shows a tendency towards judicial activism. Through landmark judgments and proactive interventions, the judiciary has played a critical role in addressing contemporary social issues and protecting constitutional rights. While this has brought about significant social change, it also poses challenges regarding the separation of powers and judicial overreach.