Structure of the Answer:

This is a direct question- write the definition of Judicial review and Judicial activism, how one has led to the other. Then, write about the Merits and the issues related to Judicial activism.

1. Definition- 30- 40 words
2. merits and Demerits of JA- 100-120 words

Content

Judicial Review

• Though legislature has the power to make laws, this power is not absolute. Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.
• In India, by basis of Arts. 32 and 136, the Supreme Court can exercise the power of judicial Similarly, under Art. 226 and 227 High Courts have a power of judicial review.
• 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.
• Examples of Judicial Review: The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution

Features of Judicial Review in India:

1. Judicial Review Power is used by both the Supreme Court and High Courts:
2. Judicial Review of both Central and State Laws:
3. Limitations: Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the Constitution.

Justification of Judicial Review:

1.  A very large number of the supporters of Judicial Review do not accept the arguments of the They argue that Judicial Review is an essential and very useful system for Indian liberal democratic and federal system. It has been playing an important and desired role in the protection and development of the Constitution.

1. Judicial Review is essential for maintaining the supremacy of the

2. It is essential for checking the possible misuse of power by the legislature and

3. Judicial Review is a device for protecting the rights of the

4. No one can deny the importance of judiciary as an umpire, or as an arbiter between the centre and states for maintaining the federal

5. The grant of Judicial Review power to the judiciary is also essential for strengthening the position of It is also essential for securing the independence of judiciary.

6. The power of Judicial Review has helped the Supreme Court of India in exercising its constitutional

7. The possibility of abuse of is power of by the Judiciary is very less because several checks have been in existence:

• Lack of a clear statement of this power in any article of the constiution
• Judicial Review is not possible on some The Parliament can place laws aimed at securing socio-economic reforms in the 9th Schedule of the Constitution. This makes these immune from Judicial Review.
• The scope of Judicial Review stand limited to only legal and constitutional cases
• The Supreme Court is itself bound by the Constitution of India and the Parliament can amend the constitution
• The grant of specific fundamental rights to the also limits the scope of Judicial review
• The Parliament can pass laws and amendments for overriding the hurdles created by Judicial Review.

Judicial Activism

• Judicial activism denotes a more active role taken by Judiciary to dispense social justice. Judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government and government policies and also administration. It is a way through which justice is provided to the disadvantaged and aggrieved citizens. Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the When we speak of Judicial Activism, we point fingers to the invented mechanisms which have no constitutional backing (Eg: Suo moto (on its own) cases, Public Interest Litigations (PIL), new doctrines etc).
• From where does the power of Judicial Activism come from: Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America
• Suo Motto 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.
• Although the earlier instances of Judicial Activism was connected with enforcing Fundamental Rights, nowadays, Judiciary has started interfering in the governance issues as well
• Examples of Judicial Activism: Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL, the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren, the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi

Origin of Judicial Activism and its course in India

The Constitution has three instrumentalities — Executive, Legislative and Judiciary. The implementation of the State’s laws and policies is the responsibility of the Executive. Whereas, the Parliament consisting of two Houses and legislatures at the State level, makes law. In general, our Constitution works in harmony with these instrumentalities.

However, when the executive or legislature acts arbitrary, or in contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. Any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights and onus lies on the Judiciary to provide justice. This conduct of the judiciary is referred as Judicial Activism.

In India, there are two major aspects of Judicial Activism. The first comes in the form of PIL where various directions issued by the courts to the government authorities protecting the rights of the citizen, for example; cases like Agra Protection Home case and Bihar undertrail case etc. The second aspect is in the field of Interpretation of Fundamental Rights, particularly the right to equality (article14), right to freedom (article 19), and the right to Life and personal liberty(article 21). For example, in KeshavanandBharti case, 1973, the Supreme Court formulated the doctrine of ‘Basic Structure’ which restricts the power of Parliament to amend certain features of Constitution.

In the trend of Judicial Activism, a number of cases have been decided by the Judiciary protecting the rights of the people. It is due to Judicial Activism, corruption has much been exposed in higher offices, and thereby initiating penal action against politicians and public servants.

Merits of JA

• In recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of public frustration with the democratic process. That is why the Supreme Court had to expand its jurisdiction by, at times, issuing novel directions to the executive
• Failure on part of the legislative and executive wings of the Government to provide ‘good governance’ makes judicial activism an imperative. Delivering justice to a population of over a billion does not sound like and never will be an easy task. It however becomes increasingly difficult in a country like India
• Violation of basic human rights has also led to judicial activism. Also, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance
• Some other situations that lead to judicial activism are follows:
  • In case of a hung parliament where the government is very weak and instable
  • When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration
  • When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and
  • Judicial activism is the practice going beyond the normal law for the jury. There are some very important cases where judicial activism plays an important role like Bhopal gas tragedy and the Jessica Lal Murder case are among the top Money and muscle power tried to win over the good. But lately, it was with the help of judicial activism that the case came to at least one decision.

Demerits

• However, the activist nature of the judiciary is often subjected to criticism. It is argued that the judiciary has usurped the role of the legislature and the
• Secondly, they have interfered in the area where they had no knowledge and
• Thirdly, critics also argue that courts are already over-burdened, and PILs would lead to judicial
• Undemocratic: The critics describe Judicial Review as an undemocratic It empowers the court to decide the fate of the laws passed by the legislature, which represent the sovereign, will of the people.
• Lack of Clarity: The Constitution of India does not clearly describe the system of Judicial It rests upon the basis of several articles of the Constitution.
• Source of from Administrative Problems: When a law is struck down by the Supreme Court as unconstitutional, the decision becomes effective from the date on which the judgement is delivered. Now a law can face Judicial Review only when a question of its constitutionality arises in any case being heard by the Supreme Court.
• Such a case can come before the Supreme Court after 5 or 10 or more years after the enforcement of that law. As such when the Court rejects it as unconstitutional, it creates administrative A Judicial Review decision can create more problems than it solves.
• Reactionary: Several critics regard the Judicial Review system as a reactionary system. They hold that while determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and conservative approach. It can reject progressive laws enacted by the legislative
• Delaying System: Judicial Review is a source of delay and inefficiency. The people in general and the law-enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in respect of the implementation of a They prefer to wait and let the Supreme Court first decide its constitutional validity in a case that may come before it at any time.
• Tends to make the Parliament less responsible: The critics further argue that the Judicial Review can make the Parliament irresponsible as it can decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness of a law passed by it.
• Fear of Judicial Tyranny: A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review It gives a decision by a simple majority. Very often, the fate of a law is determined by the majority of a single judge. In this way a single judge’s reasoning can determine the fate of a law which had been passed by a majority of the elected representatives of the sovereign people.
• Reversal of its own decisions by the Supreme Court: It is on record that on several occasions the Supreme Court reversed its earlier decisions. The judgment in the Golaknath case reversed the earlier judgments and the judgment in the Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment was held valid, then invalid and then again valid. Such reversals reflect the element of subjectivity in the judgements

Judicial Overreach

The line between Judicial activism and Judicial Overreach is very narrow. In simple terms, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.

Examples of Judicial Overreach: What makes any action activism or overreach is based upon the perspective of individuals. But   in   general,  striking   down   of   NJAC   bill   and   the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach.

Thus, judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non- statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.

The Judiciary cannot take over the functions of the Executive. The Courts themselves must display prudence and moderation and be conscious of the need for comity of instrumentalities as basic to good governance. Judicial activism has to be welcomed and its implications assimilated in letter and spirit. An activist Court is surely far more effective than a legal positivist conservative Court to protect the society against legislative adventurism and executive tyranny. When our chosen representatives have failed to give us a welfare state, Judiciary plays an active role. In judicial activism, the judge places his final decision with his heart and mind, which is emotionally handled.

In India, judiciary has become the centre of controversy, in the recent past. Judicial Activism is gaining prominence among the citizen in the form of Public Interest Litigation (PIL), and citizens are getting access to justice.